The court found no substantial risk of using information obtained in another case
The Federal Court of Appeal has refused to remove the plaintiffs' counsel in a class action lawsuit involving allegations of anti-competitive conduct by major technology firms.
The appellants in the case had sought to disqualify the counsel on the grounds that they had previously received confidential information during a different legal matter that could affect the fairness of the ongoing litigation.
The case centred around accusations under s. 45 of the Competition Act, involving companies Dye & Durham and DoProcess, part of a proposed class action asserting that the defendants conspired to increase prices of real estate conveyancing software, which allegedly harmed competition and violated Canadian competition laws.
The appellants argued that Calvin Goldman, formerly a lawyer with Goodmans LLP and later acting independently, along with Nicholas Cartel and Glenn Brandys of Cartel & Bui LLP, had a conflict of interest. They claimed that Goldman, during his prior engagements on related competition matters under s. 79 of the act had access to sensitive information that could disadvantage the appellants in the current s. 45 litigation.
However, the Federal Court of Appeal found no substantial risk of using this information in the current case. The initial court decision concluded that the information shared during Goldman's previous retainer was not sufficiently relevant to the current legal proceedings to warrant his disqualification. Moreover, the court determined that the matters of the previous and current retainers were not sufficiently related to presume that confidential information would inevitably be misused.
Despite recognizing a "limited but certain underlying commonality" between the provisions, the appellate court agreed with the lower court’s assessment that the legal contexts were distinct enough not to trigger concerns about the misuse of confidential information.
The Federal Court of Appeal underscored that while there is a legal framework to prevent conflicts of interest in legal representation, removing counsel should not undermine a party's right to counsel of their choice without substantial evidence of potential prejudice. The appellate court also emphasized the need for tangible evidence showing that any shared information during previous retainers would likely impact the current proceedings materially and adversely, which the appellants failed to provide.
Furthermore, the appeal court acknowledged the federal court’s finding of lack of direct connection between the shared information and the specifics of the current case. The federal court noted that the appellants provided only theoretical assertions without concrete evidence that confidential data obtained previously by Goldman would be used against them. Accordingly, the court dismissed the appeal.
