Merck & Co. v. Interpharm Inc.
T-1160-92
Jerome A.C.J.
18/1/93
5 pp.
Application by defendants to set aside order dismissing application for order staying action until plaintiffs retain alternate counsel and order directing removal of plaintiffs' present counsel as solicitors of record ([1993] 3 F.C. 774 (T.D.)) -- Plaintiffs' counsel herein also acting for plaintiff Eli Lilly Canada, Inc. in another action -- As result of execution of Anton Piller order in Eli Lilly action, plaintiffs' solicitors obtained information not in public record as to defendants' operations -- Defendants arguing since seizure under Anton Piller proceedings carrying with it undertaking not to use documents for any other purpose, plaintiffs' solicitors in untenable position and cannot continue to act -- Application dismissed -- Test for determining whether disqualifying conflict of interest set out in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 -- Basis for test exceptional nature of solicitor-client relationship -- Documentation herein obtained through adversarial process (Anton Piller proceeding) -- No previous confidential relationship between present solicitors and aggrieved defendants -- All documentation or information obtained must be known to party from whom seized, which seizure almost certainly resisted by them.