M. Paul Michell

The court dismissed a motion for partial summary judgment brought by the defendants, Gowling WLG (Canada) LLP and its partners, in a professional negligence action arising from advice and services provided in connection with an employee stock trust and a 2012 financing transaction.

The court found that the case involved complex factual disputes, credibility issues, and conflicting expert evidence regarding the scope of the defendants’ retainer and standard of care.

The court held that summary judgment was inappropriate given the need for a full trial to resolve these issues, and also noted the risk of inconsistent findings due to parallel actions involving related parties and issues.

This is an appeal from a Superior Court order staying proceedings due to the appellants' unauthorized possession and review of the respondents' privileged documents.

The parties were involved in a failed joint venture to establish a Schedule 1 bank.

The appellants, particularly Scott Penfound, obtained and accessed voluminous privileged emails and legal strategy documents belonging to the respondents from a shared file server.

The motion judge found a rebuttable presumption of prejudice, which the appellants failed to rebut by not providing evidence of the scope of their review.

The Court of Appeal upheld the stay, finding no error in the motion judge's conclusion that significant, ongoing prejudice existed that could not be cured by a lesser remedy, especially given the client's direct access to the information and lack of transparency.