The Applicants (the Defendants in the Action) applied to have a lawyer and his professional corporation (collectively, “Mr. Lee”) representing the Respondents (the Plaintiffs in the Action) removed as the lawyer of record. The Respondents had previously filed an Application for advance Costs, and Mr. Lee had personally sworn an Affidavit in support of the Application for advance Costs. The Applicants raised concerns about Mr. Lee continuing to act as counsel for the Respondents after having made himself a witness by filing an Affidavit in support of the Application for advance Costs.

Justice Graesser determined that the test for removal of a lawyer as counsel of record is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor. However, the Court noted that the case law is unclear on what being “counsel of record” means.

Justice Graesser noted that the Rules use the term “lawyer of record” in Division 4, starting with Rule 2.24.  His Lordship stated that the role of a lawyer of record includes being the address for service for a party the lawyer has filed pleadings on behalf of and appearing in Court for the party. The Court also noted that Rule 2.25 states that the lawyer of record’s duties are to conduct the Action in a manner that furthers the purpose and intention of Rule 1.2 and to provide the address of the party for whom the lawyer acts if directed by the Court upon Application.

After reviewing cases discussing removing a lawyer as counsel of record, the Court determined that Mr. Lee could not be counsel on any Court proceedings in the Action until after the advance Costs Application was completed. The Court determined that removing Mr. Lee from the file entirely was not justified. Justice Graesser ordered that Mr. Lee be removed as counsel of record in the Action until the Application for advance Costs was concluded. His Lordship also stayed other steps in the Action until further Order of the Court.