BARRISTERS AND SOLICITORS |
Jonathan boutique pour hommes Inc. v. Jay-Gur International Inc.
T-486-98
Blanchard J.
20/12/00
12 pp.
Motion to remove law firm Spiegel Sohmer as solicitors of record for plaintiff--In December 1996, defendant's President, Jonathan Gurman, met with counsel Robert Raich from law firm of Spiegel Sohmer--Another member of Raich's law firm sending defendant cease and desist letter, draft statement of claim regarding alleged trade-mark infringement by defendant--Claim made on behalf of plaintiff--Spiegel Sohmer transferring file relating to dispute at bar to firm Leger Robic Richard--In 1998, plaintiff involved in another trade-mark-related dispute in which firm Leger Robic Richard had conflict of interest--Plaintiff asking Richard Levy, who had joined firm Spiegel Sohmer in June 1997 to take over case--Raich acting as counsel for defendant from December 1996 to summer of 1997--During exercise of mandate, Raich had discussions with defendant's executives, accountant, received confidential information on defendant's expenses, sales figures, taxation structure, business strategies--Main issue whether law firm Spiegel Sohmer in conflict of interest with respect to representation of plaintiff against defendant such that ought to be removed as solicitors of record for plaintiff--Parties relying on test established by S.C.C. in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235--Burden on counsel for plaintiff to show no information imparted which could be relevant to matter at hand during prior solicitor-client relationship --Relationship between Robert Raich, Jonathan Gurman sufficiently related to dispute between plaintiff, defendant for Court to infer confidential information imparted--Robert Raich, Spiegel Sohmer received confidential information attributable to solicitor and client relationship relevant to matter at hand--Measures taken by counsel for plaintiff, Spiegel Sohmer, insufficient to ensure no disclosure would occur--"Self-governing" undertakings not sufficient to meet burden established by S.C.C. in MacDonald Estate decision--Precedence must be given to protect confidential information--Delay cannot cure conflict of interest--Defendant knew of alleged conflict on June 18, 1999, on filing of change of solicitors, should have acted at that time--Due to delay in bringing motion, plaintiff will likely incur additional expense should it be required to retain, instruct new solicitors--Law firm Spiegel Sohmer in conflict of interest herein--Motion granted.