This was a motion to remove Smart & Biggar/Fetherstonhaugh LLP as solicitors of record for the Defendants. One of the Plaintiffs alleged that he provided confidential information during the course of preliminary discussions with counsel at Smart & Bigger. Smart & Biggar defended the motion on the basis that only information necessary to run a conflict search was solicited from one of the Plaintiffs, Dr. Sikes, and if anything, only general information relating to patent litigation in Canada would have been provided. The Court noted the test requires the determination of (1) whether a lawyer received confidential information attributable to a solicitor-client relationship; and (2) if so, is there a risk that the relevant confidential information will be used to the prejudice of the former client.
The Court determined that the Plaintiffs had not met their burden of demonstrating that a "reasonably informed member of the public in possession of all the relevant facts would conclude that there was a solicitor and client relationship between Dr. Sikes and Smart & Biggar or that confidential information relevant to the matter at hand was provided to Mr. Garland." Costs were awarded to the Defendants forthwith in any event of the cause.