Evan Shapiro

Following dismissal of a motion seeking to remove the plaintiffs’ solicitors of record, the court addressed costs.

Applying the discretion under s.131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality and the surrounding circumstances.

Although the plaintiffs were the successful party, the motion had been dismissed without prejudice and the defendant’s timing argument was not improper or vexatious.

Relying on the fairness principles articulated in appellate authority, the court fixed costs at a reasonable amount rather than the full costs incurred.

The defendant franchisor brought a motion to remove the plaintiffs’ solicitors of record on the basis that the firm had previously represented the plaintiffs in negotiating the franchise agreement and would likely be a necessary witness at trial.

The plaintiffs argued the motion was premature because documentary discovery and examinations for discovery had not yet occurred and it had not been established that counsel would be a material witness.

The court held that removing counsel of choice at a pre‑trial stage should occur only in the clearest of cases.

Given the early stage of the litigation and the possibility that discovery might eliminate the need to call counsel as a witness, the court concluded that the motion was premature.