Executive Summary: Key Legal and Evidentiary Issues

• Scope of an in-house lawyer’s duty of loyalty and confidentiality when moving from a sole corporate client (BPR) to a direct competitor (CMI), in the absence of a contractual non-competition clause.
• Presumption of use or risk of use of confidential and strategic information obtained at BPR, particularly regarding competition strategy and dealer network positioning, when the lawyer assumes a senior legal role with a competitor.
• Application of the Code de déontologie des avocats and the Charter right to professional secrecy to justify an order of inhabileté (disqualification) and a safeguard injunction against the lawyer’s full performance of his new functions.
• Weight accorded to sworn evidence that the lawyer participated in confidential strategic meetings and documents about BPR’s market positioning vis-à-vis CMI, versus his own denial of involvement in such strategic discussions.
• Balancing test for safeguard relief: clear and serious issue to be tried, irreparable harm linked to a potential breach of professional secrecy, and comparative prejudice between protecting BPR’s confidential information and limiting Me Charest’s new employment functions.
• Tailoring of the safeguard order so that Me Charest is barred from strategic and competitive functions (dealer agreements and competitive meetings) but may still handle governance and some litigation work for CMI pending the interlocutory and permanent injunction hearings.

Factual background and parties

Bombardier Produits Récréatifs inc. (BPR) employed Me Samuel Charest as in-house counsel until his resignation on 9 October 2025. Shortly thereafter, Me Charest joined Canada Moteurs Importations inc. (CMI) as Director of Legal Affairs, a position created to structure and manage CMI’s internal legal department. His new role included advising senior management, handling regulatory matters, participating in strategic decisions, and managing relations and disputes with CMI’s dealer network across Canada. CMI operates in the motorized sports market and maintains a national network of 147 dealers, of which 12 also carry BPR products side by side, effectively acting as dual dealers for both competitors. BPR viewed CMI as a direct competitor, particularly in relation to dealer relations and market positioning. Evidence presented by BPR showed that, during his tenure, Me Charest had only one client—BPR—and that he had been involved in sensitive competitive and strategic issues, including work on structures and strategies related to the development and management of BPR’s dealer network and positioning vis-à-vis competitors, specifically including CMI. When Me Charest moved to CMI in a senior internal legal role, BPR alleged that his new functions would inevitably place him in a situation of conflict of interest and expose it to the risk that he could use or be perceived as using confidential and privileged information obtained while acting as its in-house counsel.

Procedural history and initial provisional injunction

BPR commenced proceedings seeking a declaration of inhabileté (disqualification) and extensive injunctive relief against Me Charest, including provisional, safeguard, interlocutory and permanent injunctions. The central theory of BPR’s case was not based on civil non-competition law or any contractual non-compete clause—indeed, BPR expressly acknowledged that no such clause bound Me Charest. Instead, BPR relied squarely on the professional obligations imposed by the Code de déontologie des avocats and the protection of professional secrecy under the Charter of Human Rights and Freedoms. On 27 October 2025, the Superior Court (Castonguay J.) issued a provisional injunction limiting the scope of Me Charest’s activities for CMI. That provisional order temporarily restricted his ability to carry out certain functions within CMI’s organization while the matter moved forward to a hearing on a safeguard order.

Positions of the parties regarding the safeguard order

At the expiry of the provisional injunction on 5 November 2025, BPR sought a safeguard order essentially mirroring the provisional relief, which would broadly prevent Me Charest from engaging in specified functions at CMI pending a full hearing on the interlocutory and permanent injunctions. Me Charest and CMI did not contest the notion that some safeguard order could issue, but they argued vigorously that the initial formulation was excessively broad and unreasonable. They contended that, given there were 147 CMI dealers across Canada and only 12 were also dealers for BPR, an order effectively disabling Me Charest from dealing with all CMI dealers and related matters was disproportionate and unduly restrictive. They requested a narrower order that would limit his activities only with respect to the small subset of dealers that also represented BPR, and that would allow him to perform the rest of his contractual duties. BPR, by contrast, maintained that the heart of the issue was deontological: an in-house lawyer who has participated in developing competitive strategies for BPR could not reasonably separate or “compartmentalize” that knowledge in order to serve a direct competitor. On that basis, BPR argued that any continued performance of dealer-related functions or participation in competitive strategic discussions at CMI would leave BPR exposed to a serious, irreparable risk concerning its confidential information and professional secrecy, even if there was no formal non-competition clause or civil law obligation of non-competition in play.

Professional and ethical framework

The Court grounded its analysis in the Code de déontologie des avocats and the Charter. The Code provisions highlighted BPR’s position that an advocate owes duties of integrity, loyalty, confidentiality and avoidance of conflicts of interest to the client, and must not accept a mandate that may reasonably involve the communication or use of confidential information relating to another client or former client. In particular, the Court cited the provisions requiring lawyers to assure the confidentiality of information about a client’s affairs, refrain from using confidential information for their own or a third party’s benefit, and avoid conflicts of interest including where duties to a former client may interfere with duties to a new client. The Court also referred to section 9 of the Québec Charter of Human Rights and Freedoms, which protects professional secrecy and imposes on courts a duty to ensure that secrecy is respected, even in judicial proceedings. Building on these legislative and regulatory norms, the Court invoked seminal Supreme Court of Canada decisions, notably Succession MacDonald v. Martin and R. v. Neil. From Succession MacDonald, the Court emphasized that once a prior client establishes a sufficiently connected prior relationship with the lawyer and a new retainer involving adverse interests, a presumption arises that confidential information was communicated. The burden then shifts heavily to the lawyer to show that no relevant confidential information was transmitted, a burden that is extremely difficult to discharge because privileged details cannot be disclosed in open court. The Court echoed the Supreme Court’s recognition that a lawyer cannot realistically partition their mind to avoid using information gained in confidence and that bare assurances in affidavits are inadequate to allay public concerns about the integrity of the justice system. From R. v. Neil, the Court drew on the broader duty of loyalty beyond confidentiality, including the obligation to avoid conflicts of interest and to ensure that no divided loyalty dampens the zeal of representation or undermines the client’s trust.

Evidence concerning confidential strategic involvement

On the evidentiary front, BPR filed a series of sworn declarations from senior managers and legal officers, along with confidential documents under seal, demonstrating that Me Charest had been involved in sensitive strategic and competitive discussions while at BPR. Witnesses detailed that his functions extended beyond routine legal work to strategic support on commercial matters, including competitive positioning against all rivals and specifically against CMI. Declarations suggested he consulted and supported BPR on structuring and managing its distribution and dealer networks, developing strategies regarding competitors, and participating in strategic development meetings in September 2025 where CMI’s positioning and competitive threats were specifically discussed. BPR also filed documents (PP-1 to PP-8) under seal, accessible only to Me Charest and his counsel, which reinforced the picture that he had participated in confidential strategic planning as an in-house lawyer. Although Me Charest, in his own sworn statement filed under seal, denied having taken part in strategic discussions targeting CMI, the Court found the series of corroborating declarations and documents more persuasive. It concluded that he had indeed been involved in high-level competitive discussions affecting BPR’s positioning in relation to CMI and other competitors, at least to some extent.

Evidence and assurances from CMI

From the defence side, CMI’s president, Hélène Binet, filed declarations explaining CMI’s recruitment of an in-house lawyer through a headhunter, noting that a candidate with motorized sports industry experience was particularly attractive. She described the broad scope of the Director of Legal Affairs role: internal governance, legal and regulatory matters, dealer relations and disputes, contracts with partners (including foreign partners), and strategic advice to management. She also provided evidence that CMI had 147 dealers, only 12 of which also represented BPR, and emphasized that the existing provisional injunction had already forced CMI to retain outside counsel for relatively modest matters (e.g., a small claims file and a dispute involving a New Brunswick dealer). CMI signalled that the provisional order was so restrictive that it severely limited their ability to use Me Charest’s services. In addition, CMI contended that it did not truly compete in the same product range as BPR, attempting to minimize the competitive overlap—an assertion BPR contested through its own sealed declarations. Importantly, CMI and Me Charest both filed assurances that CMI had no interest in obtaining BPR’s privileged information and that they were committed to avoiding any breach of loyalty, confidentiality, or professional secrecy. They also raised fairness concerns, noting that some BPR executives were subject to contractual non-competition clauses of limited duration (two years), whereas BPR was seeking to restrict Me Charest’s professional activities without any contractual non-compete, relying solely on deontological rules.

Application of the safeguard criteria

The Court analyzed the request for a safeguard order using the classic tripartite test: (1) serious question to be tried and apparent right; (2) irreparable harm; and (3) balance of convenience (balance of inconveniences). On the first criterion, the Court held that BPR had clearly established a serious question and an apparent right. The central legal issue—how far an in-house lawyer’s professional secrecy and loyalty obligations extend when moving from a single corporate client to a direct competitor in a competitive marketplace—was plainly substantial and non-frivolous. The evidence that Me Charest’s new role at CMI overlapped significantly with his former strategic and dealer-related responsibilities at BPR, combined with proof of his involvement in confidential competitive strategy discussions, supported a strong prima facie case that his continued performance of certain functions at CMI could jeopardize BPR’s privileged information and the integrity of its professional secrecy. On irreparable harm, the Court reasoned that any unauthorized or even merely perceived use of confidential and strategic information obtained through the lawyer–client relationship would cause irreparable damage to BPR. Once professional secrecy is breached, even unintentionally, the harm cannot be undone or adequately compensated with damages. The Court took the view, consistent with Supreme Court jurisprudence, that generalized assurances by the lawyer and new employer are insufficient to dispel the structural risk associated with transferring from one side of a competitive relationship to the other where confidential strategic knowledge is involved. Finally, regarding the balance of conveniences, the Court acknowledged that the restrictions could seriously jeopardize Me Charest’s new employment—CMI might decide to terminate his employment if he could not perform essential parts of his mandate—and that the defendants were aware the hire was inherently risky from the outset. Nonetheless, the Court concluded that the need to safeguard BPR’s professional secrecy and protect public confidence in the legal system outweighed the inconvenience to CMI and Me Charest, particularly because the safeguard order would be time-limited and the matter was being fast-tracked to a full hearing on interlocutory and permanent relief.

Content and tailoring of the safeguard order

In the end, the Court granted BPR’s request for a safeguard order but revised its scope. Rather than adopting the original, broader wording, the Court narrowed and specified the prohibited activities to focus on those most closely connected with BPR’s confidential strategic information. The order, effective until 30 January 2026 (or until a preferential hearing is scheduled and held on the interlocutory and permanent injunction applications), requires that Me Charest and CMI ensure he abstains from: participating in the negotiation, drafting and updating of “Dealer Agreements” with CMI’s dealers, as contemplated in his employment contract; and taking part in any meetings with CMI’s management, or any one-on-one meetings with anyone at CMI, where CMI’s competitive relationships with any other market participants (including BPR) are discussed. At the same time, the Court expressly recognized that Me Charest could still be involved in governance matters and in following up on litigation files that did not raise sensitive competitive strategy concerns, meaning his role was not entirely prohibited. The order was thus tailored to prevent him from performing functions where his prior knowledge of BPR’s competitor strategies and dealer-network positioning would be most at risk of being used, consciously or subconsciously, to benefit CMI. The Court also formally took note of CMI’s undertaking, through its president, not to ask Me Charest to breach his duty of loyalty, confidentiality or professional secrecy as outlined in her affidavit. As is typical in interim procedural orders, the Court reserved the issue of legal costs, ordering that costs would “follow the event,” to be determined with the final outcome of the litigation on the merits.

Outcome, successful party and monetary relief

The immediate outcome of this decision is that BPR’s application for a safeguard order is allowed, making BPR the successful party at this stage of the proceedings. The Court confirmed that BPR had an apparent right to protective relief based on professional secrecy and conflicts of interest and imposed a time-limited, targeted restriction on Me Charest’s ability to negotiate dealer agreements and participate in competitive strategic discussions at CMI, while allowing him to continue in some governance and litigation roles. No damages or specific monetary amounts were awarded in this judgment; costs were expressly left to “follow the result of the litigation,” meaning they will only be quantified, if at all, upon a final determination of the case. Accordingly, the successful party in this decision is Bombardier Produits Récréatifs inc., but the total monetary amount ordered in its favour at this safeguard stage is none, as no damages, quantified costs, or other monetary awards were determined.