Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Respondent companies (“Celanese”) commenced an action against the Appellant companies, represented by Borden Ladner Gervais LLP (“Borden”) alleging that the Appellants had misappropriated and misused proprietary information belonging to Celanese. Celanese was represented by Cassels, Brock and Blackwell LLP (“Cassels”) in Canada and by Kasowitz, Benson, Torres & Friedman (Kasowitz") in the United States.

On behalf of Celanese, Cassels obtained an ex parte Anton Piller order, permitting them to enter listed premises of the Canadian Bearing Ltd. to search, inspect, remove, detain and retain certain documents and records as set out in the draft order, in order to preserve evidence of the Appellants’ alleged activities. The court order did not specify process or procedure to be followed in the event that privileged documents were encountered. The search commenced in the afternoon of June 20, 2003 and continued until the early morning of June 21, 2003, with both paper and electronic documents being seized. The search and seizure was conducted by an employee of BDO Hayes Smith. Counsel for Cassels and for Borden were both present during the execution of the order, and effort was made to segregate those documents claimed as privileged. Privileged paper documents were placed in an envelope and marked as privileged and lawyers on both sides agreed that they would be held by BDO Hayes Smith until the determination of privilege could be made at a later date. Given the volume of material, each electronic document was not reviewed at the time of the seizure, but the hard drive and electronic files were removed and placed in a bag that was sealed on the site and initialled by a Borden lawyer and a Cassels lawyer. In addition, the BDO employee conducting the search was able to identify some privileged documents and these were segregated into separate electronic folders for later review.

All documents were taken to the BDO Hayes Smith premises, where on June 23, 2003, one of the Cassels solicitors gave the order to open the sealed bag containing the electronic files. The information was copied and provided to members of the Cassels firm and to the Kasowitz U.S. firm. The privileged documents were viewed by Celanese’s counsel in Canada and in the United States. A lawyer with the Kasowitz firm, Mr. Colvard, in reviewing the electronic files, noticed that some of the documents could have been privileged and segregated them into a separate file marked “privileged” and did not review them in substance or discuss their contents with anyone else in the firm. Borden moved to have Cassels and Kasowitz removed as solicitors of record and other related relief. This motion was denied, but the decision was overturned by the Divisional Court. On appeal to the Court of Appeal, the matter was sent back to the motions judge to apply a test formulated by the Court of Appeal to determine whether disqualification of the two law firms was warranted.