December 3, 2021
In Farmobile, LLC v. Farmers Edge Inc. 2021 FC 1200, the Federal Court (“FC”) dismissed a motion to strike a Notice of Change and Appointment of Solicitor that sought to appoint two Solicitors of Record. The case confirms that two solicitors of record may be appointed in special circumstances, with leave of the Court.
Farmobile, LLC (“Farmobile”), the plaintiff in a patent infringement action, had been represented by the law firm Gowling WLG (Canada) LLP (“Gowling WLG”) for a number of years. Shortly before the scheduled trial date, two of the four primary solicitors representing Farmobile left Gowling WLG to set up a new law firm, Seastone IP LLP (“Seastone”).
Farmobile subsequently served and filed a Notice of Change of Solicitor, which sought to add Seastone as a second solicitor of record in addition to Gowling WLG. The defendants, Farmers Edge Inc. (“Farmers Edge”) brought a motion to strike the Notice of Change of Solicitor.
Application of the Federal Courts Rules Relating to Solicitors of Record
Farmers Edge took the position that the Federal Court Rules (the “Rules”) do not allow parties to appoint more than one solicitor of record absent special circumstances, while Farmobile argued that the Rules allow a party to have multiple solicitors of record, as of right. The FC ultimately held that it was possible to appoint co-solicitors with leave of the Court.
The FC found that the appointment of two solicitors was an irregularity which could be cured by Rule 55, which permits the Court to vary or dispense with compliance with a rule in “special circumstances.” Thus, the onus was on Farmobile to establish that “special circumstances” existed which justified the appointment of co-solicitors.
The FC found that Farmobile had met this burden, noting that the disruption caused by the departure of Farmobile’s counsel had the potential to further delay the action, which had already been adjourned five times and was scheduled for trial in only twenty days. Additionally, an existing Protective Agreement was preventing lawyers at Seastone from accessing confidential “Counsels’ Eyes Only” documents, an issue the FC found could be quickly resolved by appointing Seastone as co-counsel.
The FC also rejected the argument that Farmers Edge would be prejudiced by permitting Farmobile to have two solicitors of record. Given that an electronic service agreement was already in place, the FC found that the change would require Farmers Edge to do little more than add a second email address to their correspondence. Further, there was no evidence of inconsistent positions between co-counsel, duplication of efforts, or any other suggestion of a lack of ability to cooperate.
Authors: Brittni Tee and Sam Galway
The entire Goodmans IP Team would like to thank Sam Galway for her many contributions over the years and to wish her well for the future.