Exceptional Remedies for an Exceptional Circumstance

January 28, 2026

The ability of a party to choose counsel to represent them in litigation is a fundamental element of the legal system. However, while rarely engaged, courts in Ontario have inherent jurisdiction to remove lawyers or law firms from the record. Honourable Justice Valente had to grapple with these principles in the recent decision in Al-Hasnawi et al. v. The Corporation of the City of Hamilton et al., 2026 ONSC 274. As is clear from the endorsement, it is not a step that was taken lightly.

The moving Defendants in this action brought a motion for an order removing the Plaintiff’s counsel from the record on January 13, 2026. The action was commenced in 2018 but remained in the pleadings stage. Justice Valente was appointed as the case management judge in June of 2023. Despite sixteen case management conferences between July of 2023 and October of 2025 to address regularizing the Plaintiffs’ pleadings and move the matter forward, the matter had not been moved forward in that time.

Over the course of the case conferences, counsel for the Plaintiffs was repeatedly ordered to address preliminary issues with the pleadings, including to prepare, serve and file materials for an Amended Statement of Claim, obtain an Order to Continue for her clients who reached the age of majority, and deliver an Affidavit of Documents. Not only did the Plaintiffs’ counsel fail to comply with numerous orders, but also failed to attend a number of scheduled case conferences. Ultimately, Justice Valente agreed to hear the motion to remove her as counsel of record for the Plaintiffs.

Guiding Principles

There were no reported decisions dealing with a request to remove counsel of record based the facts before Justice Valente. The reported decisions addressing removal of counsel concerned conflict of interest or situations where counsel would be called a as a witness. Justice Valente relied on the principles outlined in MacDonald Estate v. Martin,1990 CanLII 32 (SCC) and S.B. v. J.M., 2019 ONSC 6128.

A fundamental value of the legal system is a party’s right to choose counsel to represent them in litigation and a litigant should not be deprived of that choice without good cause.

The Court must exercise the “highest level of restraint before interfering with a party’s choice of counsel”.

However, his right is not absolute and may be outweighed when the administration of justice will be detrimentally affected by the lawyer remaining as counsel of record. The Court has the inherent jurisdiction to remove counsel or from the record in specific circumstances, which is derived from the supervisory role over the administration of justice. The court will step in to disqualify counsel in three circumstances:

(1) to avoid the risk of improper use of confidential information;
(2) to avoid the risk of impaired representation; and
(3) to maintain the repute of the administration of justice.

The test to be applied was enumerated in MacDonald, which is whether a fair-minded, reasonably informed member of the public would conclude that the removal of the law firm is necessary for the proper administration of justice. The Court must balance the following factors:

(a) maintenance of respect for and the integrity of the high standards of the legal profession and the justice system as a whole;
(b) the principle that a litigant has a right to choose her counsel, which should not be interfered with lightly; and
(c) the objective of allowing reasonable mobility in the legal profession.

Analysis

Both parties conceded the applicability of the principles outlined above and counsel for the Plaintiffs did not submit responding materials.

Justice Valente began by considering whether the motion to disqualify counsel of record had been brought tactically. In this case, Justice Valente was satisfied that the motion was not tactical in nature on the basis that defence counsel had granted concessions and even went so far as to draft materials on behalf of the Plaintiffs’ counsel when she had drafted deficient materials. Further, he noted that some defendants would allow an action to languish and ultimately be dismissed for delay, which was not the case in this matter.

He then went on to consider and balance the need to maintain the integrity of the high standards of the legal profession and the justice system as a whole with the principle that a litigant has a right to choose their counsel, which should not be interfered with lightly.

Justice Valente found that, as an officer of the court, counsel are bound and should conduct themselves as this court directs, including attending scheduled case conference and complying with the Orders, which Plaintiffs’ counsel failed to do.

Justice Valente further noted that, after two and a half years of case management, the action remained at the pleading stage and that the inordinate delay could not continue. His Honour noted that the delay prejudiced both the Defendants and the Plaintiffs.

Justice Valente, on consideration of the facts and conduct of the Plaintiffs’ counsel, found that a fair minded, reasonably informed member of the public would conclude that the counsel of record had brought the administration of justice into disrepute and that she would continue to do so if she remained involved in the action. His Honour concluded that her removal was necessary for the proper administration of justice.

Disposition

Justice Valente granted the moving Defendants motion to remove counsel of record for the Plaintiffs.

Takeaways

The decision to remove a litigant’s counsel of record is not one that the court will take lightly, and the court will seek to balance a litigant’s right to choose their counsel with the principles of the proper administration of justice. Counsel must not take for granted that they are officers of the court and that they have an obligation to comply with court orders. Not only does failing to do so waste the court’s time, prejudice the opposing parties, and their own client, but it can also do harm to the administration of justice.