Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36, 2006 SCC 36 (2006)

Extract

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Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36, 2006 SCC 36 (2006)

SUPREME COURT OF CANADA

Citation: Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36

Date: 20060727

Docket: 30652

Between:

Canadian Bearings Ltd.,

Farrokh Khalili, Hossein Banijamali and

Canadian Petroleum Processing & Equipment Inc.

Appellants and

Celanese Canada Inc. and

Celanese Ltd.

Respondents

- and -

Advocates' Society and

Canadian Bar Association

Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.

Reasons for Judgment:

(paras. 1 to 71)

Binnie J. (McLachlin C.J. and Bastarache, LeBel, Deschamps, Fish and Charron JJ. concurring)

______________________________

Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36

Canadian Bearings Ltd.,

Farrokh Khalili, Hossein Banijamali and

Canadian Petroleum Processing & Equipment Inc. Appellants v.

Celanese Canada Inc. and

Celanese Ltd. Respondents and

Advocates' Society and

Canadian Bar Association Interveners

Indexed as: Celanese Canada Inc. v. Murray Demolition Corp.

Neutral citation: 2006 SCC 36.

File No.: 30652.

2005: December 12; 2006: July 27.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.

on appeal from the court of appeal for ontario

Civil procedure - Removal of counsel - Plaintiffs' lawyers seizing electronic documents from defendants' premises pursuant to Anton Piller order later found to include documents subject to solicitor-client privilege - Plaintiffs' lawyers conducting partial review of documents - Defendants seeking to remove plaintiffs' lawyers as solicitors of record - Whether onus on plaintiffs to rebut presumption of prejudice - Whether plaintiffs' lawyers should be removed.

Civil procedure - Anton Piller order - Requirements for order - Guidelines for preparation and execution of order.

Celanese sued Canadian Bearings for alleged industrial espionage. Following an ex parte application, a motions judge granted Celanese an Anton Piller order against Canadian Bearings. The order did not contain a provision dealing with privileged documents. It was executed by an accounting firm. The search was overseen by an independent supervising solicitor. The solicitors for Canadian Bearings, BLG, were also present at the search, but given the volume of electronic materials and the pace at which the search proceeded, BLG lawyers later complained that they were not given time to review the material adequately. Frequently, entire folders would be copied electronically without examination of individual documents. However, material that could be identified as potentially privileged was segregated into an electronic folder which was labelled "Borden Ladner Gervais". In the course of the search, about 1,400 electronic documents thought to be relevant, but not then screened for potential solicitor-client privilege claims, were downloaded by the accounting firm onto a portable hard drive and copied onto CD-ROMs. These were placed in a plastic envelope and sealed. The seal was initialled by a BLG lawyer and by the supervising solicitor. The envelope was then given to the accounting firm. Contrary to the express provision in the Anton Piller order, no complete list of the seized documents was made prior to their removal from the searched premises. A lawyer from the law firm of CBB, representing Celanese, later directed the accounting firm to copy the envelope's contents. The seal was broken without the knowledge or consent of BLG or Canadian Bearings, and the contents copied onto CBB's computer. A copy was also provided to Celanese's U.S. counsel, KBTF. When BLG became aware that privileged documents had been transferred to CBB and KBTF, it dispatched a letter requesting their immediate return. CBB and KBTF, rather than returning the documents as requested, advised BLG that the documents subject to the privilege claim had been deleted from their respective systems. Canadian Bearings then brought this motion to disq...

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