Wiggins v. Ricciardi, 2023 ONSC 2297

Court File and Parties

COURT FILE NO.: CV-17-583667 RELEASED: 2023/04/14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jefferson Wiggins et al. v. Dr. Philip Ricciardi

BEFORE: Associate Justice Graham HEARD: March 29, 2023

COUNSEL: David Bleiwas for the plaintiffs Todd Burke and Romina Hassanzadeh for the defendant (moving party)

Reasons for Decision

(Defendant’s motion to prohibit plaintiffs’ proposed new counsel from representing plaintiffs in this action)

1The plaintiff Jefferson Wiggins and his ex-wife were involved in an acrimonious divorce proceeding in which the issues included custody, access, and parental alienation of their three children. Mr. Wiggins was represented in that proceeding by a lawyer Brian Ludmer.

2The defendant Dr. Ricciardi is a registered psychologist who provided counselling to the plaintiff’s children during the divorce proceeding. Although Dr. Ricciardi began counselling the children in 2010, he became formally engaged in that regard pursuant to the judgment of Harper J. released June 27, 2011 (Fiorito v. Wiggins, 2011 ONSC 1868) in which he made numerous orders including (at para. 191):

191 3.(h) The Children’s Aid Society shall arrange for counselling for the children to deal with the emotional abuse, their distorted reality of their father and promote the reunification of the children and the father.

The current action

3In the current action, commenced on September 29, 2017, Mr. Wiggins claims damages from Dr. Ricciardi for professional negligence and misconduct arising from his involvement as his children’s therapist in the divorce proceeding. In his statement of claim, Mr. Wiggins itemizes 22 different particulars of negligence and misconduct; on this motion, Dr. Ricciardi highlights the following (from para. 16):

(a) he (i.e. Dr. Ricciardi) continued to employ the same therapeutic modality which proved to be completely ineffective during his prior involvement with the family in 2010; (b) he failed to read the 2011 Decision [of Harper J.] and failed to take into account the factual findings which should have informed his services to the family as directed by Justice Harper; (c) he ignored the clear directive/criticism of Justice Harper in the 2011 Decision that the therapists involved with the family, including in particular the Defendant, need to understand the factual background or else they will be ineffective; (d) he ignored the specific treatment goals (resolve the emotional abuse of the children and protect them from further emotional abuse) ordered by Justice Harper in the 2011 Decision; . . . (k) he ignored directions provided to him by Jefferson and Sarah [Mr. Wiggins’ new spouse] and failed to consult with experts in the field of reunification theory even after names of such experts were provided to him; (l) he failed to adequately consider or investigate newer and more effective protocols for the conduct of family reunification therapy, including the “Family Bridges” protocol; . . . (t) he failed to testify in an impartial, fulsome and forthright manner in various court proceedings and thereby misled the Court; . . .

4Also, relevant to this motion is that Dr. Ricciardi pleads in his statement of defence (para. 54) that the two-year limitation period under the Limitations Act, 2002 expired before the plaintiffs issued the statement of claim.

This motion

5Mr. Wiggins’s counsel of record in this action is not Mr. Ludmer. As set out in detail below, Mr. Wiggins’s evidence is that he retained his current lawyer Mr. Bleiwas because Mr. Ludmer suggested that he retain someone with more expertise in general civil matters including professional negligence claims. However, in March 2022, Mr. Bleiwas informed Dr. Ricciardi’s counsel that he had retained Mr. Ludmer to conduct Dr. Ricciardi’s examination for discovery, and he subsequently suggested that Mr. Ludmer may participate more extensively in the action, including at trial.

6Dr. Ricciardi now brings this motion to prohibit Mr. Ludmer from acting for the plaintiffs in this action. Dr. Ricciardi submits that during Mr. Ludmer’s prior retainer in the divorce proceeding, he had such extensive interaction with Dr. Ricciardi in relation to the therapy provided to the Wiggins children that he will inevitably either be a witness, or at least rely on his own personal knowledge, with respect to whether Dr. Ricciardi’s counselling of the children met the applicable standard of care. Dr. Ricciardi also submits that Mr. Ludmer’s frequent interactions with him during the divorce proceeding mean that he knew or ought to have known when any cause of action against him arose, so he may have failed to advise the plaintiffs to commence this action before the expiry of the limitation period, thus placing him in a conflict of interest.

Dr. Ricciardi’s evidence

7Dr. Ricciardi submits that Mr. Ludmer intervened in the therapy that he provided to the Wiggins children and made clinical and therapeutic recommendations during the divorce proceeding. His affidavit of May 27, 2022 includes the following evidence:

• On his website, Mr. Ludmer describes himself has being “skilled in family law, focussing on high conflict divorce, parental alienation and high net worth property and income disputes”, and that he has spoken on parental alienation at numerous events across North America. (Exhibit D)
• “Mr. Ludmer expressed a personal resolve to remedy the Children’s alienation from Mr. Wiggins and intervened with my provision of therapy on numerous occasions over the course of the Underlying Family Law Action.” (para. 11)
• “As early as July 2010, Mr. Ludmer began expressing dissatisfaction with my therapeutic approach. In an email correspondence dated July 21, 2010, Mr. Ludmer directly expressed the view that the therapeutic intervention I had employed was not working. . . .” (para. 12)
• “[I]n and around August 2010, Mr. Ludmer referred to my provision of therapy as a “failed 5-month experiment”. In this email, Mr. Ludmer characterizes the goal of the counselling to be “opening the children’s minds and building their critical thinking skills. . . .” (para.13)
• “Pursuant to a 2013 Court order, Mr. Wiggins was granted full custody of the children. . . . While at Mr. Wiggins’ home for the purposes of advising the children of the change in custody arrangements, I recall Mr. Wiggins passing the phone to me indicating that Mr. Ludmer wanted to speak to me. While discussing the Children’s transfer arrangements with Mr. Ludmer, I recall him expressing to me over the phone that I should “crush” the Children upon the onset of their anticipated outbursts relating to their relocation to Mr. Wiggins’ home.” (paras. 14 and 15)
• “In [correspondence of July 4, 2013], Mr. Ludmer highlights, on behalf of Mr. Wiggins, that the appropriate therapeutic intervention in light of the circumstances would be the “structural family systems” model and refers me to source materials on this approach. Moreover, Mr. Ludmer identifies one of my therapeutic goals as procuring a “mea culpa” from the Children’s mother to assist the Children understand [sic] how they have developed a harmful and distorted view of their father. In addition, Mr. Ludmer relays Mr. Wiggins’s concerns that my therapeutic process has not been informed by the June 2011 decision of Justice Harper.” (para. 16) Dr. Ricciardi states that these concerns are the subject of this action against him as reflected in the particulars of the plaintiffs’ cause of action quoted above. (para. 17)
• “Throughout the course of my involvement in the Underlying Family Law Action, Mr. Ludmer provided suggestions with respect to what he and Mr. Wiggins viewed as the appropriate therapeutic approach to promote the reunification of the Children.” (para.19)
• “Mr. Ludmer’s strong views on parental alienation cases was evident throughout my interactions with him over the course of the Underlying Family Law Action. On various occasions, Mr. Ludmer circulated educational materials about parental alienation to me and other professionals involved in the Children’s care. . . .” (para. 20)
• “In an email dated August 2010 . . . Mr. Ludmer referenced his own “widely-published seminar on alienation” when raising his concerns about what he viewed as Ms. Fiorito’s [Mr. Wiggins’s estranged wife’s] attempts to further alienate the Children from their father. . . .” (para. 21)
• “In an email dated July 5, 2013, Mr. Ludmer provided me with reference materials with respect to child-centred psychotherapies for children of divorce.” (para. 22) This email from Mr. Ludmer includes references to various DSM-V categories including “two important new diagnoses that can also be used by clinical and forensic practitioners in cases involving emotional abuse.” (Exhibit M)
• “On a number of occasions, I directly discussed my therapeutic plan and objectives with Mr. Ludmer. For instance, in an email exchange dated August 12, 2013 . . . Mr. Ludmer indicated that he would like to directly speak with me with respect to my therapeutic plan, as authorized by Mr. Wiggins.” (para. 24)
• “One of the Plaintiffs’ various allegations against me in the present dispute relates to my Therapy Update letter dated October 30, 2015. As Mr. Wiggins’s counsel, Mr. Ludmer actively activated against the issuance of a therapy update.” (para. 25)
• Dr. Ricciardi was examined in court by Mr. Ludmer in the divorce proceeding on three occasions before Justice Harper (July 6, October 3 and November 26, 2012) and at an Access Review Hearing before Justice Hebner (February 1-3, 2016).

Mr. Wiggins’s evidence

8In his affidavit sworn September 30, 2022, Mr. Wiggins’s evidence includes the following (with reference to Dr. Ricciardi’s reply affidavit of October 31, 2022 where context warrants):

• Mr. Ludmer represented him in the divorce proceedings. The court in those proceedings found that the Wiggins children had been victims of emotional abuse and parental alienation by Mr. Wiggins’s ex-wife. Dr. Ricciardi was appointed on the recommendation of the Children’s Aid Society to provide counselling to his children in the context of that action for the purpose of reuniting his children with him. (paras. 3-5)
• (Dr. Ricciardi, in his reply affidavit, states that, based on para. 191(3)(h) of Justice Harper’s judgment, quoted above, “I was tasked with promoting reunification while also addressing the Children’s emotional abuse.”)
• Although Dr. Ricciardi’s retainer letter named Mr. Ludmer as a client, it was in fact the Wiggins children, Mr. Wiggins and his new wife who were Dr. Ricciardi’s clients. (para. 6)
• (Dr. Ricciardi pleads in his statement of defence and deposes in his reply affidavit that he served exclusively as the Wiggins children’s therapist; Mr. Wiggins and his wife were never his clients.)
• Mr. Wiggins was fortunate to have Mr. Ludmer as his lawyer and “I benefited greatly from his knowledge and expertise in relation to parental alienation and the available therapies to combat it.” (para. 7)
• Mr. Wiggins acknowledges that Mr. Ludmer expressed concerns with Dr. Ricciardi’s counselling services both before and after Harper J.’s judgment. He expresses the view that in so doing, Mr. Ludmer was addressing “concerns which I had communicated to him given that the therapy provided by Dr. Ricciardi was not effective and, in my view, was not consistent with the type of therapy he was supposed to be providing.” (para. 11)
• “All of Mr. Ludmer’s communications with Dr. Ricciardi were undertaken in his professional capacity as my lawyer and were relaying my own concerns which I had discussed with Mr. Ludmer as my lawyer, including the significant concern that Dr. Ricciardi was not following the requirements of the Harper Judgment. . . .” (para. 14)
• “The fact that Mr. Ludmer had developed his own views on parental alienation and had expertise in this area of law is part of what made him an effective advocate. Given that the most important issue to me in the Underlying Family Law Action was parental alienation, it would have made no sense for me to retain a lawyer without knowledge of, and passion for, this very issue.” (para.16)
• “As a result of his expertise and his extensive involvement as counsel in the Underlying Family Law Action, Mr. Ludmer has an excellent understanding of the underlying facts and issues raised in this negligence action against Dr. Ricciardi.” (para. 18)
• Mr. Wiggins considered retaining Mr. Ludmer in this action but, as his litigation practice is primarily family law, he suggested that Mr. Wiggins retain someone with more expertise in general civil matters, and particularly with professional negligence claims. Accordingly, he retained Mr. Bleiwas, but “it was always my desire and intention to have Mr. Ludmer assist in some capacity given his knowledge of the file and Dr. Ricciardi’s involvement therein.” (paras. 19-20)
• On reviewing Dr. Ricciardi’s affidavit of documents, based on his knowledge of the file, Mr. Ludmer was able to determine that certain documents were missing, and Dr. Ricciardi produced in excess of 1000 more documents. (paras. 21-22)
• Owing to Mr. Ludmer’s familiarity with the issues and the extensive documentation, Mr. Wiggins decided with Mr. Bleiwas that it would make sense for Mr. Ludmer to conduct Dr. Ricciardi’s examination for discovery.
• Mr. Ricciardi’s counsel subsequently acknowledged on his own initiative that some documents had been overlooked in preparing both the original and the supplementary affidavits of documents and delivered a second supplementary affidavit of documents. (para. 27)
• Mr. Wiggins believes that, owing to his familiarity with the documents and issues, Mr. Ludmer is in the best position to conduct Dr. Ricciardi’s examination, and he would save significant legal fees by Mr. Bleiwas not having to spend time to achieve the same degree of familiarity. (para. 28)
• Mr. Wiggins believes that Dr. Ricciardi is afraid to be examined by Mr. Ludmer again and has brought this motion to delay discoveries and deprive him of his right to the counsel of his choice. (para. 29)
• (In reply, Dr. Ricciardi denies being “afraid” to be examined by Mr. Ludmer, and rather, brings the motion owing to concerns about conflicts that may arise should Mr. Ludmer be involved in the discovery process and potentially at trial. Separate from Dr. Ricciardi’s reply evidence, I note that in para. 29, Mr. Wiggins is expressing an opinion, which is not proper affidavit evidence.)
• Mr. Wiggins is advised by Mr. Bleiwas that there is no need or intention to call Mr. Ludmer as a witness at any point in the proceeding. (para. 30)
• (In reply, Dr. Ricciardi states that “given Mr. Ludmer’s significant involvement in the Underlying Family Law Action and his various interventions during the course of my provision of therapy, I reserve my right to call Mr. Ludmer as a witness at trial in the present action.”)

Case law

9Although the order sought is to prohibit Mr. Ludmer from acting as plaintiffs’ counsel in any future step in this proceeding, the parties agree that the relevant case law is that applicable to motions to remove an opposing lawyer of record. The case law on the issue of when a lawyer should be precluded from acting for a party because they will also be a witness in the same proceeding was summarized thoroughly by Master Glustein (now Justice Glustein) in Mazinani v. Bindoo, 2013 ONSC 4744 (at paras. 60 and 61):

60 I adopt the following principles as the applicable law on a motion to remove a lawyer of record who may be a witness at trial: (i) The court has inherent jurisdiction to remove a lawyer from the record who has a conflict of interest. The inherent jurisdiction "stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction" (MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 ("MacDonald Estate"), at para. 18); (ii) The inherent jurisdiction extends to removing a lawyer who may be a witness in a case in which the lawyer acts as counsel (Ontario Realty Corp v. P. Gabriele & Sons Limited et al, [2006] O.J. No. 4497 ("Ontario Realty"), at para. 16); (iii) The court on a motion to remove a lawyer of record who may be a witness at trial must consider "(a) the maintenance of high standards of the legal profession and the integrity of our system of justice and (b) the right of a litigant to its choice of counsel, which he or she should not be deprived of without good cause" (Ontario Realty, at para. 17, citing MacDonald Estate, at para. 13); (iv) The test to be applied on a motion to remove a lawyer from the record who may be a witness is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the lawyer. This determination is objective, fact-specific and based on an examination of all factors in the case (Karas v. Ontario, 2011 ONSC 5181 (S.C.J. - Mast.) ("Karas") at para. 26; Ontario Realty, at para. 20); (v) The court's concern of a lawyer appearing as a witness is that (i) there may be a conflict of interest between the lawyer and client and (ii) the administration of justice can be impaired by a conflict between the lawyer's obligations of objectivity and detachment which are owed to the court and the lawyer's obligation to his or her client to present evidence in as favourable a light as possible. In Urquhart v. Allen Estate, [1999] O.J. No. 4816 (S.C.J.) ("Urquhart"), Gillese J. (as she then was) held (Urquhart, at paras. 27-28):

When counsel appears as a witness on a contentious matter, it causes two problems. First, it may result in a conflict of interest between counsel and his client. That conflict may be waived by the client, as indeed, was done in this case. The second problem relates to the administration of justice. The dual roles serve to create a conflict between counsel's obligations of objectivity and detachment, which are owed to the court, and his obligations to his client to present evidence in as favourable a light as possible. This is a conflict that cannot be waived by the client as the conflict is between counsel and the court/justice system.

Counsel are independent officers of the court. The trial judge must be able to rely upon plaintiffs' counsel for a high degree of objectivity. The overriding value, in these circumstances, is concern for the proper administration of justice. A distinction must be drawn between the role of counsel as an independent officer of the court and the role of a witness whose objectivity and credibility are subject to challenge. (See also Karas, at para. 27);

(vi) The integrity of a lawyer's role as an advocate is also undermined if the lawyer was a witness to a critical meeting. In Young-Tangjerd v. Official Board of Cavalry United Church, [2006] O.J. No. 2161 ("Young-Tangjerd"), Hockin J. held (Young-Tangjerd, at paras. 6-7):

The material fact on the motion and the fact which raised the possibility that the solicitor might be called as a witness at trial is this. The solicitor was present at a meeting at which the plaintiff was present with members of the defendant church. He was there as a member of the church not as solicitor. The plaintiff alleges that she was dismissed from her employment constructively during the course of the meeting or because of the meeting. The reasons of the motion judge posit that in this circumstance, the solicitor's disqualification is not automatic and that it could be left to another judge by motion (presumably on the eve of trial) to quash his subpoena or to the trial judge to determine whether he could act as trial counsel if he was to be called as a witness.

In my view, the issue is not the lawyer's position as a witness but his position as advocate. I doubt whether any party or a witness may be cross-examined by a lawyer who could cross-examine not on the basis of his brief but on the basis of his participation in the event or transaction cross-examined on. Any question, leading or not, once posed by the lawyer is unfair to the witness and carries with it the appearance of an unsworn offer of the advocate's version of the facts. In addition, questions put in cross-examination by the lawyer witness would create the uneasy feeling in the mind of the plaintiff in this case that the measure of his credibility could be based not on the basis of the evidence but the unsworn declaration of a judicial participant in the proceeding, the defendant's lawyer. It goes without saying that the lawyer cannot compartmentalize his or her mind to exclude actual knowledge of the event. As well, the court should ensure no conflict in the lawyer's duty as advocate and as an officer of the court. For example, what is the lawyer to do if his memory of the event differs from the evidence in-chief he hears from his witnesses. [Italics in original.]

(vii) Rule 4.02(2) of the Rules of Professional Conduct of the Law Society of Upper Canada [now Rule 5.2-1] provides that "Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted"; (viii) The commentary to Rule 4.02(2) [Now Rule 5.2-1] sets out the concern that a lawyer who puts personal beliefs into issue acts contrary to the lawyer's role as an objective advocate and puts the lawyer's credibility at issue. The commentary provides:

"A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer".

(ix) Rules of Professional Conduct are not binding on a court, but are persuasive as an important statement of public policy (MacDonald Estate, at paras. 16 and 18; Karas, at para. 29); (x) Courts should be reluctant to make what may be premature orders preventing lawyers from continuing to act. If the evidence does not necessarily have to come from the lawyer and may be obtained through admissions or documentary productions, a removal order will be premature (Essa (Township) v. Guergis; Membery v. Hill, [1993] O.J. No. 2581 (Div. Ct.) ("Essa"), at para. 43; Lesniowski v. H.B. Group Insurance Management Ltd., [2002] O.J. No. 3194 (S.C.J. - Mast.) ("Lesniowski"), at para. 15); (xi) If there is some doubt or "merely a potential" that a lawyer will be called as a witness at trial, the courts should be more generous in allowing the lawyer to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge (George S. Szeto Investments Ltd. et al v. Ott, [2006] O.J. No. 1174 ("George S. Szeto"), at para. 13); (xii) "In view of the expense of litigation and the enormous waste of time and money and the substantial delay which can result from an order removing solicitors, courts should only do so in clear cases" (Essa, at para. 43); (xiii) " [A] court should be slow to interfere with the litigant's right to choose his or her counsel. ... When a litigant is deprived of the services of a lawyer whom she has chosen, there will be some hardship imposed on her. The imposition of such hardship can only be justified if it is done to prevent the imposition of a more serious injustice. It follows that the removal of counsel should be only to relieve the risk of real mischief and not a mere perception of mischief" (Urquhart, at para. 19); (xiv) Certainty that a lawyer will be called as a witness is not required. Rather, the court must consider the likelihood of the lawyer being called as a witness (Ontario Realty, at para. 33); (xv) "It is not sufficient for a moving party to suggest opposing counsel is a potential witness or allege only that he or she might provide material evidence. Rather, it must be established that there is a real basis to believe counsel can likely, or probably, provide material evidence" (Graham v. Ontario, [2006] O.J. No. 763 (S.C.J.) ("Graham"), at para. 35; Ontario Realty, at paras. 34-35); (xvi) "While courts have acknowledged that the freedom to choose counsel is an important interest to protect, it is not an absolute right. The right to be represented by counsel of choice can be outweighed when the administration of justice would be detrimentally affected" (Karas, at para. 45; George S. Szeto, at para. 21; Urquhart, at paras. 21 and 28); and (xvii) The court should approach a motion to remove a lawyer of record who may be a witness at trial by following a flexible approach and consider each case on its own merits (Essa, at para. 48). . . .

61 Given the above law, the Divisional Court in Essa set out "a variety of factors" to be considered on a motion to remove a lawyer of record who may be a witness at trial. Those factors are (Essa, at para. 48) (quoted verbatim): (i) the stage of the proceedings, (ii) the likelihood that the witness will be called, (iii) the good faith (or otherwise) of the party making the application, (iv) the significance of the evidence to be led, (v) the impact of removing counsel on the party's right to be represented by counsel of choice, (vi) whether trial is by judge or jury, (vii) who will call the witness if, for example, there is a probability counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising, and (viii) the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

[These passages were cited with approval by Ferguson J. in 8657181 Canada Inc. v. Mehdi Au LLP, 2021 ONSC 1295. The portions of these passages in bold italics are my emphasis added.]

Issues on the motion

10Based on the case law, the issues on the motion are:

1. Whether there is a real likelihood that Mr. Ludmer will be called as a witness in this action, or will in effect be an unsworn witness during examination for discovery or cross-examination of Dr. Ricciardi, such that he should be disqualified from acting for the plaintiffs.
2. Whether Mr. Ludmer has a disqualifying conflict of interest arising from the limitation period defence.

Submissions of the defendants

11Dr. Ricciardi’s counsel submits that the pleaded allegations against Dr. Ricciardi, combined with his evidence of his interactions with Mr. Ludmer, mean that if Mr. Ludmer is permitted to conduct his examination for discovery and to cross-examine him at trial, he will be asking questions about events in which he was a participant.

12Specifically, the plaintiffs allege in paras. 16(k) and (l) of the statement of claim that Dr. Ricciardi ignored directions provided to him by Mr. Wiggins and his wife, failed to consult with experts in the field of reunification theory even after names of such experts were provided, and failed to adequately consider newer protocols for the conduct of family reunification therapy. Dr. Ricciardi’s evidence on this motion is that his communications with Mr. Ludmer include the following:

• Mr. Ludmer expressed dissatisfaction with his therapeutic approach describing it as a failed 5 month experiment; (paras. 12 and 13)
• Throughout his involvement in the divorce proceeding, Mr. Ludmer provided suggestions “with respect to what he and Mr. Wiggins viewed as the appropriate therapeutic approach to promote the reunification of the Children.” (para. 19) [emphasis added]
• Mr. Ludmer provided him with educational materials about parental alienation and referred to his own “widely published seminar on alienation”; (paras. 20, 21) [emphasis added]. Mr. Ludmer also directed him to specific DSM-V diagnoses applicable to cases involving emotional abuse. (Exhibit M)
• On a number of occasions, he directly discussed his therapeutic plan and objectives with Mr. Ludmer. (para. 24)

13At both examinations for discovery and at trial, conversations between Mr. Ludmer and Dr. Ricciardi may be in issue, such that Mr. Ludmer may need to testify. Mr. Wiggins’s evidence is that the plaintiffs do not have a need or intention to call Mr. Ludmer to testify, but the interactions between Mr. Ludmer and Dr. Ricciardi are such that Mr. Ludmer’s own evidence may become relevant.

14Counsel submits that it is very likely that Ludmer’s evidence will be required at trial. Based on Ontario Realty, supra, cited in Mazinani, supra, Dr. Ricciardi submits that certainty that a lawyer will be called as a witness is not required to warrant an order for removal or disqualification. What must be established is a real basis to believe counsel can likely, or probably, provide material evidence.

15Dr. Ricciardi also relies on 1298781 Ontario Inc. et al. v. Levine, 2013 ONSC 2894, in which the plaintiffs claimed damages from a former lawyer who defended an action against them for funds owing in relation to a contract for a parking garage restoration. The lawyer, Mr. Levine, withdrew as counsel defending the underlying action and a third lawyer, Mr. Bleta, conducted the trial on behalf of 129 Ontario as defendant. Mr. Bleta then acted for 129 Ontario in the action against Mr. Levine.

16In ordering Mr. Bleta’s removal as counsel for 129 Ontario in the action against Mr. Levine, Master McAfee (now titled Associate Justice McAfee) concluded that Mr. Bleta had significant first-hand knowledge regarding the issues in dispute and stated (at para. 29):

29 Mr. Bleta’s role as an advocate cannot be reconciled with his role as witness. His dual roles will give rise to a conflict and taint his evidence (see George S. Szeto Investments Ltd. at para. 23). Given Mr. Bleta’s involvement in the underlying action, any question posed by him is unfair to a witness and carries with it the appearance of an unsworn offer of the lawyer’s version of the facts. Questions put in cross-examination by Mr. Bleta would create the uneasy feeling that the measure of credibility could be based not on the evidence but the unsworn declaration of Mr. Bleta. Mr. Bleta will be left in a difficult position if his memory of the events differs from the evidence in chief of the plaintiffs’ witnesses (see Karas at para. 48 and George S. Szeto Investments Ltd. at para. 24).

17Dr. Ricciardi submits that, similar to the lawyer Mr. Bleta in 129 Ontario, Mr. Ludmer will be in the position of putting forth his “unsworn offer of the lawyer’s version of the facts” and he should therefore be precluded from acting as Mr. Wiggins’s counsel.

18Counsel also submits that Mr. Ludmer’s involvement is relevant to the limitation period issue because he will have information with respect to Dr. Ricciardi’s conduct that relates to when the plaintiffs knew or ought to have known that they had a cause of action against him. Mr. Ludmer will therefore have evidence to give with respect to the discoverability of the plaintiffs’ cause of action against Dr. Ricciardi and has a potential conflict of interest if he failed to inform the plaintiffs of their cause of action against Dr. Ricciardi in time for them to commence their action within the limitation period.

Submissions of the plaintiffs

19Relying on McDonald Estate v. Martin, supra, the plaintiffs submit that a party’s right to choice of counsel is a fundamental right under our legal system and removal or disqualification of a solicitor is an extreme remedy to be granted only in the clearest of cases. The moving party bears the burden of proof and the responding party is not required to lead evidence.

20The plaintiffs further submit that there must be a real basis to expect that counsel sought to be disqualified will be able to provide material evidence. They rely on the following passage from Graham v. Ontario (2006), 26 C.P.C.(6th) 238, quoted and cited in Mazinani, supra (at para. 60 (xv):

60(xv) It is not sufficient for a moving party to suggest opposing counsel is a potential witness or allege only that he or she might provide material evidence. Rather, it must be established there is a real basis to believe counsel can likely, or probably provide material evidence. [citations omitted]

21The plaintiffs submit that their choice of counsel is for Mr. Ludmer to act as co-counsel with Mr. Bleiwas at examinations for discovery and at trial. Mr. Ludmer was counsel in the divorce proceeding, but the views that he expressed were those of his client Mr. Wiggins. The plaintiffs further submit that Mr. Ludmer is not an expert, and his views as expressed to Dr. Ricciardi would not be relevant to the issue of whether Dr. Ricciardi failed to meet the applicable standard of care. Whether Dr. Ricciardi met his professional obligations will be determined based on the opinion of an expert witness, not on what Mr. Ludmer says.

22Further, if Mr. Ludmer does not dispute what Dr. Ricciardi says happened at meetings at which only the two of them were present, he would not need to give evidence and his disqualification would be premature. As stated in Essa Township, cited in Mazinani, supra, “courts should be reluctant to make what may be premature orders preventing solicitors from continuing to act”. At the very least, the issue should not be decided before examinations for discovery.

23With respect to Mr. Ludmer possibly having a disqualifying conflict of interest based on the possibility that he failed to inform the plaintiffs of a limitation period, Mr. Wiggins’s evidence is that he would waive any such claim, which is a matter between him and Mr. Ludmer.

24Finally, the plaintiffs rely on 1914699 Ontario Ltd. v. Metrolinx, 2021 ONSC 8528 and Lepan v. Lofranco, 2021 ONSC 1757; in both cases, the court dismissed motions to remove opposing lawyers. I note that, although these cases apply the same law as counsel has argued in this case, motions to remove an opposing lawyer turn very much on their particular facts so they are of limited assistance. Further, in Lepan, the court found that the evidence that could be given by the lawyer whose removal was sought could be led from other witnesses; in this case, only Dr. Ricciardi and Mr. Ludmer can give evidence about what transpired during their numerous interactions.

Analysis and decision

25The decision whether to prohibit Mr. Ludmer from acting for the plaintiffs requires a consideration of the factors in Essa Township v. Guergis, supra, as follows:

(i) The stage of the proceedings: This motion is brought before examinations for discovery, so an order prohibiting Mr. Ludmer from acting would not require another lawyer to familiarize themselves with what transpired at examinations.

(ii) The likelihood that the witness will be called: Mr. Wiggins’s evidence is that he is advised by his counsel Mr. Bleiwas that there is no need or intention to call Mr. Ludmer as a witness at any point in the proceeding. Dr. Ricciardi’s evidence is that, based on Mr. Ludmer’s involvement in Mr. Wiggins’s divorce proceeding, and “his various interventions during the course of my provision of therapy”, he reserves his right to call Mr. Ludmer as a witness at trial. Based on my review of the evidence, it is unlikely that Dr. Ricciardi would call Mr. Ludmer, given his criticism of Dr. Ricciardi, but that is a decision for Dr. Ricciardi and his counsel.

However, the issue is not solely whether Mr. Ludmer would be called as a witness but also whether, based on his numerous communications with Dr. Ricciardi, he would be putting his own knowledge of those communications in issue. The possibility of harm arising from Mr. Ludmer’s involvement is that, in conducting an examination for discovery or a cross-examination at trial of Dr. Ricciardi, his questioning will imply “the appearance of an unsworn offer of the lawyer’s version of the facts” (see 1298781 Ontario Inc. et al. v. Levine, supra). I will address this in more detail below.

(iii) The good faith (or otherwise) of the party making the application (i.e. the motion for removal): The motion was brought promptly after Dr. Ricciardi learned that Mr. Ludmer and not Mr. Bleiwas would be conducting examinations for discovery. Dr. Ricciardi’s objections to Mr. Ludmer’s involvement as counsel are not frivolous. There is no evidence that the motion is being brought in bad faith.

(iv) The significance of the evidence to be led: As indicated under item (ii) above, it is unclear whether evidence would be led from Mr. Ludmer by either the plaintiffs or the defendant. Dr. Ricciardi’s point is that Mr. Ludmer would be examining or cross-examining him on communications to which he was a party. These communications relate to Mr. Wiggins’s allegations that Dr. Ricciardi used ineffective treatment modalities, failed to consider or investigate newer and more effective protocols, and failed to consult experts in the field of reunification theory even after names were given to him. These communications relate directly to the issues in pleadings.

(v) The impact of removing counsel on the party’s right to be represented by counsel of choice: Mr. Ludmer represented Mr. Wiggins for many years in his divorce proceeding. Given the complexity of that proceeding, I accept that Mr. Ludmer’s detailed knowledge of that file would benefit Mr. Wiggins in this action. It would be more efficient for Mr. Ludmer to conduct Dr. Ricciardi’s examination than for Mr. Bleiwas to spend the additional time required to prepare for and conduct it.

However, if Mr. Ludmer were prohibited from acting, Mr. Bleiwas, who commenced the action against Dr. Ricciardi and continues to act, will still be able to have Mr. Ludmer assist him. There is no evidence that Mr. Wiggins intended to have Mr. Ludmer completely assume carriage of the matter, so both lawyers would continue to be involved regardless of whether Mr. Ludmer is prohibited from acting as counsel at examinations or at trial. Mr. Wiggins would still have the benefit both of representation by Mr. Bleiwas, whom he retained to commence this action, and the assistance of Dr. Ricciardi in preparing the case for both examinations for discovery and trial. Any hardship to Mr. Wiggins that would arise from an order prohibiting Mr. Ludmer from acting is mitigated by the fact that he already has another lawyer who would continue to be involved in any event.

(vi) Whether the trial is by judge or jury: Dr. Ricciardi’s counsel acknowledges that the fact that the trial would be by judge alone would weigh in favour of not disqualifying Mr. Ludmer.

(vii) Who will call the witness: As indicated above, Mr. Wiggins does not currently have any intention to call Mr. Ludmer and Dr. Ricciardi simply reserves the right to call him. Once again, the more compelling challenge to Mr. Ludmer’s participation is based on the concern that Mr. Ludmer, a witness to various events and communications, would be asking questions of another witness, Dr. Ricciardi.

(viii) The connection or relationship between counsel, the prospective witness and the parties involved in the litigation: To reiterate, the problematic connection is between Mr. Ludmer, the plaintiffs’ prospective counsel, and Dr. Ricciardi, the defendant, as participants in various communications that are relevant to issues in the action.

26As summarized above, Mr. Wiggins’s statement of claim includes allegations that Dr. Ricciardi:

• continued to use a therapeutic modality which proved to be ineffective during his involvement with the family in 2010;
• ignored directions provided to him by the plaintiffs Jefferson Wiggins and Sarah Wiggins and failed to consult with experts in the field of reunification theory even after names of such experts were provided to him;
• failed to adequately consider or investigate newer and more effective protocols for the conduct of family reunification therapy.

27Based on these allegations, the nature and quality of the therapy provided by Dr. Ricciardi are very much in issue in the action.

28Dr. Ricciardi’s affidavit (paras. 11-25), to which Mr. Ludmer has not filed any responding affidavit, reflects frequent interactions with Mr. Ludmer, including evidence that Mr. Ludmer intervened in and expressed dissatisfaction with his therapeutic approach, to the point of directing him to various literature (including his own seminar) addressing the issue of parental alienation, and also to DSM-V diagnoses.

29I accept Dr. Ricciardi’s submission in his factum that “the allegations against Dr. Ricciardi, particularly his failure to develop a suitable therapeutic plan, consider alternative protocols and consult experts, will require a close examination of the history of Dr. Ricciardi’s interactions, as Mr. Ludmer was ultimately overseeing the provision of Dr. Ricciardi’s therapy on Mr. Wiggins’ behalf.” It is difficult to imagine how Mr. Ludmer could conduct an examination for discovery of Dr. Ricciardi without touching on the substance of their communications, for example those in which he provided Dr. Ricciardi with materials about parental alienation and the names of experts in the field of reunification theory. So, even accepting that Mr. Ludmer may not be called to testify as a witness, it seems inevitable that, through his questioning of Dr. Ricciardi, he would put his own knowledge of the case in issue.

30The plaintiffs submit that Mr. Ludmer is not an expert and his views as expressed to Dr. Ricciardi are not relevant to the issues in this action. Although Mr. Ludmer is not a psychologist, his own website, his messages to Dr. Ricciardi and others circulating reference materials about parental alienation and child-centred psychotherapies, and his comments about the counselling provided by Dr. Ricciardi, indicate that he represents himself as having expertise in the type of counselling that would be appropriate for children in a divorce case with parental alienation issues. Also, for someone who, for the purpose of this motion purports not to be an expert, Mr. Ludmer certainly did not hesitate to comment on how Dr. Ricciardi, a psychologist, was doing his job.

31If Mr. Ludmer were to conduct an examination for discovery of Dr. Ricciardi, with whom he had extensive interactions during the divorce action that ultimately led to this action, he would have to ask him questions about information and communications received from Mr. Wiggins, many of which were communicated through Mr. Ludmer himself. Mr. Ludmer would then have to tiptoe through a minefield where he would inevitably be drawing on his personal knowledge of his communications with Dr. Ricciardi, putting him in the untenable position of relying on his own knowledge, not just of the underlying divorce proceeding, but of communications that constitute crucial evidence in the action against Dr. Ricciardi.

32As stated by Hockin J. in Young-Tangjerd v. Official Board of Cavalry United Church, cited in Mazinani, supra: “I doubt whether any party or a witness may be cross-examined by a lawyer who could cross-examine not on the basis of his brief but on the basis of his participation in the event or transaction cross-examined on. Any question, leading or not, once posed by the lawyer is unfair to the witness and carries with it the appearance of an unsworn offer of the advocate's version of the facts.” The court cannot condone this.

33I fully acknowledge the right of litigants to their choice of counsel, which they should not be deprived of without good cause (see: MacDonald Estate, supra). However, for the reasons set out above, I conclude that Mr. Ludmer must be prohibited from acting for the plaintiffs in their action against Dr. Ricciardi and I so order.

34Dr. Ricciardi also raises a possible conflict of interest on the part of Mr. Ludmer arising from his pleading that the Wiggins claim is barred by the Limitations Act, 2002, S.O. 2002, c. 24. However, Mr. Wiggins deposes in his affidavit (para. 32) that “While I certainly do not agree that the limitation period expired, I have no intention of ever commencing an action against Mr. Ludmer even if it did.” By making this statement, Mr. Wiggins has waived any conflict. I would therefore not prohibit Mr. Ludmer from acting for the plaintiffs based on a conflict of interest arising from the possible expiry of the limitation period before the action was commenced.

Costs

35Based on the costs outlines filed, counsel agree that the costs of the motion should be awarded to the successful party fixed at $14,000.00. As the defendant Dr. Ricciardi was successful on the motion, the plaintiffs shall pay to him the costs of the motion fixed at $14,000.00. As there may be other interlocutory motions that result in awards of costs, I would suggest that the parties agree that these costs be paid in any event of the cause. However, if counsel cannot agree to this, they may arrange to speak to the matter by way of a case conference.