The Federal Court has upheld a decision to not remove counsel as solicitors of record for the defendants. The plaintiffs had argued that when they were seeking counsel for this proceeding they had imparted confidential information to the sollicitors who are now counsel to the defence.
It was revealed that the Prothonotary had found that during the initial phone call the solicitors obtained general information for the purpose of conducting a conflict of interest search. The Prothonotary had found that the review of the patent and further discussions regarding the technology and the marketplace did not occur. The Prothonotary declined to remove the solicitors from the case.
On the appeal, the Court found that this was a discretionary order of a case management judge that is founded upon significant factual findings and credibility findings for which the standard of review is very high. The Court upheld the decision that a reasonable person, with knowledge of all the relevant facts, would not form the belief that counsel to the defendants received confidential information as part of a solicitor and client relationship that could be used to the prejudice of the plaintiffs.