Groupe Tremca Inc. v. Techno-Bloc Inc.
A-623-98
Décary J.A.
10/11/99
8 pp.
Conflict of interest-Appeal from Trial Division judgment ((1998), 159 F.T.R. 1) ruling counsel for appellants disqualified from representing them because of conflict of interest with respondent-In 1990 counsel currently representing appellants consulted by respondent about marketing of product possibly infringing patent held by appellants-On receiving opinion issued by counsel, respondent marketed slightly different product from one about which it consulted counsel-In 1997 appellants, represented by same counsel who had formerly advised respondent, brought proceedings against respondent for infringement of patent on new product-Appeal dismissed-Conflict of interest herein prima facie falling within prohibition against lawyer who had acted for client acting against same client in same or related case-Consideration of MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, in which general rules applicable in conflict of interest cases laid down-Once law firm issues legal opinion leading client to adopt particular line of conduct, firm places itself in conflict of interest situation, no longer potential but actual, if subsequently takes it upon itself to act against client for activities relating to line of conduct-Firm which in such circumstances undertakes to represent second client will have difficulty persuading Court second client's right to retain its services takes priority over first client's right to assume loyalty of its counsel-Relationship in case at bar between retainer given to counsel for appellants in 1990 and retainer now relied upon by same counsel against former client-Equally clear relevant confidential information given to counsel for appellants by respondent-Finally, Supreme Court categorical counsel who has received relevant confidential information cannot act against former client: MacDonald Estate-Allowing solicitor to advise and act on behalf of clients with opposing interests, albeit successively, in same case without their agreement would undermine confidence litigant must have in relation to counsel, and would be incompatible with loyalty solicitor owes client-Such practice especially inadmissible given necessity not only to ensure independence and impartiality of solicitor but also to make this apparent-Price of ensuring justice not only done but seen to be done, in accordance with well-known maxim on which integrity of judicial system, of which solicitors are essential element, based-Such practice also in conflict with right of parties to full and equal hearing-Conclusions consistent with interpretation of conflict of interest by profession itself in Canadian Bar Association's Code of Professional Conduct.