F.P. Bourgault Industries Air Seeder Division Ltd. v. Flexi-Coil Ltd.
T-245-94
Giles A.S.P.
27/10/95
4 pp.
Motion for production of documents for which solicitor- and-client privilege claimed-Anything done by lawyer in connection with patent application not losing solicitor-and- client privilege just because lawyer also patent agent-"Common interest privilege", referred to by Lord Denning M.R. in Buttes Gas and Oil Co. v. Hammer (No.3), [1981] Q.B. 223 (C.A.), at p. 243 applied to documents arising from transactions in prosecution of patent before inventors formally assigned interest to plaintiff and unclear whether solicitor acting for plaintiff or inventors-Correspondence between solicitors and U.S. Associate privileged-Associate's function to prosecute patent of same invention in U.S.-Based on common interest privilege, privilege attaching to Canadian lawyer's legal advice not lost by communicating it to U.S. Associate, who may have been acting for different person, but one with common interest-Solicitor-and-client privilege not waived when Smart & Biggar, plaintiff's patent agent and lawyers signed filings containing statements as to patentability based on legal opinions, research-Reference to terms of document usually waives privilege in document-Documents not specifically indicating legal opinion relied upon-Action taken, or opinion formed and expressed as result of reading document not waiving privilege therein if neither mentioned nor specifically referred to-Adopting solicitor's letter of legal advice without giving any credit not waiving privilege in plagiarized document, even if solicitor as agent plagiarizing own legal opinion.