Case information

Civil procedure — Motion for removal of counsel — Analytical framework to be applied in Quebec and Canada to determine whether lawyer is qualified to act against party in case where lawyer has confidential information which concerns party and which, though not protected by professional secrecy, is highly sensitive and was obtained from that party in previous related case on express and strict condition that it be kept confidential and never reused in another context — In this regard, whether Quebec has distinct regime for disqualification of lawyers based on new art. 193 of Code of Civil Procedure, which explicitly expands possible grounds for disqualification — Circumstances, if any, in which lawyer should be declared disqualified because of breach or risk of breach of implied obligation of confidentiality (IOC), confidentiality orders made by court or undertakings of confidentiality made to court by party — In this regard, what type of “use” of confidential information can justify disqualification of lawyer, and whether it can be lawyer who asks that IOC be lifted on behalf of new client — Whether lawyers should be declared disqualified in new case involving essentially same facts in which confidential information that lawyers expressly undertook never to use will play central role, according to their own position — Art. 193, Code of Civil Procedure, CQLR, c. C-25.01.

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(PUBLICATION BAN IN CASE) (SEALING ORDER) (CERTAIN INFORMATION NOT AVAILABLE TO THE PUBLIC)

The applicants are former directors of Nemaska Lithium Inc. (referred to collectively as Nemaska). Nemaska began arrangement proceedings under the Canada Business Corporations Act, R.S.C. 1985, c. C-44. In those proceedings, the respondent law firm, Woods LLP (Woods), represents a group of shareholders of Nemaska (Shenker group) who are claiming damages from Nemaska for the loss of their investments. Woods previously represented Nordic Trustee AS in a case against Nemaska (Nordic case). In the Nordic case, Woods had access to certain information during the pre trial examination of Nemaska’s CEO, Guy Bourassa. A settlement was reached in the Nordic case and was approved by the Superior Court on February 13, 2020. The removal of all exhibits and pleadings from the record was also ordered. On January 27, 2021, Nemaska filed a motion for the disqualification of Woods in the present case. The parties agreed that the present case is related to the Nordic case through allegations of false or inaccurate representations against Nemaska. Woods also admitted that it has information relevant to the present case that was obtained in connection with the Nordic case and that is subject both to an IOC and to undertakings of confidentiality recorded by the court, including the management order of November 27, 2019 (see Arrangement de Nemaska Lithium inc. v. Nordic Trustee, 2019 QCCS 5048). Through its lawyers acting for the Shenker group, Woods filed affidavits stating that it did not use the information obtained in the Nordic case to prepare the originating pleading. The affidavits set out the other steps taken by Woods to comply with its legal and ethical obligations of confidentiality. The Superior Court dismissed the motion for disqualification filed by Nemaska, and the Court of Appeal dismissed the appeal.