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Representation - Lawyers - Counsel as Witness

. Lepan v. Lofranco

In Lepan v. Lofranco (Div Ct, 2021) the Divisional Court considered the issue of counsel appearing as a witness:
[26] The maintenance of high standards of the legal system and the integrity of our system of justice requires that counsel not appear as advocate in cases in which they will be witnesses or be in a conflict of interest with their clients.

Disqualification as Witness

[27] In Essa (Township) v. Guergis (1993), 1993 CanLII 8756 (ON SCDC), 15 O.R. (3d) 573 (Div. Ct.), this Court outlined a non-exhaustive set of factors that a Court may utilize in considering whether counsel should be disqualified for being a witness. Those factors have been consistently applied in Ontario and include the following:
(a) the stage of the proceedings;

(b) the likelihood that the witness will be called;

(c) the good faith (or otherwise) of the party making the application;

(d) the significance of the evidence to be led;

(e) the impact of removing counsel on the parties' right to be represented by counsel of choice;

(f) whether the trial is by judge or jury;

(g) the likelihood of a real conflict arising or that the evidence will be tainted; and

(h) who will call the witness if, for example, there is a probability that counsel

will be in a position to cross-examine a favourable witness, a trial judge may

rule to prevent that unfair advantage arising;

(i) the connection or relationship between counsel, the prospective witness and

the parties involved in the litigation.
[28] However, O’Brien J. noted, at page 582 of Essa, that the “courts should be reluctant to make what may be premature orders preventing solicitors from continuing to act” and that, at page 583, “all applications to remove solicitors from the record are not brought with the purest of motives.”

[29] In Kota v. Raphael, [2003] O.J. No. 3003, the plaintiff sued former counsel for negligence in the handling of an accident benefit claim. The subsequent counsel who sued the first lawyer had ultimately settled the same accident benefit claim. As second counsel was a necessary witness as to why the first lawyer’s negligence led to a compromise of the accident benefit claim, the second lawyer could not continue as counsel.

[30] Similarly, 1298781 Ontario Inc. et al. v. Levione et al., 2013 ONSC 2894, involved a subsequent lawyer who had completed a matter in which it was alleged the former lawyer was negligent. The subsequent lawyer was a likely witness and removed as counsel of record for the plaintiffs.

[31] Other cases, such as Kitchen v. McMaster, 2018 ONSC 3717 and Battarbee Estate v. Mantha (10 August 2004), Toronto, 03-CV-244964 (S.C.) (unreported judgment of Master Kelly), support the proposition that where there is a significant likelihood that counsel has relevant evidence to give, then counsel should be removed.

[32] As cited in Kitchen, the decision of Master Glustein (as he then was) in Mazinani v. Bindoo, 2013 ONSC 4744, based on a thorough review of the authorities, cautions that the decision to deprive a litigant of counsel of choice should not be made prematurely and that consideration should be given to these factors, among others:
(x) Courts should be reluctant to make what may be premature orders preventing lawyers from continuing to act. If the evidence does not necessarily have to come from the lawyer and may be obtained through admissions or documentary productions, a removal order will be premature;

(xi) If there is some doubt or “merely a potential” that a lawyer will be called as a witness at trial, the courts should be more generous in allowing the lawyer to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge;

(xii) “In view of the expense of litigation and the enormous waste of time and money and the substantial delay which can result from an order removing solicitors, courts should only do so in clear cases”;

(xiii) “[A] court should be slow to interfere with the litigant’s right to choose his or her counsel. … When a litigant is deprived of the services of a lawyer whom she has chosen, there will be some hardship imposed on her. The imposition of such hardship can only be justified if it is done to prevent the imposition of a more serious injustice. It follows that the removal of counsel should be only to relieve the risk of real mischief and not a mere perception of mischief”;

(xiv) Certainty that a lawyer will be called as a witness is not required. Rather, the court must consider the likelihood of the lawyer being called as a witness;

(xv)“It is not sufficient for a moving party to suggest opposing counsel is a potential witness or allege only that he or she might provide material evidence. Rather, it must be established that there is a real basis to believe counsel can likely, or probably, provide material evidence”;

(xvi) “While courts have acknowledged that the freedom to choose counsel is an important interest to protect, it is not an absolute right. The right to be represented by counsel of choice can be outweighed when the administration of justice would be detrimentally affected”; and

(xvii) The court should approach a motion to remove a lawyer of record who may be a witness at trial by following a flexible approach and consider each case on its own merits . [Emphasis added; citations omitted.]



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