The defendants in a solicitor's negligence action brought a motion to remove the plaintiff's lawyer and his law firm from the record.
The defendants argued that the plaintiff's lawyer was a material witness because he had provided a second opinion to the plaintiff during the underlying litigation and subsequently negotiated its settlement.
Applying the Essa factors, the court found that the lawyer would likely have material evidence regarding the advice given, mitigation, and damages.
The court concluded that the lawyer's dual roles as advocate and witness created an irreconcilable conflict of interest.
The motion was granted and the lawyer and his firm were removed from the record.
