Almecon Industries Ltd. v. Nutron Manufacturing Ltd.
A-208-94
McDonald J.A.
18/8/94
20 pp.
Appeal from order removing Burke-Robertson as solicitors of record for plaintiff-Almecon alleging patent infringement in two separate actions against Nutron and Anchortek-Marcus Gallie previously acting as solicitor for Anchortek Ltd., now employed by Burke-Robertson and acting for Almecon-Both defendants raising similar defence of alleged invalidity-Solicitors for Nutron and Anchortek agreeing to cooperate in preparing respective defences-Various discussions between respective solicitors and between Anchortek's principal and patent lawyer retained by Nutron's firm-Nutron seeking removal-Trial Judge adopting test in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 for determining whether disqualifying conflict of interest, i.e. whether public, represented by reasonably informed person would be satisfied no use of confidential information would occur-Holding (1) Gallie received confidential information attributable to solicitor and client relationship relevant to action against Nutron; (2) risk will be used to prejudice of client-Concluding standards of professional conduct consistent with recognition of confidential relationship in information flowing between solicitors for defendants-Presumption confidential information conveyed not rebutted-Whether principles in Martin, particularly inference confidential information imparted to Gallie, apply herein where Nutron, not client of Gallie raising issue of disqualifying conflict of interest-Appeal dismissed-Cases confining Martin principles to existence of direct solicitor-client relationship considered-Confidential nature of particular relationship must be considered rather than narrowly focusing upon parameter of solicitor-client relationship-Working relationship between solicitors for Nutron, Anchortek premised on understanding any information conveyed confidential and could not be used by solicitors without clients' authorization-Not situation where confidential information obtained by way of undertakings between solicitors adverse in interest-Several decisions recognizing existence of legal relationship based on expectation of confidentiality tantamount to that of solicitor and client-Any communications between solicitors for Anchortek and Nutron originating in confidence would not be disclosed-Element of confidentiality essential to continued relations between parties who, while having common interest represented by different solicitors-While no solicitor-client relationship, concept of privileged communications outlined in Solosky v. The Queen, [1980] 1 S.C.R. 821 applicable-Relationship between solicitors of Nutron and Anchortek such that Nutron "informal client" of Anchortek's solicitors-Relationship entitled Nutron to expect any information imparted would partake of solicitor-client privilege-In these circumstances appropriate to include "persons associated with the client" in the word "client"-As to whether risk information will be used to prejudice of client, necessary to consider steps taken by firm to ensure no disclosure will occur- Burke-Robertson not making any attempt to isolate Gallie from Almecon litigation-Gallie even assisting in preparation of matter for trial-Second question in Martin properly answered in affirmative-Martin also emphasizing concern about appearance of impropriety-Goal to protect interests of individual litigant and public confidence in administration of justice-Given directions in relevant codes of professional conduct which prohibit acting against former client or person associated with that client in same or related matter, appearance of impropriety raised both in relation to Nutron's position and in relation to Gallie's duty to former client-Public, represented by reasonably informed person could not be satisfied no use of confidential information would occur in these circumstances-Right to retain solicitors of choice must be tempered by right of adverse party, whether former client or person reposing confidence in lawyer, to feel solicitor would not represent another party against him in related dispute-As noted in Manville Canada Inc. v. Ladner Downs (1993), 76 B.C.L.R. (2d) 273 (C.A.), S.C.C. imposing very high standard on legal profession where risk confidential information given to lawyer or his firm may come to knowledge of opposing interest-Martin test not restricted to solicitor-client relationship-Where previous relationship established clear nexus with solicitor's retainer, Martin test may apply-Question of disqualifying conflict of interest raising overriding policy concern with confidentiality of information imparted to solicitor-Nutron entitled to expect communications between its solicitors and solicitors for Anchortek would partake of solicitor-client privilege between Nutron and Gallie, former solicitor for Anchortek-Despite absence of direct solicitor-client relationship between Nutron and Gallie, nature of working relationship between two firms determinative of issue-Trial Judge properly applied presumption confidential information imparted and finding inference not rebutted.