Court Removal of Counsel

Court Removal of Counsel

Court applications are occasionally made to remove the opposing counsel for various reasons ranging from litigation tactics to outright conflict of interest.

The following are two cases where this was argued and both discuss the cautious approach that the courts should take in considering such an application due to the inherent right in our legal system to choose one’s own counsel.

The BC Court of Appeal in  Coutu v Jorgensen, 2004 BCCA 400 at para. 31, stated ” it is a serious matter to seek to deprive a litigant of its chosen counsel in a manner that interferes with the conduct of the action”

This Court has previously taken a cautious approach to ordering the removal of counsel contrary to the wishes of the clients: see Mara (Guardian ad litem of) v. Blake (1996), 134 D.L.R. (4th) 716 (B.C. C.A.) at para. 13; Ribeiro at para. 20, quoting Esson C.J.B.C. (as he then was) in Manville Canada Inc. v. Ladner Downs (1992), 63 B.C.L.R. (2d) 102 (B.C. S.C.), at 117, (affirmed in (1993), 76 B.C.L.R. (2d) 273 (B.C. C.A.)).

This cautious approach acknowledges the right of a litigant to his or her choice of counsel and the prejudice from being forced to change counsel in the course of litigation. Balancing those interests are, of course, the interests of public confidence in the integrity of the legal profession and the administration of justice: see Martin v. Gray at para. 51. This Court has previously taken a cautious approach to ordering the removal of counsel contrary to the wishes of the clients: see Mara (Guardian ad litem of) v. Blake (1996), 134 D.L.R. (4th) 716 (B.C. C.A.) at para. 13; Ribeiro at para. 20, quoting Esson C.J.B.C. (as he then was) in Manville Canada Inc. v. Ladner Downs (1992), 63 B.C.L.R. (2d) 102 (B.C. S.C.), at 117, (affirmed in (1993), 76 B.C.L.R. (2d) 273 (B.C. C.A.)).

This cautious approach acknowledges the right of a litigant to his or her choice of counsel and the prejudice from being forced to change counsel in the course of litigation. Balancing those interests are, of course, the interests of public confidence in the integrity of the legal profession and the administration of justice: see Martin v. Gray at para. 51.

Mayer v Mayer BCSC 615 followed Coutu v Jorgensen involved very long and protracted litigation involving several court decisions and after four years an application was brought to remove the opposing counsel which was dismissed. these reasons dealt with an application for special costs but recapped the background and the law re this area:

[13] In the circumstances before me, to deprive Mhinder Mayer of his chosen counsel, who has represented him now for many years in this complex litigation, would itself threaten the integrity of the justice system, and impair the very important principle of access to justice. I am satisfied on the authorities that a clear and genuine competing threat would be required to justify the order that Bhora Mayer seeks. As was stated in Manville Canada Inc. v Ladner Downs (1992), 63 BCLR (2d) 102 (SC) at 117,

…the imposition of such hardship and injustice can only be justified if it is inflicted to prevent the imposition of a more serious injustice on the party applying. It follows that the injunction should be granted only to relieve the applicant of the risk of “real mischief”, not a mere perception.

I see no such risk of more serious injustice arising in this case, over which I have now presided for some four years.

12      It does not, however, necessarily follow that bringing an unsuccessful application to disqualify counsel is reprehensible and worthy of rebuke. As the cases make clear, the elements that need to be balanced in considering such an application are the integrity of the justice system on the one hand, and the right of a litigant to counsel of its choice on the other: MacDonald Estate v Martin, [1990] 3 SCR 1235.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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