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Representation - Lawyers - Removal from Record (2). Phillips v. Dominion Lending Centres Better Rate Mortgage
In Phillips v. Dominion Lending Centres Better Rate Mortgage (Div Ct, 2026) the Divisional Court considers R15.04 [Motion by Lawyer for Removal as Lawyer of Record]:2. Applicable legal principles
[8] The removal of a lawyer of record under Rule 15.04 of the Rules of Civil Procedure is within the court’s discretion. Considerations informing the exercise of the court’s discretion to remove a lawyer of record include the impact of the removal on the client’s interests, on the other parties, and on the administration of justice, and whether the lawyer-client relationship “has broken down because of, for example, a loss of confidence in the solicitor’s abilities or the client’s failure to communicate or follow instructions and to make a reasonable payment on the solicitor’s reasonable accounts.” See Brown v. Williams, 2023 ONCA 730 at paras. 2-3 (“Brown”).
[9] In Baradaran v. Alexanian, 2020 ONSC 4759 at para. 6, Associate Justice Robinson summarized as follows the principles that apply in the court’s assessment of a removal motion that is opposed by the client:[1](a) The principles governing exercise of the court’s discretion to allow or refuse withdrawal “transcend the simple canons of contractual interpretation”.
(b) In deciding whether to allow a lawyer to be removed from the record under Rule 15.04 of the Rules, the court’s discretion is informed by the Rules of Professional Conduct. However, the court is not acting as the Law Society of Ontario (the “LSO”). Whether the Rules of Professional Conduct were violated or are being violated is a question for the LSO itself.
(c) The Rules of Professional Conduct require that a lawyer have “good cause” or “justifiable cause” to terminate a relationship, which must also consider and balance the amount of notice available to ensure that the clients are not left with too little time to find alternate counsel: see Rule 3.7-1 of the Rules of Professional Conduct and the related commentary.
(d) Withdrawal may be sought for an ethical reason, meaning that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue to act for the client. This includes circumstances such as instructions to act in violation of the lawyer’s professional obligations or a client’s refusal to accept the lawyer’s advice on an important trial issue. Generally, the court will grant removal in such circumstances, since counsel may be required to withdraw in order to comply with her or his professional obligations. It would be inappropriate for the court to require counsel to continue to act when to do so would put her or him in violation of professional responsibilities.
(e) Withdrawal may also be sought for non-payment of legal fees or another non-ethical reason. In these circumstances, the court may exercise its discretion to refuse counsel’s request having regard to the following non-exhaustive list of factors:(i) whether it is feasible for the client to represent herself or himself in the litigation, having regard to considerations such as the particular circumstances of the client and the complexity of the proceeding;
(ii) other means of the client obtaining representation;
(iii) conduct of counsel, such as whether counsel gave reasonable notice to the client to allow her/him to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
(iv) impact on the client from delay in the proceedings;
(v) impact on the other parties in the proceeding and, if applicable, witnesses and jurors, including consideration of the expected length and complexity of the proceeding; and
(vi) the history of the proceeding, including whether the client has changed lawyers repeatedly. (f) One of the court’s principal concerns on a removal motion brought by counsel under Rule 15.04 is ensuring that the client is able to obtain new counsel without being prejudiced beyond the loss of historical knowledge that is necessarily incidental to a change of counsel. Prejudice to a client from a withdrawal is thereby always a significant factor to be considered. Serious prejudice militates strongly against permitting withdrawal, consistent with Rule 3.7-3 of the Rules of Professional Conduct, which expressly provides that a lawyer is not permitted to withdraw if serious prejudice would result to the client.
(g) The court is also concerned with ensuring that granting a removal order does not cause serious harm to the administration of justice.
(h) The court is not strictly bound by the terms of the parties’ contractual arrangements. Granting or refusing a removal motion has no bearing or effect on a claim for breach of contract or for compensation that the client (or the lawyer) may choose to bring. . Harripersad v. Wagner Sidlofsky LLP
In Harripersad v. Wagner Sidlofsky LLP (Div Ct, 2026) the Divisional Court illustrates the new 2025 'open court' restriction provisions of the R15.04 ['Motion by Lawyer for Removal as Lawyer of Record'].
The provisions require the moving counsel to redact information that is solicitor-client privileged or otherwise "prejudicial to the client" from any public filings respecting the motion:[2] Having reviewed the material filed on the motion, including the portions which have been redacted from the public record pursuant to r. 15.04(1.2) and (1.3), I am satisfied that the solicitor-client relationship has broken down to the point that counsel cannot continue to effectively represent the clients. I therefore grant the motion and order that Z Legal P.C. be removed as lawyers of record for the appellant.
....
[5] As the redacted portions of the motion record contain material that is protected by solicitor-client privilege, I am satisfied that a sealing order is necessary based on the principles set out in Sherman Estate v. Donovan, 2021 SCC 25, [2012] 2 S.C.R. 75, at para. 38. . Rosenbaum v. Ibe
In Rosenbaum v. Ibe (Div Ct, 2026) the Divisional Court considered "a motion pursuant to r. 15.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order removing ... the lawyer of record":[5] A breakdown in the solicitor-client relationship due to a loss of confidence is a basis for granting a lawyer’s motion for removal, even where it is opposed by the client: Brown v. Williams, 2023 ONCA 730, at paras. 3-4; Correct Group Inc. v. Cameron, 2024 ONSC 3367, at paras. 9-11; myNext Corp. v. Pacific Mortgage Group Inc., 2018 ONSC 7316, at paras. 22-23; I.K.Z. v. S.N.A., 2015 ONSC 1884, 73 C.P.C. (7th) 193, at paras. 6-9; Kovinich v. Kovinich (2008), 58 C.P.C. (6th) 78 (Ont. S.C.J.), at para. 40. In fact, an argument could be made that the court must permit removal in such circumstances, based on R. v. Short, 2018 ONCA 1, 139 O.R. (3d) 81, at paras. 33-34:There is no controversy as to the applicable legal principles. If trial counsel seeks to be removed from the record because he has not been paid, the trial judge has a discretion to allow counsel to get off the record. If the trial judge declines to allow counsel to get off the record, counsel must continue to act for the accused, subject of course to being fired by the client. If, however, “ethical” concerns motivate counsel’s application to be removed from the record, the trial judge is obliged to order counsel removed without any inquiry into the particulars underlying the request: Cunningham, [2010 SCC 10, [2010] 1 S.C.R. 331] at paras. 48-49, 58; R. v. C.(D.D.), 1996 ABCA 303, 110 C.C.C. (3d) 323, at para. 19, leave to appeal refused: [1996] S.C.C.A. No. 453.
In this context, ethical reasons could refer to a client’s request that a lawyer act illegally or contrary to the Law Society of Upper Canada’s Rules of Professional Conduct. Ethical reasons also extend to circumstances that may not involve any illegality, but which have resulted in a breakdown of the client-solicitor relationship to the point that counsel cannot effectively give legal advice or receive instructions from the client. The phrase “loss of confidence” is often used to describe this latter situation: C.(D.D.), at para. 26; David Layton & Hon. Michel Proulx, Ethics and Criminal Law, 2d ed. (Toronto: Irwin Law Inc., 2015) at pp. 561-62; Law Society of Upper Canada Rules of Professional Conduct: Rule 3.7.2 and commentary. [Emphasis added].
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