TERRIGNO v CELMAINIS

This decision arose from two defamation Actions commenced by the Plaintiff against two different Defendants over separate social media publications. The Defendants applied to disqualify the Plaintiff’s counsel of record, Mr. Denis and his firm, on the basis that Mr. Denis was likely to be a material witness, and also sought consolidation of the two Actions.

On the disqualification issue, the Court noted that a lawyer should not continue as counsel of record where the lawyer is likely to be called as a material witness, and that the dual role would undermine the proper administration of justice. Applying the authorities on lawyer-witness conflicts, Justice Malik considered the likelihood that Mr. Denis would be called to testify, the significance of his evidence, whether the Application was brought in good faith, the prejudice to the Plaintiff if deprived of counsel of choice, and whether the conflict could be managed in some narrower way.

Malik J. found that Mr. Denis had direct, firsthand knowledge of events that were central to the Defendants’ justification and fair comment defences. He also concluded that the Defendants’ intention to call Mr. Denis as a witness was genuine, not speculative. The Court was not persuaded that the Application was tactical or brought in bad faith, and it was not satisfied that the Plaintiff would suffer meaningful prejudice, particularly because Mr. Denis and his firm could still assist in a non-advocate role. Justice Malik therefore concluded that a fair minded and reasonably informed member of the public would find that Mr. Denis could not act both as counsel of record and as a likely material witness in the same proceedings, and ordered that he and his firm be disqualified from acting as counsel of record.

On consolidation, the Court considered both Section 7 of the Defamation Act and Rule 3.72. Malik J. accepted that the two Actions overlapped in issues, evidence, and legal defences, but held that consolidation was not appropriate at that stage. One Action was already further along and had been directed to proceed by way of a Summary Judgment on liability, while the other had not yet reached the same procedural stage. In those circumstances, consolidation would risk delay rather than promote efficiency, and would not meaningfully reduce Trial time. The Court therefore dismissed the consolidation Application, while giving the Defendants leave to renew it later if consolidation became appropriate as the proceedings developed.

In the result, the Court granted the disqualification Application but dismissed the consolidation Application without prejudice to a later renewed application.