Thank you for your question.
I don't think the judges were wrong. They interpreted the act as it was written and, in one of the significant cases, found that a patent agent who was also a lawyer and performed both functions did not enjoy solicitor-client privilege as a patent agent. The privilege applied to his law practice but not to his role as a patent agent. And, as a result, the confidential communications were disclosed in court. That was in one case.
In another case involving a patent agent in a foreign country, the U.K., it was the same situation. In the United Kingdom, patent agents enjoy solicitor-client privilege. The patent agent believed that he was covered by solicitor-client privilege, but the Canadian court determined that, although it was in another country, Canadian laws applied and therefore the evidence should be disclosed. These legal cases set precedents that put patent agents and Canadian companies at a competitive disadvantage as compared with other jurisdictions where solicitor-client privilege was available.
Given the increasing number of legal disputes internationally, Canada was becoming a weak link, so to speak, in terms of the disclosure of evidence and the holding of legal proceedings in other jurisdictions. It's important for Canada to be aligned with other countries by granting the privilege, as the U.K., New Zealand and Australia do. In the U.S., the privilege is granted if the country in question does the same. Canadian companies or clients aren't currently covered in the U.S.