“Only in the rarest of cases should a court grant a solicitor’s removal Order: Best v. Cox et al, 2013 ONCA 695. In Kaiser (Re), 2011 ONCA 713 (CanLII) at 21, Cronk J.A. stated:
As the motion judge properly noted, “A litigant should not be deprived of counsel of its choice without good cause…” For this reason, Canadian courts exercise the highest level of restraint before interfering with a party’s choice of counsel. Where such discretionary, equitable relief is invoked, there must be a possibility of real mischief should a removal order be refused. The test is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice… [Citations omitted.]
As noted by Kiteley J. in Zaldin v. Zaldin, 2014 ONSC 6504 (CanLII) at 13:
There does not need to be a finding of impropriety in order for the solicitor to be removed, rather it is the appearance of impropriety that is the test. This is particularly true when the litigation involves a family dispute.
The leading solicitor’s removal case is MacDonald Estate v. Martin: 1990 CanLII 32 (SCC). As stated by Sopinka J. [at paras 47-48], the test for determining whether there is a disqualifying conflict of interest is whether “the public, represented by the reasonably-informed person would be satisfied that no use of confidential information would ever occur.” Two questions require answer:
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- Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?
- Is there a risk that it will be used to the prejudice of the client?”
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