E-Brief Sept - Oct - The Advocates' Society

(Continued from page 13)the Court. Those principles, listed byBinnie J., concern basic protection forthe rights of the parties, the conduct ofthe search, and procedure following thesearch.The Court of Appeal had downplayedthe fact that plaintiffs' counsel onlycame into possession of privileged documentsthrough the execution of anAnton Piller order, describing theprocess as "inadvertent." Justice Binnieaccepted the Society's submission thatthe notion of "inadvertence" was analyticallyunhelpful, because it conflates twoquestions that should be distinct: (a)how did the documents come into thepossession of the plaintiff or its counsel;and (b) what did the plaintiff and itscounsel do upon recognition that thedocuments were potentially subject tosolicitor-client privilege. Undoubtedly,plaintiffs' counsel did not intend toobtain solicitor-client privileged documentsfrom the defendants. But plaintiffs'counsel and the supervising solicitorhad failed to ensure that the order orthe procedure followed in executing theorder sufficiently safeguarded thedefendants' rights.Regarding the appropriate remedy,Justice Binnie accepted the submissionsof the Society and the CanadianBar Association that a range of factorsshould be considered. On the facts ofthe appeal, Binnie J. held that theappropriate remedy was disqualificationof plaintiff's counsel.Celanese contains several key elements.First, it confirms that theMacDonald v. Martin Estate test appliesto disqualification motions generally.Second, it establishes that the disqualificationtest in that case is not limited tosolicitor-client relationships -- duties canextend to other parties too, includingopposing parties. Third, it sets out clearprinciples to govern Anton Piller ordersand their execution. Fourth, it confirmsthe extreme and extraordinary nature ofAnton Piller orders. Finally, it confirmsthe high value placed on protectingsolicitor-client privilege.We express our gratitude to CliffordLax, Q.C. and Paul Michell of LaxO’Sullivan Scott LLP, who representedThe Advocates’ Society in itsintervention in the Celanese appeal.14When Real Estate MattersFor more than 30 years, Clayton Research has beenproviding the legal community with independent advice andexpert witness testimony pertaining to:• real estate and land development agreement disputes• property value impacts – environmental or expropriation• development approvals• construction industry• real estate market context and economic analysisWe’re the ExpertsUrban and Real Estate Economists416-699-5645 www.clayton-research.com 1-800-689-4425The Advocates’ Society Mission StatementThe Advocates’ Society is the professional organization for advocatesin Ontario. As such, our mission is to:• be the voice of advocates in Ontario;• promote ethical and professional practice standards for advocates;• expand our leadership role in teaching the skills of advocacy;• protect the independence of the bar and the judiciary, and• foster collegiality among membersVOLUME 18, NO. 1, SUMMER 2006