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Representation - Lawyers - Removal from Record. Van Every (Litigation guardian of) v. Findlay
In Van Every (Litigation guardian of) v. Findlay (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal, this from an order denying the defendant original law firm's motion to remove the current law firm as counsel:[4] The Appellants brought a motion to have the Respondent’s law firm removed as counsel of record. That motion was dismissed, and the Appellants have appealed with leave to this Court. For the reasons that follow, I have regrettably come to the conclusion that the motions judge’s decision must be set aside as he was misdirected as to the law and that he gave no weight to some of the relevant factors favouring the Appellant’s position and insufficient weight to other of the relevant factors favouring the Appellant’s position. I would therefore remove the Preszler Law Firm as counsel of record for the Respondent.
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The Scope of the Conflict
[27] At para. 17 of his reasons, the motions judge stated:[17] David E. Preszler has complied with his professional obligations as noted above. By implication, there is agreement of the plaintiff through his litigation guardian to continue with representation by the [Preszler Law Firm]. In those circumstances, I find it unnecessary to order the removal of the law firm as counsel at this point in the proceedings. If and when the situation changes to make the conflict more acutely a genuine, serious risk to counsel’s duty of loyalty in which representation of the plaintiff would be materially and adversely affected by the law firm’s own interest, the defendants may renew their motion. [28] In my view, this is an error of law for two reasons. First, there is a potentially significant and irreconcilable conflict between the Preszler Law Firm and the position that the Respondent wishes to take in this litigation. Second, the motions judge did not address the issue of the effect on the administration of justice as a whole and it is not apparent from the record that the motions judge took this consideration into account or gave it sufficient weight.
[29] I start with the conflicts issue. Lawyers should not act as witnesses and advocates in the same case where issues of the lawyer’s credibility are engaged: Mazinani v. Bindoo, 2013 ONSC 4744, at para. 60. Similarly, in cases where a lawyer assumes carriage of a matter from another lawyer, completes the matter and then starts a negligence action against the first lawyer, the Courts routinely disqualify the lawyer that took over the file from acting against the original lawyer: 8657181 Canada Inc. v. Mehdi Au LLP, 2021 ONSC 1295, 155 O.R. (3d) 785, at para. 16; Kota v. Raphael, 2003 CarswellOnt 2863 (Gen. Div.).
[30] At para. 8, I have set out the factual conflicts between Jeffrey Preszler’s evidence and the Plaintiff’s claim in this case. Given those conflicts, Jeffrey Preszler could not be counsel in this matter. However, counsel for the Respondent argues that the motions judge addressed this conflict by noting that there had been a change in counsel from Jeffrey Preszler to David E. Preszler. Both lawyers are members of the same law firm. As a result, counsel argues that any issue in respect of Jeffrey E. Preszler being called as a witness was resolved. I disagree. There are cases in which the Court has been concerned about whether a lawyer in the same firm can act where one of their colleagues is going to be a witness.
[31] For example, in Oliver, Derksen, Arkin v. Fulmyk (1995), 1995 CanLII 11052 (MB CA), 126 D.L.R. (4th) 123 (Man. C.A.), the Manitoba Court of Appeal stated:[13] An advocate's credibility may be impeached not only where the advocate doubles as a witness, but also where the advocate has a common interest with a witness in the accuracy of that witness's evidence. This may occur where the witness is a partner or associate of the law firm to which the advocate belongs and the other lawyer's evidence concerns a matter arising from the law firm's practice. The advocate then has an interest in the court accepting the lawyer's evidence as its rejection reflects on all members of the firm.
[14] Similarly, the questioned conduct or judgment which bars a lawyer from acting as an advocate may be not the lawyer's own conduct or judgment, but that of another member of the advocate's law firm. But, here again, the advocate is only barred where the questioned conduct or judgment of the other lawyer occurred in that lawyer's capacity as a member of the firm. [32] These same principles were adopted in Beacon Hill Service (2000) Ltd. v. Esso Petroleum Canada, 2011 ABQB 138, 512 A.R. 212, at para. 15, aff’d 2012 ABCA 269, 536 A.R. 221. In this case, Mr. Jeffrey Preszler’s credibility will be “on the line”. In presenting the case, Mr. David E. Preszler will have to advance the Respondent’s interests in the face of evidence from another member of his firm that may very well not be helpful to the Plaintiff’s position. That problem alone justifies the removal of the Preszler law firm at this point.
[33] The second error is that the motions judge confined himself to the question of whether the conflicts issue was sufficiently addressed by David E. Preszler’s identification of the potential conflict and the communication of that conflict to the litigation guardian. Counsel for the Appellants argued that the evidence was not sufficient to demonstrate a waiver of the conflict. For the purposes of this analysis, I assume (without deciding) that there was a waiver of the conflict by the litigation guardian.
[34] In my view, the motions judge erred by not considering the effect of the Preszler Law Firm continuing to act on the administration of justice as a whole. As the Supreme Court noted in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, the Courts are required to balance the integrity of the justice system and the right of a litigant to their choice of counsel. Even if the Respondent’s litigation guardian waived this conflict, the Court still has a superintending jurisdiction. Given the conflict that exists and the centrality of Mr. Jeffrey Preszler’s evidence to this case, that omission was also an error of law.
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[43] The reasoning that the motions judge relied on from Guergis has been considered in George S. Szeto Investments Ltd. (c.o.b. Ruby King) v. Ott, 2006 CanLII 9307 (Ont. S.C.). In that decision, Master Beaudoin (as he then was) stated:[11] This matter has not progressed beyond the pleadings stage. Plaintiffs’ counsel nevertheless maintains that these proceedings commenced as early as January 1999 when the CCRA first initiated an audit of the Plaintiffs. There are those cases that suggest that a motion to remove a solicitor should be made at an early stage of the proceedings so as to allow the Plaintiff to retain new counsel without difficulty and to minimize the financial impact on the Plaintiff. (Khataan v. Kozman (c.o.b. College Medical Group), [1997] O.J. No 3104 at para. 8 (Ont. Ct. Gen. Div.); Ottawa Triple “A” Management Ltd. v. Ottawa (City), [1998] O.J. No. 891 at para. 8 (Ont. Ct. Gen. Div.), Breslin v. Breslin [2003] O.J. No. 5207 (S.C.J.)).
[12] Another line of cases suggest that the application to remove should be deferred to the trial judge who is in the best position to determine if a firm should be disqualified. (Essa (Township) v. Guergis; Membery v. Hill (supra); Zesta Engineering v. Cloutier, [2000] O.J. No. 2893, para. 11 (S.C.J.); International Business Machines Corp. v. Printech Ribbons Inc. (T.D.), 1993 CanLII 3013 (FC), [1994] 1 F.C. 692, paras. 38-40 (Trial Division)).
[13] In my view, the apparent conflict between these lines of cases is easily resolved by examining when the court can conclude that there is more than real likelihood that the solicitor will be called as witness. If there is some doubt, “merely a potential”, the courts have been more generous in allowing counsel to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge. Where the court is satisfied on the record before it that the counsel will be called as a witness, the decisions favour an early determination of the issue. [44] In my view, the law is clear that the determination to remove counsel is made when there is more than a real likelihood that the lawyer will be called as a witness, regardless of what stage in the litigation process the parties are at. For the reasons set out above, I am of the view that there is more than a real likelihood that Mr. Jeffrey Preszler will be called as a witness in this matter. SS Note: The 'Guergis' factors are not listed in this case, I repeat them here from the original Divisional Court 1993 case:Courts should also carefully consider the right of a client to be represented by counsel of choice.
I accept submissions made by counsel for the Advocates Society that in these applications a court should approach the matter by following a flexible approach and consider each case on its own merits. A variety of factors should be considered. These will include:
-- the stage of the proceedings;
-- the likelihood that the witness will be called;
-- the good faith (or otherwise) of the party making the application;
-- the significance of the evidence to be led;
-- the impact of removing counsel on the party's right to be represented by counsel of choice;
-- whether trial is by judge or jury;
-- the likelihood of a real conflict arising or that the evidence will be "tainted";
-- who will call the witness if, for example, there is a probability counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising;
-- the connection or relationship between counsel, the prospective witness and the parties involved in the litigation. . Van Every (Litigation guardian of) v. Findlay [SOR]
In Van Every (Litigation guardian of) v. Findlay (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal, this from an order denying the defendant original law firm's motion to remove the current law firm as counsel.
The court considers the SOR for a 'removal from record' issue:[24] The parties were in agreement on the standard of review. The standard of review is described by the Court of Appeal in Ontario v. Chartis Insurance Co. of Canada, 2017 ONCA 59, 62 C.C.L.I. (5th) 173. At para. 57, the Court stated:[57] The Divisional Court properly identified a disqualification motion as being discretionary in nature. Such a decision is reversible where the court has misdirected itself, has come to a decision that is so clearly wrong that it amounts to an injustice, or where the court gives no or insufficient weight to relevant considerations…. [Citation omitted.] [25] This Court can only overturn the motions judge’s decision if there is a reviewable error. In my view, there are three related areas where there were errors that justify this Court’s intervention:a) The motions judge was misdirected on the issue of whether there was a conflict in this case, and the significance of that conflict.
b) The motions judge did not sufficiently consider the fact that the Respondent is a party under disability.
c) When considering the factors under Guergis, the motions judge gave unwarranted weight to the prematurity argument. [26] In coming to these conclusions, I recognize that the test for removing counsel of record is very high, and that removal motions should only be granted in the rarest of cases: Best v. Cox, 2013 ONCA 695 (Feldman J.A. in Chambers), at para. 8. With that principle in mind, I turn to my analysis of each of these points. . Crowley v. Crowley
In Crowley v. Crowley (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from an estates application order "dismissing [the applicant's] application challenging the validity of his deceased mother’s will".
Here the court considers the dismissal of the underlying application for failure to comply with a representation order:[4] .... Rather, the motion judge dismissed Mr. Crowley’s application pursuant to rr. 15.04(8) and (9) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provide as follows:(8) A client who is not a corporation shall, within 30 days after being served with the order removing the lawyer from the record,
(a) appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or
(b) serve a notice of intention to act in person under subrule 15.03 (3).
(9) If the client fails to comply with subrule (8),
(a) the court may dismiss the client’s proceeding or strike out his or her defence … [Emphasis added.] [5] In this case, quoting rr. 15.04(8) and (9), Justice McCarthy’s order removing Mr. Crowley’s former solicitor explicitly directed him to serve a notice of change of solicitor or a notice of intention to act in person within 30 days. The order also explicitly warned Mr. Crowley that if he did not comply with the order the court could dismiss his application.
[6] As the motion judge explained in her endorsement dismissing the application, Mr. Crowley’s failure to serve a notice of change of solicitor or a notice of intention to act in person within the specified time was consistent with an ongoing pattern of delay and non-compliance with previous court orders:The deceased, Audrey Crowley, passed in 2020. Since its inception in 2021, this matter has followed a long and tortured road. The parties have been before the Court on numerous occasions.
The beneficiaries have patiently waited on the sidelines, hoping to see an end to the litigation. That end finally came today.
Mr. Crowley has been afforded many opportunities by the Court. He is unable to retain counsel, he has not complied with timetables, and he has not followed the Rules of Civil Procedure.
By way of Order dated October 10, 2023, Justice McCarthy gave Mr. Crowley one final opportunity to set this matter back on track. [Emphasis added.] [7] The motion judge also found that Mr. Crowley was aware of Justice McCarthy’s order at the time it was made. She further stated that Mr. Crowley acknowledged that he had not yet complied with the order. On appeal, Mr. Crowley contests this finding, and points to a notice of intention to act in person in his materials dated April 18, 2024, which is over six months after Justice McCarthy’s order. He says that he prepared this notice and sent it to the parties as soon as he became aware of Justice McCarthy’s order. However, there is no evidence to support this contention and it runs counter to the motion judge’s findings of fact, to which we owe deference.
[8] As this court noted in Cunningham v. Hutchings, 2018 ONCA 365, at para. 5, dismissal of a proceeding is the “most draconian remedy available” for non-compliance with r. 15.04(8). However, in this case, the motion judge did not err in exercising her discretion to dismiss Mr. Crowley’s application. Justice McCarthy’s order complied with the requirement in r. 15.04(4)(e) that the order include the text of rr. 15.04(8) and (9). Mr. Crowley had fair warning that non-compliance could lead to a dismissal of his application. He has engaged in a pattern of delay and non-compliance. Finally, this ongoing delay is prejudicial to the respondents, who have been waiting for a long time to finalize the distribution of the estate. Accordingly, we see no error in the motion judge’s decision dismissing Mr. Crowley’s application. . Altman v. Altman
In Altman v. Altman (Div Court, 2024) the Divisional Court orders the removal of the appellant's solicitor of record, opposed only by the respondent:[1] The Appellant’s lawyer, Mr. Joseph, brought a motion returnable today, removing McDonald & Partners LLP as solicitors of record for the Appellant in the Divisional Court proceedings. The Appellant, Mr. Altman does not oppose the motion. The Respondent, Ms. Altman, does oppose the motion.
[2] For the reasons set out below, effective March 29, 2024, McDonald & Partners are removed as solicitor of record for the Appellant, without prejudice to the motion scheduled before the Superior Court of Justice on March 28, 2024.
[3] In R. v. Cunningham, 2010 SCC 10 (CanLII), the Supreme Court of Canada outlined a set of principles on which a lawyer may be permitted to withdraw from acting for a client in criminal matter. The Court also commented that reffusing to allow counsel to withdraw should be a remedy of last resort (for obvious reasons). The principles were confirmed as applicable to civil and family law matters by Faieta J., in Froom v. Lafontaine, 2020 ONSC 5650 (CanLII) at paras 20-21).
[4] An affidavit was filed in support of the motion, setting out the breakdown in the relationship between Mr. Joseph and his client. In considering the factors set out in by the SCC and with one caveat below, I am satisfied that there has been a breakdown in the relationship and McDonald & Partners LLP should be permitted to withdraw as counsel for the Appellant.
[5] What troubles me about this motion is the issue of timing, not in this court, but in the overall proceedings between the parties. As per my direction earlier today, there is already a schedule in place for the proceedings in Divisional Court, which schedule is peremptory on the Appellant, so there is no prejudice to the Respondent by Mr. Joseph being removed as solicitor of record. However, there is a long motion scheduled to be heard in the SCJ on March 28, 2024. The Respondent is seeking to strike the Appellant’s pleadings for failure to provide financial disclosure and for being in breach of court orders.
[6] Mr. Joseph consented to the date for the motion in the SCJ. The date was adjourned specifically to meet Mr. Joseph’s schedule. The breakdown in the relationship was not sudden or recent but has been ongoing. This case can be distinguished from some of the cases referred to in the Appellant’s factum because Mr. Joseph is not withdrawing for ethical reasons, but because there has been a breakdown in the relationship.
[7] There are different factors to consider in the motion to remove McDonald & Partners LLP as solicitor of record in the SCJ and in the corresponding request to adjourn Ms. Altman’s motion to strike Mr. Altman’s pleading. The SCJ to not bound by the decision of this court and this decision is being made without prejudice to Ms. Altman with respect to the motion to remove McDonald & Partners LLP as solicitors of record in the SCJ and Ms. Alman’s pending motion to strike.
[8] As such, the removal of McDonald & Partner’s LLP as solicitor of record is only effective as of March 29, 2024, and only as it relates to the proceeding in the Divisional Court. . Brown v. Williams
In Brown v. Williams (Ont CA, 2023) the Court of Appeal considers a motion by solicitors for removal from record:[2] The removal of a solicitor of record under r. 15.04 of the Rules of Civil Procedure is within the court’s discretion. Although a client may terminate the relationship at will, Rule 3.7-1 of the Law Society of Ontario’s Rules of Professional Conduct provides that “[a] lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client”. Rule 3.7-2 allows that “…where there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.” The commentary gives examples of a serious loss of confidence justifying the solicitor’s withdrawal, including when “the client refuses to accept and act upon the lawyer’s advice on a significant point”. As the Supreme Court instructed in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, at para. 16, the rules of professional conduct of the profession’s governing body “should be taken as expressing the collective views of the profession as to the appropriate standards to which the profession should adhere” and “an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy.”
[3] Considerations informing the exercise of the court’s discretion to remove a solicitor of record include the impact of the removal on the client’s interests, on the other parties, and on the administration of justice, and whether the solicitor and client relationship has broken down because of, for example, a loss of confidence in the solicitor’s abilities or the client’s failure to communicate or follow instructions and to make a reasonable payment on the solicitor’s reasonable accounts: R. v. Cunningham, 2010 SCC 10 (CanLII), [2010] 1 S.C.R. 331, at para. 50; KingSett Mortgage Corporation v. 30 Roe Investments Corp., 2023 ONCA 196, at paras. 13 and 18; 1621730 Ontario Inc. v. Queen (Ontario), 2012 ONSC 604; Kovinich v. Kovinich (2008), 58 C.P.C. (6th) 78 (Ont. S.C.), at paras. 40-42; Nicolardi v. Daley (2003), 34 C.P.C. (5th) 394 (Ont. S.C.), at paras. 8-10 and 15-16; Johnson v. Toronto, 1963 CanLII 128 (ON SC), [1963] 1 O.R. 627 (H.C.J.). While the impact of the removal on the client’s interests and the client’s views are important, the question is not simply whether the client wishes the solicitor to continue but whether all the circumstances, including, for example, the client’s loss of confidence, justify the solicitor’s withdrawal: Kovinich, at para. 41; Nicolardi, at para. 15. . 25162116 Ontario Ltd. (Numbrs) v. Abledocs Inc.
In 25162116 Ontario Ltd. (Numbrs) v. Abledocs Inc. (Ont CA, 2023) the Court of Appeal considered a solicitor's motion for removal from the record [under R15.04]:[4] Miller Thomson’s main argument is that there has been a breakdown in the solicitor-client relationship because of the appellant’s failure to pay all of Miller Thomson’s accounts. ...
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[6] The court has the discretion to refuse to remove a law firm from the record. Considerations informing the exercise of this discretion include not only the interests of the law firm’s client but also comprise factors independent of the solicitor-client relationship, such as the impact on the other parties to the proceedings and the effect on the administration of justice: R. v. Cunningham, 2010 SCC 10 (CanLII), [2010] 1 S.C.R. 331, at para. 50; KingSett Mortgage Corporation v. 30 Roe Investments Corp., 2023 ONCA 196, at paras. 13 and 18; Tremblay c. Banque de Montréal, 2023 QCCA 691, at para. 21. . Pomata Investment Corp. (Treasure Hill Homes) v. Yang
In Pomata Investment Corp. (Treasure Hill Homes) v. Yang (Ont CA, 2023) the Court of Appeal considered a lawyer's duties when being 'removed from the record':[11] Further, Mr. Lulic never brought a motion to this court to be removed as the counsel of record. Rule 15.05 of the Rules of Civil Procedure requires a lawyer to act unless the client removes the lawyer or a court order has been obtained to remove the lawyer from the record. Similarly, a lawyer’s professional obligations require reasonable notice to a client of a withdrawal of services. Public confidence in the administration of justice depends on the public being able to rely on their lawyer of record. The moving parties were entitled to rely on Mr. Lulic as their lawyer of record. . KingSett Mortgage Corporation v. 30 Roe Investments Corp.
In KingSett Mortgage Corporation v. 30 Roe Investments Corp. (Ont CA, 2023) the Court of Appeal considers removal of solicitors from the litigation record:[1] Blaney McMurtry LLP (“Blaneys”) moved for an order under r. 15.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking to remove the firm as lawyer of record for the Appellant, 30 Roe Investment Corp. (“30 Roe”). I dismissed the motion with reasons to follow. These are the reasons.
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[13] There is relatively sparse law on when the court should exercise its discretion to refuse to take a law firm off the record. The cases focus on the interests of the client: see R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 49-50, and Todd Family Holdings Inc. v. Gardiner, 2015 ONSC 6590, 127 O.R. (3d) 714. The administration of justice must also be considered: Cunningham, at para. 45.
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