Robert Bell

The appellants' solicitors obtained an Anton Piller order and inadvertently seized documents protected by solicitor-client privilege.

The respondents moved to disqualify the appellants' solicitors.

The motion judge dismissed the motion, but the Divisional Court allowed the appeal and disqualified the solicitors.

On further appeal, the Court of Appeal established a new test for disqualification in cases of inadvertent disclosure: whether there is a real risk that opposing counsel will use the privileged information to the prejudice of the moving party, and whether that prejudice cannot realistically be overcome by a remedy short of disqualification.

The appeal was allowed and the matter remitted to the motion judge to apply the correct test.