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Representation - Lawyers - Removal of Opposing Counsel. Malekzadeh v. Human Rights Tribunal of Ontario [removal of opposing counsel as potential witness]
In Malekzadeh v. Human Rights Tribunal of Ontario (Div Ct, 2026) the Divisional Court considered two applicant motions brought within an HRTO JR, these seeking to remove opposing counsel for conflict and for open court measures.
Here the court usefully considers a motion to remove opposing counsel, here for their potential role as witnesses in the case:2. Motion to remove counsel for the responding parties
a. Applicable legal principles
[11] The overarching test to be applied on a motion to remove a lawyer from the record is whether a fair-minded and reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the lawyer. This determination is very fact-specific and based on an examination of all of the factors in the case and the specific reason(s) why the motion is being brought. The task of the court is to uphold and preserve the integrity of the justice system while ensuring that litigants are not deprived of their counsel of choice without good cause. See Karas v. Her Majesty the Queen In Right of Ontario, 2011 ONSC 5181 at para. 26 and Best v. Cox, 2013 ONCA 695 at para. 8.
[12] The moving party bears the burden of demonstrating that counsel should be disqualified. See S.B. v. J.M., 2019 ONSC 6128 at para. 41 (“S.B.”).
[13] Courts often consider motions to remove a lawyer of record when the lawyer or a member of their firm is likely to be called as a witness.
[14] It has been recognized that it is improper for the deponent of an affidavit to act as counsel and rely on that affidavit. However, it is not necessarily improper for lawyers to appear on a motion where another lawyer or a staff member from their firm has filed an affidavit. See Essa (Township) v. Guerguis, 1993 CanLII 8756, [1993] O.J. No. 2581 at paras. 20, 21, 25-34 (Div. Ct.) (“Essa”).
[15] Courts have also recognized that counsel appearing as a witness may be problematic. Gillese J. (as she then was) stated the following in Urquhart v. Allen Estate, [1999] O.J. No. 4816 at paras. 27-28 (S.C.J.):When counsel appears as a witness on a contentious matter, it causes two problems. First, it may result in a conflict of interest between counsel and his client. That conflict may be waived by the client, as indeed, was done in this case. The second problem relates to the administration of justice. The dual roles serve to create a conflict between counsel’s obligations of objectivity and detachment, which are owed to the court, and his obligations to his client to present evidence in as favourable a light as possible. This is a conflict that cannot be waived by the client as the conflict is between counsel and the court/justice system.
Counsel are independent officers of the court. The trial judge must be able to rely upon plaintiffs’ counsel for a high degree of objectivity. The overriding value, in these circumstances, is concern for the proper administration of justice. A distinction must be drawn between the role of counsel as an independent officer of the court and the role of a witness whose objectivity and credibility are subject to challenge. […] See also Forsyth v. Blue Rock Wealth Management Inc., 2015 ONSC 6666 at para. 33, and 8657181 Canada Inc. v. Mehdi Au LLP, 2021 ONSC 1295 at para. 9.
[16] Similar problems can arise when a lawyer acts as counsel in an action where other lawyers from the same firm will appear as witnesses as to facts that are material and controverted. See Bedford Resources Holdings Limited v. 743584 Ontario Inc., 2009 CanLII 14048 at para. 1 (Ont. S.C.J.).
[17] In cases where the lawyer of record or a member of their firm is likely to be called as a witness, courts adopt a flexible approach and examine each case on its own merits. It is not sufficient for a moving party to suggest that opposing counsel is a potential witness or to allege only that they 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. A variety of factors are considered in such cases, including 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 moving party;
d. the significance of the evidence to be led;
e. the impact of removing counsel on the responding party’s 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;
h. the party who will call the witness; and
i. the connection or relationship between counsel, the prospective witness and the parties involved in the litigation. See Essa at paras. 45, 48 and S.B. at paras. 48, 64.
[18] Courts should be reluctant to make what may be premature orders preventing lawyers from continuing to act. This Court has stated that “[i]n 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 do so only in clear cases.” See Essa at para. 43.
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