Previous Wills Ordered Produced

In DeContiis v DeContiis Estate 2023 BCSC 2163 , a wealthy father of seven boys did six wills between 1997 and 2009 which the plaintiff sought to be produced in order to determine the deceased true intentions re his estate planning.

The deceased left a last will, January 2016, which disinherited one son entirely.

In 2019. The deceased established an alter ego trust in which he put substantial assets.

The plaintiff sought and was granted production of the previous six wills of the deceased in order to determine the deceased true intentions re his estate planning

The plaintiff argues that s. 62 of Wills and Estate Succession Act, S.B.C. 2009, c. 13 supports production of the prior wills. Section 62 states:

62 (1) In a proceeding under section 60, the court may accept the evidence it considers proper respecting the will-maker’s reasons, so far as may be determined,
(a)for making the gifts made in the will, or

(b)for not making adequate provision for the will-maker’s spouse or children,

including any written statement signed by the will-maker.

(2) In estimating the weight to be given to a statement referred to in subsection (1), the court must have regard to all the circumstances from which an inference may reasonably be drawn about the accuracy or otherwise of the statement.

[The amended notice of civil claim at para. 53 of Part 3, Legal Basis, asserts that “prior wills, executed before 2016 and without the undue influence of the Younger Brothers, included the Plaintiff as a beneficiary”.

Based on these paragraphs of the amended notice of civil claim alone, the defendants ought to have listed the prior wills in their initial list of documents because they are material.

The prior wills are squarely at issue because the court considers prior wills where a will or other estate planning documents are challenged.

The prior wills are relevant to the claim of undue influence because they will disclose how the deceased treated the plaintiff in the prior wills which would be an indication of Innocenzo’s attitudes toward Ivano over time.

In Jung v. Poole Estate, 2021 BCSC 623, the trial judge analyzed the deceased’s attitudes towards his disinherited children by, in part, examining the terms of the prior wills (paras.

51 to 52) and Geluch v. Geluch Estate, 2019 BCSC 2203, in which the trial judge considered prior wills as evidence of the deceased’s prior wishes that were inconsistent with the impugned final will (para. 117).

Rule 7-1(11) requires listing and production of documents that “relate to any or all matters in question in the action”. The test for such disclosure is whether the documents “may enable a party, directly or indirectly, to advance their own case or damage that of their adversary, including documents that may fairly lead to a train of inquiry having either consequence”: Richter v. Richter Estate, 2023 BCSC 105 at paras. 57 and 58.

In Westman v. Westman, 2000 BCSC 236, the trial judge referred to the history of the deceased’s prior wills as indicative of an “inter-family phenomenon” (at para. 34) that was relevant to an assessment of whether the will made adequate provision for the deceased’s spouse. In the present case, the analogy to “inter-family phenomenon” is the changing attitudes Innocenzo had to each of his sons. The prior wills are relevant to this issue.

in Kobzos v. Kobsoz Estate, 2019 BCSC 2254, the documents relating to the deceased’s estate planning were relevant for production.

Enforcing Oral Contracts

Stojka v Stojka 2023 BCCA 446 held that a binding  oral contract existed between two brothers with respect to a beneficial interest in a property.

The court reviewed the law re oral contracts and in particular amongst family members where the communications in the family context are often no more than statements of intent or wishes.

The question of whether a given requirement for the formation of a contract has been met “involves applying a legal standard to a set of facts and is therefore a question of mixed fact and law”: Housen v. Nikolaisen, 2002 SCC 33 at para. 26.

If a party to an oral agreement acts as though there were a binding contract or the other party relies on the agreement to their detriment the party is unable to rely of the lack of a written agreement as a defence: Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2009 BCSC 1303 at paras. 342–345 [Le Soleil];

• An enforceable agreement is reached where parties have reached a meeting of the minds and the parties express themselves outwardly in a manner that indicates an intention to be bound: Le Soleil at paras. 322–323;

• Reasonable certainty of the terms of the agreement are required: Le Soleil at paras. 339–340;

• The existence of an oral agreement is determined by applying the objective reasonable bystander test to consider how the promisor’s conduct would appear to a reasonable person in the position of the promise: Le Soleil at paras. 324–325;

• The party alleging the oral agreement must be able to prove its existence on the balance of probabilities: Bell v. Bell, 1998 CanLII 3194 at para. 14, [1998] B.C.J. No. 1457 (S.C.).

Wills Variation and Assets Outside of the Estate

Assets passing outside of the estate such as inter vivos dispositions and assets passing by right of survivorship are relevant to determining whether a will should be varied under wills variation provisions and the issue of adequate provision for an adult child.

In Inch v. Battie, 2007 BCSC 1249, A.F. Wilson J. stated:

It thus appears that, although transfers passing outside of the Will are not part of the estate, the effect of such gifts can be considered in determining to what extent, if any, the court should vary the distribution under the Will.

In DeLeeuw v. DeLeeuw, 2003 BCSC 1472, Masuhara J. did consider the assets transferred to the claimant, the surviving spouse, before the testator’s death, in determining whether he made adequate provision for her proper maintenance and support (at paragraphs 98 – 100).

In Ryan v. Delahaye Estate, 2003 BCSC 1081, D. M. Smith J. considered compensation provided to the testator’s son for his devotion during the parents’ lifetime, and an interest-free loan made to him, in determining if there was proper maintenance and support for the other child. I thus conclude that, although inter vivos dispositions, and assets passing as a result of a right of survivorship pass outside the estate, and are thus not subject to a claim under the Wills Variation Act, the court can consider them when assessing, from the perspective of a judicious person, in the circumstances, whether a parent has met her moral obligations to an adult child.

Enforcing Contracts

Meadows v Sward Estate 2023 BCSC 1369 involved a claim for $62,000 pursuant to a loan agreement/contract that was denied as having made a binding contract.

The case reviews the role of the court in attempting to uphold contractual obligations.

There is no legal requirement for a loan agreement to be set out in a written document. While it is obviously prudent to set down the terms of in writing, the law recognizes agreements reached orally or through conduct establishing an intention to be bound. As Justice Dickson (then of this Court) stated in Soleil Hotel & Suites Ltd. v. Soleil Management Inc., 2009 BCSC 1303:

Courts strive to uphold contractual obligations solemnly and freely undertaken. They do not, however, impose them upon parties who have not reached agreement on all essential terms: Catalyst Paper Corp. v. Companhia de Navegacao Norsul, 2008 BCCA 336.

For parties to be bound in a contractual relationship there must be a manifest meeting of the minds. They must express themselves outwardly in a manner that indicates both an intention to be bound and reasonably certain mutually agreed terms: Klemke Mining Corporation v. Shell Canada Limited, 2007 ABQB 176, affirmed 2008 ABCA 257 (CanLII).

These fundamental principles of contract law enable commercial life to operate in a fair, predictable and efficient manner. They apply whether the purported contract in question is concluded in writing, orally, by conduct, or by a combination thereof. The key question in all cases is whether an agreement has been reached on all essential terms, regardless of its form: Catalyst Paper Corp. supra; Periscan Financial Services Inc. v. 519090 B.C. Ltd., 2007 BCSC 707; Leong & Associates Actuaries & Consultants Inc. v. Watt, 2003 BCSC 1885.

The test for determining whether there was an intention to create legal relations is objective. The question is whether the parties “indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract”: Berthin v. Berthin, 2016 BCCA 104 at para. 46, citing G.H.L. Fridman, The Law of Contract in Canada (6th ed., 2011) at 15.

Evidence of the parties’ actual subjective state of mind is not relevant: Hammerton v. MGM Ford-Lincoln Sales Ltd., 2007 BCCA 188 at para. 23. As Justice Blackburn stated in Smith v. Hughes (1871), L.R. 6 Q.B. 597 (Q.B.), the leading English decision on the issue:

If whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.
Or, as it was put in Osorio v. Cardona 1984 364 BCSC at paras. 32 and 34, evidence establishing that one party had a “secret mental reservation about performing the agreement” does not mean a contract was not concluded.

The intention of the parties must be manifested before or when the contract is made. However, evidence of the parties’ subsequent conduct may be looked to in determining whether a contract was formed: Hoisington v. Johnson & Johnson Inc. 2015 BCSC 1582 at para. 52; Hoban Construction Ltd. v. Alexander, 2012 BCCA 75 at paras. 39 and 43-44 [Hoban Construction Ltd].
Finally, there is a distinction between a concluded agreement that has not been successfully “papered over” and a failure to conclude an agreement. In Hoban Construction Ltd., the Court of Appeal (per Bennett J.A.) wrote:

In [Langley Lo-Cost Builders Ltd. v. 474835 B.C. Ltd., 2000 BCCA 365] at para. 76, this Court referred to Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 CanLII 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.), setting out the following excerpt from 103-104:

As a matter of normal business practice, parties planning to make a formal written document [of] the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange or correspondence, or other informal writings. The parties may “contract to make a contract”, that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.

However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the “contract to make a contract” is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself…

Trustee Care and Management Fees

Bokovic v Borkovich 2023 BCSC 2050 reviewed the law relating to trustee care and management fees of estate assets.

Section 88(3) of the Trustee Act permits an executor to apply annually for “a care and management fee and the court may allow a fee not exceeding 0.4% of the average market value of the assets.”

In Mikaloff 2018 BCSC 756, Registrar Nielsen also cited Re Pedlar, [1982] 34 B.C.L.R. 185 (S.C.) [Pedlar], in which the Court set out the following list of factors, which can be considered in determining whether any care and management fee should be allowed and, if allowed, the extent of such fee:

· The value of the estate assets being administered;

· The nature of the estate assets being administered;

· The degree of responsibility imposed upon the trustee by the terms of the will or other instrument, including the length or duration of the trust;

· The time expended by the trustee in the care and management of the estate;

· The degree of ability exhibited by the trustee in the care and management of the estate;

· The success or failure of the trustee in the care and management of the estate; and

· Whether or not some extraordinary service has been rendered by the trustee in the care and management of the estate.

[76] In Pedlar, the Court reiterated that each application must be decided upon its own facts and the list of factors is not intended to be exhaustive as there may be other factors deserving consideration depending upon the circumstances (para. 15).

Lawyer Client Privilege Waived By Correspondence Disclosure

In S. (FCA) v S. ( CE) 2023 BCSC 1098 the court determined that the respondent  had waived solicitor client privilege over parts of her former counsel’s file by disclosing correspondence between her and her former counsel in her application to amend pleadings.

Counsel for the respondent was ordered to deliver copies of all communications relating to the topic of the disclosures.



Waiver of privilege can be express or implied. A court will deem privilege waived where a party takes a position inconsistent with the maintenance of privilege or makes legal assertions that make it unfair for them to rely on privilege: Do Process LP v. Infokey Software Inc., 2015 BCCA 52 at para. 23.

In an oft-cited passage from S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd., [1983] B.C.J. No. 1499 (BCSC), Justice McLachlin, as she then was, established the basic principles of voluntary waiver of privilege:

Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive that privilege. However waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication will be held to be waiver as to the entire communication…


It has long been the rule that where privilege is waived, production of all documents relating to the acts contained in the communication will be ordered: see also Doland (George) Ltd. v. Blackburn, Robson, Coates & Co., [1972] 3 All E.R. 959 (Q.B.), cited in Sopinka et al, The Law of Evidence in Canada (6th ed.) at p. 1102. The policy reasons for this incursion into the sphere of privilege are fairness and consistency: see S. & K. Processors Ltd.supra. A party cannot “cherry-pick” favourable aspects of privileged communications without disclosing the entirety of the communication.

This prohibition against “cherry-picking” and using privilege as both a “sword and a shield” was further defined in Pacific Concessions, Inc. v. Weir and Weir, 2004 BCSC 1682. In that case the defendant sought to rely on email communication between himself and his counsel, which he appended to his affidavit, as evidence to support his position at the summary trial. The plaintiff argued that in appending emails to his affidavit, the defendant waived solicitor-client privilege attaching to his communications with his counsel regarding the subject matter of the action. Justice Kirkpatrick found that solicitor-client privilege had been waived with respect to the email that was appended and any communications passing between the defendants and their solicitor in response to the issues raised in the email as follows:




Wills Variation- Long Time Marriage Like Relationship

Lemire v Von Hollen 2023 BCSC 1348 is a good example of a wills variation claim involving a 31 year marriage like relationship, and the intervention of family law principles being increasingly utilized in wills variation actions involving a matrimonial matter.

The plaintiff was 76 years of age and was left $10,000 in his partners will, with her leaving the home that she owned evenly between her three adult children. His income was approximately $24,000 per year from a pension. He had vacated the matrimonial home and moved into an uninsulated trailer not meant for all year round use on a friend’s property.
The value of the estate was approximately $550,000 and the plaintiff had approximately $100,000 of his own.

They lived in the home owned by the deceased for most of their relationship and he cared for her for the last few years of her life while she was in poor health. The court varied the will to give him $270,000, being one half of the sale proceeds of the home.

Legal Analysis

Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 at 823–824, is the leading authority on whether to vary a will, and to what extent, by balancing testamentary autonomy and the testator’s legal and moral obligations.

For this situation, the key principles from Tataryn are:

i. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable.
ii. The court should only intervene if the testator has chosen an option that falls below his or her obligations measured by legal and moral norms.
iii. The testator’s freedom to dispose of his/her property is not to be interfered with lightly and only in so far as the statute requires.

The deceased’s legal obligations are to be assessed based on the maintenance and property obligations she would have had under the FLA if she and the plaintiff had separated just before her death.

Her moral obligations are typically to be assessed based on society’s reasonable expectations of what a judicious person would do in the circumstances.

Under s. 81 Family Law act (FLA ) at separation, the plaintiff was presumptively entitled to a one-half undivided interest in the parties’ family property, regardless of their respective uses or contributions.

However under s. 85,the matrimonial home was not “family property” because the deceased acquired it before their relationship commenced.

What is family property, however, is its increase in value between the start of their relationship and the date of the hypothetical separation.

The court held that the entire value should be treated as family property under FLA s. 96(b) because of the long duration of their relationship and the plaintiff’s direct contribution to its maintenance and improvement.

The court awarded him 35% of the value of the home for his legal claims and a further 15% pf the home for his moral claims, totalling 50% of the net sale proceeds of the home.
The court reasoned that the sum of about $370,000 in total assets should put the plaintiff in a modest yet reasonable financial position for housing himself in the future, while respecting the deceased’s wishes to leave a substantial gift to her three children.

Wills Variation- Abandoned Infant Receives 60% of Estate

Buatista v Gutkowski Estate 2023 BCSC 1485 is a favorable plaintiff’s case where an infant son was abandoned by his mother and raised by extended family members in the Philippines after his mother moved to Canada.

The mother had little to do with her son and he first met her at age 7. She provided some financial support, but the court was suspicious that it had been adequate.

They met in 2018, and had an argument about her financial support of her niece. The deceased never spoke to her son again and he produced evidence of many unanswered text messagesto his late mother.

The deceased had left her only child, 25% of a $900,000 estate, with the residual 75% going to her niece and sister.

The court varied the will, to instead provide 60% to the abandoned adult child, and 20% each to her sister and niece.

The Law

The leading authority on wills variation in British Columbia, albeit decided under an earlier statute, is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 1994 CanLII 51. The provision considered in Tataryn is worded slightly different than s. 60 of WESA, but the concepts are the same: Scurek v. Scurek, 2021 BCCA 178 at para. 7.

[39] In Tataryn, the Supreme Court of Canada said that a court has broad discretion to make orders that are just and equitable in the specific circumstances of the case, and in light of contemporary standards. The statute must be read in light of modern values and expectations in a search for contemporary justice: Tataryn at 814–816.

Dunsdon v. Dunsdon, 2012 BCSC 1274, in cases decided after Tataryn, courts have considered a number of factors as informing the existence and strength of a testator’s moral duty to independent adult children. The same considerations are also relevant to determining what constitutes adequate, just, and equitable provision in the circumstances of the case: paras. 131, 134.

The factors were set out at para. 134 and include:

· relationship between the testator and claimant, including abandonment, neglect, and estrangement by one or the other;
· size of the estate;
· contributions by the claimant;
· reasonably held expectations of the claimant;
· standard of living of the testator and claimant;
· gifts and benefits made by the testator outside the will;
· testator’s reasons for disinheriting;
· financial need and other personal circumstances, including disability, of the claimant;
· misconduct or poor character of the claimant;
· competing claimants and other beneficiaries.

In McBride v. Voth, 2010 BCSC 443, Ballance J. wrote:

“The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children”

Mortgage Obtained By Fraud Not Valid

Le v Chan ( Trustee) 2023 BCSC 1654 confirmed the law that a mortgage obtained by fraud, such a forgery is invalid.


 A mortgage obtained by fraudulent means does not constitute a valid or enforceable charge on title to land in British Columbia: Credit Foncier Franco-Canadien v. Bennett (1963), 43 W.W.R. 545, 1963 CanLII 839 (BCCA) and Reliable Mortgages Investment Corp. v. Chan, 2011 BCSC 1080 at para. 39. Further, a mortgage granted by a party who lacks the valid authority to grant the said mortgage is invalid which accords with the legal principle of nemo dat quod non habet – one cannot give what one does not have: Reliable at para. 31; see also Land Title Act, RSBC 1996, c 250, ss. 25.1, 26(1), 26(2).

[34]       Courts have held that when a mortgage application is found to be a forgery, the mortgage registered against title is a nullity, and will be unenforceable and the court will direct the registrar to discharge the mortgage: Homewood Mortgage Investments Ltd. v. Lee, 2008 BCSC 512.

[35]       Put simply, a mortgage acquired fraudulently or for which the supposed mortgagor lacked the authority to grant is invalid and unenforceable. However, to rebut the deemed presumption that the registration evinces an interest, the party alleging the fraud must adduce evidence to establish the fraud. Accordingly, in the case at bar, Ms. Chan bears the evidentiary burden to provide “clear and cogent” evidence to establish, on a balance of probabilities, that the Mortgage was obtained by fraud and registered on title fraudulently through forged documents. As Madam Justice Wedge helpfully explained in Lloyd Investments Ltd. v. Wang, 2023 BCSC 303:

[22] As the plaintiff in this action, Lloyds bears the legal onus to prove its case against Ms. Wang.  However, the evidentiary onus is on Ms. Wang to prove that the Lloyd Mortgage was entered into fraudulently through a forged power of attorney.  The onus of proof with respect to the allegation of fraud advanced by Ms. Wang is on a balance of probabilities.  Some authorities suggest that this onus can be met only with clear and cogent evidence.  In the case of Bank of Montreal v. Chan, 2004 BCSC 841 [Chan], this Court held as follows at paras. 23-24:

It is common ground that the validity of the mortgage rises or falls with the validity of the powers of attorney.

The Chan respondents bear the onus of proving the powers of attorney to be forgeries.  Although the standard of proof is on a balance of probabilities, the onus will not be met except with clear and cogent evidence: Continental Insurance Co. v. Dalton Cartage Ltd., 1982 CanLII 13 (SCC), [1982] 1 S.C.R. 164, 131 D.L.R (3d) 559 (S.C.C.) at 169-170.

[23] The “clear and cogent evidence” standard is not, however, a departure from proof on a balance of probabilities.  In Wanson (Bristol) Development Ltd. v. Sahba, 2018 BCCA 260, the Court, after reviewing the case law on the issue, said at paras. 28-29: “What these cases stress that the party with the burden of proving a fact in issue must prove it on a balance of probabilities and on no higher standard, even if the fact involves criminal or other moral blameworthy conduct.”

[24] Most recently, in British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., [2023 BCCA 70], the Court reminded us at paras. 162 to 164 of the decision of the Supreme Court of Canada in F.H. v. McDougal, 2008 SCC 53.  In that decision the Court “put to rest any debate that a heightened standard of proof applies in civil cases involving criminal or morally blameworthy conduct”.  The level of scrutiny applied by the finder of fact “does not change with the seriousness of the case”.  However, the quality of the evidence required to meet the balance of probabilities standard “will depend upon the nature of the claim and of the evidence” adduced.

When The Lawyer Is Also a Witness

Re Zenrosso Estate 2023 BCSC dealt with an issue where a conflict of interest arose with respect to a lawyer representing the sole beneficiary personally  and also in the capacity of  the executor at a passing of accounts where the lawyer would also be a witness. The issue was the division of fees between acting in the role of executor and being the residual beneficiary

The court held that the lawyer was in a conflict of interest and was removed as acting for the executor at the passing of the accounts.


The Code of Professional Conduct for Lawyers In British Columbia [Code] states:

2.1-3(k) A lawyer who appears as an advocate should not submit the lawyer’s own affidavit to or testify before a court or tribunal except as to purely formal or uncontroverted matters, such as the attestation or custody of a document, unless it is necessary in the interests of justice. If the lawyer is a necessary witness with respect to other matters, the conduct of the case should be entrusted to other counsel

5.2-1 A lawyer who appears as advocate must not testify or submit his or her own affidavit evidence before the tribunal unless

(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal;

(b) the matter is purely formal or uncontroverted; or

(c) it is necessary in the interests of justice for the lawyer to give evidence.

 A lawyer should not express personal opinions or beliefs or assert a fact that is properly subject to legal proof, cross-examination or challenge. The lawyer should not, in effect, appear as an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. …

      The Code is not binding on a court, but it may be persuasive as an important statement of public policy: MacDonald Estate v. Martin, 1990 S.C.R. 1235, [1991] 1 W.W.R. 705 at paras. 16 and 18.

      This Court has the inherent jurisdiction to remove from the record lawyers who are in a conflict of interest: MacDonald Estate at p. 713.

       Some salient factors to be considered in deciding whether to remove a lawyer of record were set out in Essa (Township) v. Guergis, [1993] O.J. No. 2581 at para. 48.


These include:

(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 party’s right to be represented by counsel of choice;

(f)   Whether trial is by judge or jury;

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

(h)  Who will call the witness; and

(i)    The connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

       In Elkay Management Inc. v. Law Studio Professional Corporation, 2021 ONSC 3181 at para. 18, the Ontario Superior Court of Justice provided additional principles to consider on a motion to remove a lawyer of record who may be a witness at trial, in particular (internal citations omitted):

(v)  The court’s concern of a lawyer appearing as a witness is that (i) there may be a conflict of interest between the lawyer and client and (ii) the administration of justice can be impaired by a conflict between the lawyer’s obligations of objectivity and detachment which are owed to the court and the lawyer’s obligation to his or her client to present evidence in as favourable a light as possible. …

(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”…

(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…

    At para. 15 of Webb v. Attewell (October 4, 1994) Vancouver A013381/CA13480 (B.C.C.A.), cited in Fraresso v. Wanczyk, 1995 CanLII 1127 (B.C.S.C.) at para. 7:

The law does not forbid a barrister appearing for his client because he has given, or may have to give, evidence.  The rule of professional practice is that he or she ought not to do so when doing so may put the court in an invidious position.  The court is in an invidious position when counsel gives evidence on a contested issue.  When counsel does that, he or she is also in the embarrassing position of inviting the court to accept counsel’s evidence rather than that of another witness.