On July 27 the Supreme Court of Canada released its decision in Celanese Canada Inc. v. Murray Demolition Corp. Celanese Canada Inc. is not a criminal case, but the judgment has implications for all lawyers and clients in Canada. A law firm acting for the plaintiff in an industrial espionage law suit obtained and executed an "Anton Pillar" order, which operates like a private search warrant and is used to seize documents from a defendant without prior notice. In seizing the documents, the plaintiff's lawyers gained access to and reviewed materials that were covered by solicitor-client privilege as between the defendant and its lawyers. The Court held that the plaintiff's lawyers had no right to view these materials and failed to take adequate steps to avoid doing so. But the Court went further still and ruled that the plaintiff's lawyers could no longer act on the case. Their exposure to the privileged materials raised a real risk that they had obtained information that could be used to the detriment of the defendant in the proceedings. The only appropriate remedy, in the circumstances, was an order forcing their withdrawal as counsel for the plaintiff.

The decision in Celanese Canada Inc. shows just how seriously our courts view violations of solicitor-client privilege, and the lengths to which they will go to protect clients from prejudice caused by the unsanctioned release of such information. It is also in tune with the view that a lawyer who comes into possession of privileged documents relating to a non-client must not read (or stop reading) the documents, immediately return them to counsel for the privilege-holder and indicate the extent to which he or she is aware of the documents' contents. This approach is adopted in Rule 15, Chapter 5, of the B.C. Professional Conduct Handbook, but is found in few other Canadian ethical codes.

You can access the Celanese Canada Inc. case by clicking here.