Date: 20080312
Docket: T-830-05
Citation: 2008 FC
332
Vancouver, British Columbia, March 12, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ROBBINS
& MYERS CANADA, LTD.
Plaintiff
and
TORQUE CONTROL SYSTEMS LTD.;
and
ANDREW WRIGHT
Defendants
REASONS FOR ORDER AND ORDER
O’KEEFE J.
[1]
This is a
motion by the defendants pursuant to Rule 51 of the Federal Courts Rules,
S.O.R./98-106 for an order setting aside the order of Prothonotary Lafrenière
dated September 24, 2007 in which the Prothonotary found that the firm of Ridout
& Maybee LLP (Ridout) was disqualified from acting for the defendants in
this proceeding.
Background
[2]
The patent
at issue in the underlying proceeding is entitled, “Pull-through Tubing String
Rotator for An Oil Well” (the ‘975 Patent). The invention that was the subject
of the ‘975 Patent was initially owned by a company called Alberta Basic
Industries Ltd. (ABIL), whose employees conceived the invention.
[3]
ABIL
retained Peter Everitt (Everitt) then of Kvas Miller Everitt (Kvas Miller) to
prepare and file patent applications for the invention in both the United States and Canada. The applications named three ABIL
employees as the inventors (Ring, Blundell and Wright).
[4]
Everitt
filed an application for the invention in Canada on January 24, 2000. This application
was changed after Everitt no longer represented ABIL. The ‘975 Patent for the
invention issued late claiming priority from the US application. Kvas Miller remained the
agent and representative for ABIL in respect of the ‘975 application until
April 24, 2001.
[5]
ABIL
assigned the invention and the ‘975 application to Robbins & Myers Canada,
Ltd. (Robbins) on June 12, 2001. The ‘975 Patent issued to Robbins on December
14, 2004.
[6]
Robbins
issued a statement of claim against the defendants in May 2005. The statement
of claim alleged that the defendants had infringed various claims of the ‘975
Patent.
[7]
On May 27,
2005, Everitt spoke to Robbins’ solicitor and informed him that Kvas Miller had
been retained to defend the claim for the defendants and requested an extension
of time to file a statement of defence. At this point, Kvas Miller’s former
representation of ABIL was brought to Robbins’ solicitor’s attention but Robbins’
solicitor made no objection to the defendants’ representation by Kvas Miller at
this time. The defendants filed their defence in June 2005 and the defence
indicated that the firm of Kvas Miller was the defendants’ solicitor of record.
[8]
Counsel
for Robbins wrote to Kvas Miller on March 16, 2006, requesting that the firm
withdraw as counsel due to “clear conflict of interests” arising from its
previous involvement with the ‘975 Patent. Kvas Miller refused to withdraw.
[9]
In or
about June 2006, Chris Kvas (Kvas) and Everitt joined the law firm of Ridout
which has also refused to withdraw as counsel for the defendants.
[10]
Curtis
Ring (Ring), engineering manager for ABIL from 1997 to 2001, stated in his
affidavit that Everitt and his prior firm, Kvas Miller were privy to
confidential and privileged information concerning the ‘975 Patent divulged
during the preparation and filing of the ‘975 Patent.
[11]
In his
affidavit, Ring stated that in his conversations with Everitt he disclosed
confidential information about the invention, some of which was not disclosed
in the text of the ‘975 Patent. Ring cannot remember the specifics of the
conversations with Everitt but he does state that as a matter of normal
practice, these conversations would have necessarily included “discussions of
issues relating to the inventive features of the Invention, advantages over
prior rotators . . .”. In addition, Ring stated that there were “additional
confidential discussions about the inventive features, prior art, different
embodiments, meaning of the language and scope of the claims that were not incorporated
into the text of the ‘975 Patent”.
[12]
Andrew
Wright (Wright) was employed by ABIL as a manager salesman from 1996 to 1999. Wright
was not present during any of the conversations between Ring and Everitt
concerning the ‘975 Patent. Wright was told by Everitt that he (Everitt) had no
confidential information concerning any aspect of the ‘975 Patent or the
invention described in the ‘975 Patent, as any information he received was
found in the text of the document published by the Patent Office. This information
was provided by Wright in an affidavit.
[13]
Everitt
did not file his own affidavit. Wright stated the defendants’ lawyer did not
file an affidavit as the plaintiff said that the filing of such an affidavit
would preclude Ridout from acting on the motion to remove Ridout as the
defendants’ solicitors.
Analysis and Decision
[14]
Standard
of Review
The Federal Court of Appeal in Merck &
Co. v. Apotex Inc. 2003, 30 C.P.R. (4th) 40 at paragraphs 17, 18 and
19 stated:
This
Court, in Canada v. Aqua-Gem Investments Ltd.,
[1993] 2 F.C. 425 (F.C.A.), set out the standard of review to be applied to
discretionary orders of prothonotaries in the following terms:
Following in particular Lord Wright in Evans
v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski
v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of
prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the
sense that the exercise of discretion by the prothonotary was based upon a
wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to
the final issue of the case.
Where such discretionary orders are
clearly wrong in that the prothonotary has fallen into error of law (a concept
in which I include a discretion based upon a wrong principle or upon a
misapprehension of the facts), or where they raise questions vital to the final
issue of the case, a judge ought to exercise his own discretion de novo.
[MacGuigan J.A., at pp. 462-463; footnote omitted.]
MacGuigan
J.A. went on, at pp. 464-465, to explain that whether a question was vital to
the final issue of the case was to be determined without regard to the actual
answer given by the prothonotary:
It seems to me that a decision which can
thus be either interlocutory or final depending on how it is decided, even if
interlocutory because of the result, must nevertheless be considered vital to
the final resolution of the case. Another way of putting the matter would be to
say that for the test as to relevance to the final issue of the case, the issue
to be decided should be looked to before the question is answered by the
prothonotary, whereas that as to whether it is interlocutory or final (which is
purely a pro forma matter) should be put after the prothonotary's
decision. Any other approach, is seems to me, would reduce the more substantial
question of "vital to the issue of the case" to the merely procedural
issue of interlocutory or final, and preserve all interlocutory rulings from
attack (except in relation to errors of law).
This is why, I suspect, he uses the words
"they [being the orders] raise questions vital to the final issue of the
case", rather than "they [being the orders] are vital to the final
issue of the case". The emphasis is put on the subject of the orders, not
on their effect. In a case such as the present one, the question to be asked is
whether the proposed amendments are vital in themselves, whether they be
allowed or not. If they are vital, the judge must exercise his or her
discretion de novo.
To
avoid the confusion which we have seen from time to time arising from the
wording used by MacGuigan J.A., I think it is appropriate to slightly
reformulate the test for the standard of review. I will use the occasion to
reverse the sequence of the propositions as originally set out, for the
practical reason that a judge should logically determine first whether the
questions are vital to the final issue: it is only when they are not that the
judge effectively needs to engage in the process of determining whether the
orders are clearly wrong. The test would now read:
Discretionary
orders of prothonotaries ought not be disturbed on appeal to a judge unless:
a)
the questions raised in the motion are vital to the final issue of the case, or
b)
the orders are clearly wrong, in the sense that the exercise of discretion by
the prothonotary was based upon a wrong principle or upon a misapprehension of
the facts.
Issues
[15]
Are the
questions raised vital to the final issue of the case?
The issue in this case is whether the removal of
the Ridout firm as solicitors of record for the defendants is a question vital
to the final issue in the case. In my opinion, this question is not vital to
the final issue of the case. There is no evidence on the record that would
suggest that the Ridout firm is the only firm able to provide a defence for the
defendants.
[16]
Was the
Prothonotary’s order based upon a wrong principle or upon a misapprehension of
the facts?
In order to succeed, the defendants must show
that the order of Prothonotary Lafrenière was clearly wrong, in the sense that
his exercise of discretion was based upon a wrong principle or upon a
misapprehension of the facts. I will now review the law and the various errors
that the defendants state the Prothonotary made in his decision.
[17]
Law on
conflict of interest
In Blank v. Canada (Minister of Justice) 2006 SCC 34, the Supreme
Court of Canada stated at paragraph 26:
Much
has been said in these cases, and others, regarding the origin and rationale of
the solicitor-client privilege. The solicitor-client privilege has been firmly
entrenched for centuries. It recognizes that the justice system depends for its
vitality on full, free and frank communication between those who need legal
advice and those who are best able to provide it. Society has entrusted to
lawyers the task of advancing their clients' cases with the skill and expertise
available only to those who are trained in the law. They alone can discharge
these duties effectively, but only if those who depend on them for counsel may
consult with them in confidence. The resulting confidential relationship
between solicitor and client is a necessary and essential condition of the
effective administration of justice.
[18]
The
Supreme Court of Canada in McDonald Estate v. Martin, [1990] 3
S.C.R. at 1235 had the following to say about a qualifying conflict of
interest:
The
Appropriate Test
44 What
then should be the correct approach? Is the "probability of mischief"
standard sufficiently high to satisfy the public requirement that there be an
appearance of justice? In my opinion, it is not. This is borne out by the
judicial statements to which I have referred and to the desire of the legal
profession for strict rules of professional conduct as its adoption of the
Canadian Code of Professional Conduct demonstrates. The probability of mischief
test is very much the same as the standard of proof in a civil case. We act on
probabilities. This is the basis of Rakusen. I am, however, driven to
the conclusion that the public, and indeed lawyers and judges, have found that
standard wanting. In dealing with the question of the use of confidential
information we are dealing with a matter that is usually not susceptible of
proof. As pointed out by Fletcher Moulton L.J. in Rakusen, "that is
a thing which you cannot prove" (p. 841). I would add "or
disprove". If it were otherwise, then no doubt the public would be
satisfied upon proof that no prejudice would be occasioned. Since, however, it
is not susceptible of proof, the test must be such that the public represented
by the reasonably informed person would be satisfied that no use of
confidential information would occur. That, in my opinion, is the overriding
policy that applies and must inform the court in answering the question: Is
there a disqualifying conflict of interest? In this regard, it must be stressed
that this conclusion is predicated on the fact that the client does not consent
to but is objecting to the retainer which gives rise to the alleged conflict.
45 Typically, these cases require two
questions to be answered: (1) Did the lawyer receive confidential information
attributable to a solicitor and client relationship relevant to the matter at
hand? (2) Is there a risk that it will be used to the prejudice of the client?
46 In answering the first
question, the court is confronted with a dilemma. In order to explore the
matter in depth may require the very confidential information for which
protection is sought to be revealed. This would have the effect of defeating
the whole purpose of the application. American courts have solved this dilemma
by means of the "substantial relationship" test. Once a
"substantial relationship" is shown, there is an irrebuttable
presumption that confidential information was imparted to the lawyer. In my
opinion, this test is too rigid. There may be cases in which it is established
beyond any reasonable doubt that no confidential information relevant to the
current matter was disclosed. One example is where the applicant client admits
on cross-examination that this is the case. This would not avail in the face of
an irrebuttable presumption. In my opinion, once it is shown by the client that
there existed a previous relationship which is sufficiently related to the
retainer from which it is sought to remove the solicitor, the court should
infer that confidential information was imparted unless the solicitor satisfies
the court that no information was imparted which could be relevant. This will
be a difficult burden to discharge. Not only must the court's degree of
satisfaction be such that it would withstand the scrutiny of the reasonably
informed member of the public that no such information passed, but the burden
must be discharged without revealing the specifics of the privileged
communication. Nonetheless, I am of the opinion that the door should not be
shut completely on a solicitor who wishes to discharge this heavy burden.
47 The
second question is whether the confidential information will be misused. A
lawyer who has relevant confidential information cannot act against his client
or former client. In such a case the disqualification is automatic. No
assurances or undertakings not to use the information will avail. The lawyer
cannot compartmentalize his or her mind so as to screen out what has been
gleaned from the client and what was acquired elsewhere. Furthermore, there
would be a danger that the lawyer would avoid use of information acquired
legitimately because it might be perceived to have come from the client. This
would prevent the lawyer from adequately representing the new client. Moreover,
the former client would feel at a disadvantage. Questions put in
cross-examination about personal matters, for example, would create the uneasy
feeling that they had their genesis in the previous relationship.
The Prothonotary stated the test correctly in his decision
at paragraph 17.
[19]
Existence
of a Previous Solicitor/Client Relationship Sufficiently Related to the
Retainer from which Removal of the Solicitor is Sought
The defendants alleged that the Prothonotary
erred in finding that a solicitor/client relationship existed between the
plaintiff and the defendants’ counsel (Everitt). The defendants listed indicia
of a solicitor/client relationship and submitted that no solicitor/client
relationship existed. The defendants admitted that there was a solicitor/client
relationship between Everitt and ABIL when the ‘975 Patent was prepared, but
the defendants deny there ever was or is now a solicitor/client relationship
between Everitt and the plaintiff. The Prothonotary correctly noted that neither
Ridout nor Everitt ever had any relationship with Robbins.
[20]
The
Prothonotary stated at paragraph 25 of his decision:
However, in deciding whether a previous relationship
exists, the word “client” can be taken to include “persons who were involved in
or associated with” the client in connection with the original matter: UCB
Sidac International Ltd. v. Lancaster Packaging Inc. (1993), 51
C.P.R. (3d) 449 at 452 (Ont Ct GD) (Sidac). This expansion of the definition of
client was adopted by Justice Barry Strayer in Almecon Industries Ltd. v.
Nutron Manufacturing Ltd. (1994), 55 C.P.R. (3d) 327, and subsequently
affirmed by the Federal Court of Appeal at (1994), 57 C.P.R. (3d) 69.
[21]
In UCB
Sidac International Ltd. v. Lancaster Packaging Inc. (1993), 51 C.P.R. (3d) 449 (Ont. Ct.
G.D.), the Court stated at page 452 :
.
. . The second is that the central question addressed in the judgment was not
the two “typical” questions noted, but the overriding question: “Is there a
disqualifying conflict of interest?” (see p. 267). In addressing this question,
one should look to see whether there is “a previous relationship” not only
between the lawyer and the client but also between the lawyer and the “person
involved in or associated with” the client in connection with the original
matter “which is sufficiently related to the retainer from which it is sought
to remove the solicitor” to justify the removal sought.
[22]
As a result of this
jurisprudence, it is necessary to look beyond the strict solicitor/client
relationship. In fact, Justice McDonald writing for the Federal Court of Appeal
in Almecon
Industries Ltd. v.
Nutron Manufacturing Ltd. (1994), 57 C.P.R. (3d) 69 stated at page 88:
. . . It is possible, in cases where a
previous relationship establishes a clear nexus with the solicitor’s retainer,
to conclude that the Martin test should be applied. . . .
[23]
Prothonotary
Lafrenière, in essence, found that since ABIL had assigned the invention and
the ‘975 Patent application to Robbins, then Robbins as assignee “could
reasonably expect that ABIL’s counsel would not act against its interests with
respect to the validity of the patent. . . .” In this case, Ridout, as counsel
for the defendants, alleged in its statement of defence that the ‘975 Patent
was invalid.
[24]
In my opinion, the
Prothonotary’s finding that there was a previous solicitor/client relationship
between Everitt and the plaintiff was not clearly wrong, in the sense that the exercise
of discretion by the Prothonotary was not based upon a wrong principle or upon
a misapprehension of the facts.
[25]
Was relevant
confidential information on a balance of probabilities, likely imparted to
Everitt by Ring on behalf of ABIL?
The
Prothonotary concluded that relevant confidential information was likely
imparted to Everitt by Ring when dealing with the ‘975 Patent. Although not
referenced directly by the Prothonotary, Justice Sopinka of the Supreme Court
of Canada stated the following in MacDonald Estate above, at paragraph
46 (already quoted but reproduced here for ease of reference):
.
. . In my opinion, once it is shown by the client that there existed a previous
relationship which is sufficiently related to the retainer from which it is sought
to remove the solicitor, the court should infer that confidential information
was imparted unless the solicitor satisfies the court that no information was
imparted which could be relevant. This will be a difficult burden to discharge.
Not only must the court’s degree of satisfaction be such that it would
withstand the swcrutiny of the reasonably informed member of the public that no
such information passed, but the burden must be discharged without revealing
the specifics of the privileged communication. Nonetheless, I am of the opinion
that the door should not be shut completely on a solicitor who wishes to
discharge this heavy burden.
[26]
In the present case,
I agree with the Prothonotary’s finding of the existence of a previous
solicitor/client relationship sufficiently related to the retainer from which removal
of the solicitor is sought. That being the case, it is to be inferred that
confidential information was imparted to Everitt unless Everitt has satisfied
this Court that no such information was imparted that could be relevant. The
evidence provided by the defendants was contained in the Wright affidavit but
Wright had no first-hand knowledge of the evidence. He was told by Everitt that
he did not reveal any confidential information while working on the ‘975 Patent
applications. This is hearsay evidence and as such, does not satisfy me that no
relevant information was imparted.
[27]
In addition, as noted
by the Prothonotary, there was some evidence from the plaintiff’s witness Ring
that he had shared confidential confidential information with Everitt, although
he could not remember the specifics.
[28]
Will the
confidential information be used to prejudice the former client?
In
relation to the second branch of the test, Justice Sopinka in MacDonald
Estate above, stated at paragraph 47:
The
second question is whether the confidential information will be misused. A
lawyer who has relevant confidential information cannot act against his client
or former client. In such a case the disqualification is automatic. No
assurances or undertakings not to use the information will avail. The lawyer
cannot compartmentalize his or her mind so as to screen out what has been
gleaned from the client and what was acquired elsewhere. Furthermore, there
would be a danger that the lawyer would avoid use of information acquired
legitimately because it might be perceived to have come from the client. This
would prevent the lawyer from adequately representing the new client. Moreover,
the former client would feel at a disadvantage. Questions put in
cross-examination about personal matters, for example, would create the uneasy
feeling that they had their genesis in the previous relationship.
[29]
Justice Sopinka at
paragraphs 49 and 50 in MacDonald Estates above, went on to discuss the
jurisprudence with respect to partners:
Moreover,
I am not convinced that a reasonable member of the public would necessarily
conclude that confidences are likely to be disclosed in every case despite
institutional efforts to prevent it. There is, however, a strong inference that
lawyers who work together share confidences. In answering this question, the
court should therefore draw the inference, unless satisfied on the basis of
clear and convincing evidence, that all reasonable measures have been taken to
ensure that no disclosure will occur by the “tainted” lawyer to the member or
members of the firm who are engaged against the former client. Such reasonable
measures would include institutional mechanisms such as Chinese Walls and cones
of silence. These concepts are not familiar to Canadian courts and indeed do
not seem to have been adopted by the governing bodies of the legal profession.
It can be expected that the Canadian Bar Association, which took the lead in
adopting a Code of Professional Conduct in 1974, will again take the lead to
determine whether institutional devices are effective and develop standards for
the use of institutional devices which will be uniform throughout Canada. Although I am not prepared to say that a court should
never accept these devices as sufficient evidence of effective screening until
the governing bodies have approved of them and adopted rules with respect to
their operation, I would not foresee a court doing so except in exceptional
circumstances. Thus, in the vast majority of cases, the courts are unlikely to
accept the effectiveness of these devices until the profession, through its
governing body, has studied the matter and determined whether there are
institutional guarantees that will satisfy the need to maintain confidence in
the integrity of the profession. In this regard, it must be borne in mind that
the legal profession is a self-governing profession. The Legislature has
entrusted to it and not to the court the responsibility of developing
standards. The court’s role is merely supervisory, and its jurisdiction extends
to this aspect of ethics only in connection with legal proceedings. The
governing bodies, however, are concerned with the application of conflict of
interest standards not only in respect of litigation but in other fields which
constitute the greater part of the practice of law. It would be wrong,
therefore, to shut out the governing body of a self-regulating profession from
the whole of the practice by the imposition of an inflexible and immutable standard
in the exercise of a supervisory jurisdiction over part of it.
A
fortiori undertakings and conclusory statements in affidavits without more are
not acceptable. These can be expected in every case of this kind that comes
before the court. It is no more than the lawyer saying “trust me”. This puts
the court in the invidious position of deciding which lawyers are to be trusted
and which are not. Furthermore, even if the courts found this acceptable, the
public is not likely to be satisfied without some additional guarantees that
confidential information will under no circumstances be used. In this regard I
am in agreement with the statement of Posner J. in Analytica, supra,
to which I have referred above, that affidavits of lawyers difficult to verify
objectively will fail to assure the public.
[30]
Based on the above
jurisprudence, I am of the opinion that since Everitt has been found to have received
confidential information; he is disqualified from acting. He simply cannot act.
The larger question is whether Ridout as a firm disqualified because it might
misuse the confidential information against the plaintiff. I am of the opinion
that there is not sufficient evidence that steps have been taken by Ridout to
ensure that confidential information in the hands of Everitt will not be
disclosed to Kvas or other members of Ridout. The only evidence before
Prothonotary Lafrenière was a statement of information and belief that physical
and computer files no longer exist at Kvas Miller Everitt or Ridout &
Maybee LLP. This evidence does not deal with the personal knowledge of Everitt
which he could impart to his partners.
[31]
I am of the view that
there is a risk that the confidential information will be used to the prejudice
of the client.
[32]
In my view, these two
standards strike a balance between the preservation of the confidentiality of
information imparted to a solicitor, the confidence of the public in the
integrity of the profession and the maintaining and strengthening of the
administration of justice. On the other hand, it also reflects the ability of a
client to pick the lawyer of his or her choice. It allows a solicitor to act
against a former client “provided that a reasonable member of the public who is
in possession of the facts would conclude that no unauthorized disclosure of
confidential information had occurred or would occur.” (see MacDonald Estate
above at paragraph 51).
[33]
In coming to the
conclusion that both Everitt and Ridout as a firm are disqualified from acting
for the defendant due to a conflict of interest, I would repeat part of
paragraph 38 of Prothonotary Lafrenière’s decision:
Part
of the Defendants’ defence in this proceeding is the impugnment of the validity
of the ‘975 Patent, for which the application was prepared and filed by the
very lawyer whose firm now seeks to invalidate it. A reasonably-informed person
could not, in such circumstances, be satisfied that there would be no improper
use of confidential information imparted as a result of a solicitor-client
relationship. . . .
[34]
The Prothonotary’s
decision on this point was not clearly wrong; his exercise of discretion was not
based upon a wrong principle or upon a misapprehension of the facts.
[35]
Delay and alleged
waiver
The
defendants alleged that the plaintiff’s delay in objecting to a conflict of
interest prevents the plaintiff from asserting this matter. I agree that
Prothonotary Lafrenière did not exercise his discretion based on a wrong
principle or upon a misapprehension of the facts when he found that the delay
in objecting to a conflict of interest did not correct the existence of the
conflict and that any prejudice suffered by the defendants could be remedied by
an award of costs. In Echerguard Products Ltd. v. Rocky’s of B.C.
Leisure Ltd. (1993) 54 C.P.R. (3d) 545 (C.A.),
the Federal Court stated at page 553:
The
respondent submits that the appeal should be dismissed because of the delay
which elapsed between the time Mr. Sinnott became employed by Bereskin &
Parr and the making of the formal objection in May of 1992. I cannot see how
the conflict of interest could be erased because of that delay alone. It may
well be that delay or other factors are to be considered in determining the
terms upon which a court will order the removal of a solicitor or solicitors
from the record, but that is an entirely different matter.
[36]
The defendants also
stated that Prothonotary Lafrenière erred in ruling that the plaintiff had not
waived its right to object to a conflict of interest. Prothonotary Lafrenière
stated in paragraphs 32 and 33 of his decision:
The
Defendants submit that at the commencement of the proceedings, Robbins
expressly consented to the representation of the Defendants by their counsel
and thereby waived any right that it may have had to challenge the
representation of the Defendants by Ridout. The Defendants also argue that
because Robbins has delayed in bringing this motion, they should be allowed to
continue with counsel of their choice.
The
fact that counsel for Robbins did not raise any objection when he was informed
that Kvas Miller was representing the Defendants does not establish that the
conflict of interest was waived. The matter was raised in an informal manner
between counsel for the parties in the context of a request for an extension of
time. It is unclear whether the implications of the information were fully
understood by Robbins’ counsel at the time. In the circumstances, I am not
satisfied that Robbins ever condoned, let alone waived, the conflict of
interest.
[37]
I am of the opinion
that the Prothonotary was not clearly wrong, in the sense that his exercise of
discretion was not based upon a wrong principle or upon a misapprehension of
the facts in reaching this conclusion.
[38]
In conclusion on the
whole of his discretion, I am of the opinion that Prothonotary Lafrenière was
not clearly wrong, in the sense noted in paragraph 38 above and as such, I see
no reason to interfere with the order rendered.
[39]
The defendants’
motion must therefore be dismissed with costs to the plaintiff.
ORDER
[40]
IT IS
ORDERED that the
defendants’ motion is dismissed with costs to the plaintiff.
“John
A. O’Keefe”
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