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Legal Profession - Barristers and solicitors - Disqualification or removal

Thursday, March 16, 2017 @ 8:00 PM  


Appeal by Sikes and two companies from a Federal Court decision affirming a Prothonotary’s refusal to have Smart & Biggar removed as solicitors of record for the respondents, Encana, Cenovus and FCCL. In 2008, Sikes communicated with eight different law firms, including Smart & Biggar, seeking legal representation to enforce the appellants’ rights associated with a pending patent. Smart & Biggar declined to represent the appellants, citing a conflict of interest. In 2014, Smith & Biggar was appointed as the respondents’ solicitor. In 2015, the appellants filed a motion for removal of Smith & Biggar on the basis of the 2008 interaction with Sikes. The appellants submitted confidential information was imparted by Sikes and that legal advice was provided. The prothonotary, acting as the case management judge, dismissed the motion on the basis of the unchallenged evidence that the information communicated by Sikes was non-confidential and that no legal advice was provided. The Federal Court dismissed the appeal, finding no basis for interference with the prothonotary’s conclusion that no solicitor and client relationship materialized. The appellants appealed to the Court of Appeal.

HELD: Appeal dismissed. Sikes conveyed information to Smart & Biggar in the context of exploring a possible solicitor and client relationship. A presumption of confidentiality arguably extended to the information conveyed. Assuming the prothonotary recognized the presumption favoured the appellants, the decision turned on the clear and unchallenged evidence of Smart & Biggar, contrasted with the misleading evidence of Sikes. The prothonotary’s conclusion that no relevant confidential evidence was provided by Sikes did not result from improper application of the presumption and was available on the whole of the evidence. It followed that the Federal Court had no reason to intervene with the prothonotary’s finding.