Federal Appeal


No evidence confidential information actually used in preparation of notice of allegation

When appellant received notice of allegation, it was alarmed to see law firm of its predecessor, which had represented it in five proceedings respecting same medicinal ingredient, was representing respondent. As soon as appellant registered objection, firm resigned. However, appellant was still concerned about misuse of confidential information so applied for further relief. Federal Court granted order disqualifying respondent’s in-house counsel, who had previously been employed by firm in question, but found it did not have jurisdiction to declare respondent’s notice of allegation invalid. Cross-appeals by parties from Federal Court decision. Cross-appeals dismissed. Federal Court did not properly apply Martin test in relying on inference rather than actual evidence lawyer had received confidential information about medicinal ingredient in course of his previous employment. However, result was same, as this rendered lawyer’s disqualification automatic. Court could always consider conflicts of interest; however, there was no evidence appellant’s confidential information was actually used in preparation of notice of allegation, which consisted of objectively known facts and matters of law, so declaring it invalid could overshoot mark. Tests for disqualification did not even hint at this type of remedy so, while it was open that it may be appropriate in exceptional circumstances, evidence did not support it in this case.

Valeant Canada LP v. Canada (Minister of Health) (Feb. 24, 2014, F.C.A., John M. Evans J.A., Johanne Gauthier J.A., and David Stratas J.A., File No. A-221-13) 238 A.C.W.S. (3d) 495.

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