SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOAN SYPHUS, CLEMISFORD SYPHUS, IAN BICKERTON, BY HIS LITIGATION GUARDIAN, DAVID BICKERTON, AND JOHN DOE #1-500, Plaintiffs
AND:
2748204 ONTARIO INC. O/A FLEX HOME LOANS, 2758729 ONTARIO INC. O/A COMPLETE HOME COMFORT, MICHAEL YOSHER, SHALBY INVESTMENTS INC., ALBERT KSHOZNICER, BARBARA KSHOZNICER, STEPHEN PRICE AND ASSOCIATES, NITASHA AZHAR MALIK, AND JOHN DOE #501-1000, Defendants
BEFORE: Schabas J.
COUNSEL: David Sterns, Ida Morra Caruso and Adil Abdulla, for the Plaintiffs
Solomon Fischhoff, for the Defendants 2748204 Ontario Inc. O/A Flex Home Loans, Michael Yosher, Shalby Investment Inc., Albert Kshoznicer and Barbara Kshoznicer
Andrea Vitopoulos, for the Defendant Stephen Price and Associates
HEARD: February 12, 2026
reasons on motion to remove counsel
Overview
1On January 9, 2026, shortly after this action was commenced, I granted injunctive relief prohibiting the defendants from taking any mortgage enforcement steps against the plaintiffs.
2On January 23, 2026, I continued the injunction and made further orders, including restraining the enforcement of any mortgage agreement to which the defendant 2748204 Ontario Inc., O/A Flex Home Loans (“FHL”) is or was a party that was originated by the defendant 2758729 Ontario Inc. O/A Complete Home Comfort (“CHC”), without leave of the court obtained on at least 21 days notice. I also ordered that FHL or its assignee, if taking any enforcement action, notify the mortgagor that they may contact the Advocacy Centre for the Elderly and Pro Bono Ontario for information and to discuss arrangements for legal representation if they cannot afford to hire a lawyer.
3On January 23, 2026, some of the defendants appeared through counsel, Mr. Fischhoff, who filed a large responding record. This caused the plaintiffs to request an adjournment of the balance of their motion for injunctive relief so that, among other things, the plaintiffs could file materials in reply. Mr. Fischhoff advised that he acted for FHL and its principal, Michael Yosher, and for Shalby Investments Inc. and its principals, Albert Kshoznicer and Barbara Kshoznicer, to whom FHL had assigned the plaintiffs’ mortgages. No one has appeared for CHC, or the defendant, Nitisha Malik, a paralegal in Mr. Price’s office who is alleged to have assisted CHC in fraudulent transactions.
4Also on January 23, 2026, counsel for the plaintiffs raised an issue respecting the role of Mr. Fischhoff. They wish to cross-examine him based on assertions about his conduct made in the responding materials filed by Mr. Fischhoff which, it is submitted, makes Mr. Fischhoff a material witness. Counsel for the plaintiffs also took the position that Mr. Fischhoff could no longer be counsel on the matter. Mr. Fischhoff advised that he would consult counsel regarding his continued role. I set a schedule for delivery of additional materials and cross-examinations on the injunction motion and adjourned the matter to a case conference on February 9, 2025.
5Subsequently, I received correspondence from the plaintiffs that Mr Fischhoff wished to cross-examine the plaintiff, Joan Syphus, to which plaintiffs’ counsel objected, offering alternatives such as cross-examination by different counsel or cross-examination in writing. I directed that there be no cross-examination of Ms. Syphus by Mr. Fischhoff unless and until permitted by me and, after hearing from Mr. Fischhoff, I directed that this issue be addressed at the case conference on February 9, 2026.
6By February 9, 2026, I had received the plaintiffs’ reply materials, and case conference briefs from both sides addressing whether Mr. Fischhoff can continue to represent his clients. This matter could not be adequately addressed at the case conference on February 9, and so I convened court to hear the motion to have Mr. Fischhoff removed as counsel on February 12, 2026. I also permitted Mr. Fischhoff to bring a motion to have Mr. Sterns and Ms. Morra-Caruso removed as counsel for the plaintiffs.
7For the reasons that follow, I find that Mr. Fischhoff cannot continue to act as counsel on this matter. I dismiss Mr. Fischhoff’s motion to remove counsel for the plaintiffs.
Nature of the action
8Briefly stated, this action involves claims by the plaintiffs, who are elderly and/or vulnerable, of fraud against the defendants. In short, the allegation is that people purporting to represent CHC and FHL engaged in aggressive door-to-door sales tactics persuading the plaintiffs, and others, to purchase home renovation and repair services from CHC which were never provided, and to have the victims sign agreements that led to mortgages being registered by FHL against their properties without their knowledge or consent. FHL would then assign the mortgages to others, including the defendants, Shalby Investments Inc., Albert Kshoznicer and Barbara Kshoznicer.
9FHL, on behalf of the assignee would then, sometime later, perhaps years later, assert that the mortgage was in default and commence power of sale proceedings to force the homeowners to pay them rather than lose their homes.
10It is alleged in the statement of claim that the conduct of the defendants is part of a large-scale fraud scheme, which is why the action is brought on behalf of the named plaintiffs and “John Doe #1 - 500” who are said to be victims not yet identified. As pleaded in the statement of claim, FHL and CHC, and their principals, have been the subject of regulatory and criminal proceedings arising from their mortgage-related activities, and lawyers and paralegals involved in these activities have been subject to investigation and prosecution by the Law Society of Ontario.
Facts giving rise to the motion
The factual dispute between the Syphuses and Mr. Fischhoff
11The issue of Mr. Fischhoff’s continued role as counsel arises, most directly, from the affidavit of the defendant, Mr. Yosher, the principal of FHL, who states in his responding affidavit that a lengthy conversation took place between Mr. Fischhoff and the plaintiffs, Joan and Clemisford Syphus, in November 2022. Ms. Syphus is 78 and her husband is 83. She is a retired personal support worker and he is a retired mechanic. Mr. Syphus is unwell and was recently hospitalized. They live on a modest fixed income from retirement benefits. They have lived in their home since about 1984 and paid off their original mortgage in 2002.
12Mr. Yosher’s evidence, which presumably comes from Mr. Fischhoff, challenges the statement made in Ms. Syphus’s initial affidavit that she only became aware of any FHL mortgage on her home when she received correspondence from Mr. Fischhoff in November 2025, informing her of power of sale proceedings and that they owed a total of $37,747.31 which had to be paid by December 23, 2025 or her house would be sold to pay the debt.
13In Mr. Yosher’s responding affidavit he provides details of the services the Syphuses were said to have purchased from CHC in September 2020, and he attaches various documents. Mr. Yosher also refers to a video recording of the Syphuses apparently acknowledging that they were borrowing funds from FHL and that a mortgage would be registered. Mr. Yosher states that upon receiving confirmation that CHC had delivered “goods and services” to the Syphuses, FHL paid CHC and registered a mortgage on the property, which FHL, soon after, sold to the Kshoznicers.
14Mr. Yosher asserts that the Syphuses made payments on the mortgage until September 2022, but attaches no evidence of them. Mr. Yosher does not state who, if anyone, informed him of the facts I have outlined above, and in particular who informed him of the dealings between the Syphuses and CHC. Mr. Yosher then states, without identifying the source of his information, as follows:
In or about November 2022, I am advised that Mr. Fischhoff spoke at length with the Syphuses regarding the mortgage.
15Mr. Yosher attaches correspondence between Mr. Fischhoff and a lawyer acting for the Syphuses, John Wenus, exchanged in December 2022. In that correspondence, Mr. Wenus disputes the assertion that his clients ever entered into any mortgage of their property in 2020 – a mortgage he appears to have found on title registered by Mr. Fischhoff.
16Mr. Fischhoff asserts that the Syphuses contacted him in late November 2022 following receipt of a Notice of Sale from him. Mr. Fischhoff wrote to Mr. Wenus that he “reviewed the facts of the matter with both in some detail” and that he also “played for them multiple recordings of telephone calls between Mr. Syphus and the representatives of Flex Home Loans.”
17Mr Wenus responded, acknowledging that the Syphuses had spoken to Mr. Fischhoff but denied signing any loans or making any payments. Mr. Wenus sought details of the “purported mortgage documents.” He also explained that his clients’ recollection of signing any documents related to an “itinerant salesman” persuading them that they could save money on their Enbridge account.
18Although Mr. Fischhoff then provided documents purportedly signed by the Syphuses and which name FHL, he did not send Mr. Wenus the recordings. The documents attached to Mr. Fischhoff’s letter do not include the mortgage documents but are documents on FHL stationery which state that CHC will provide certain renovation and insulation services valued at $24,000 – which is most of the Syphuses’ annual income. Despite this, the document says that the total amount being financed is $30,999.85.
19In her Reply Affidavit, Ms. Syphus states that neither she nor her husband ever spoke to Mr. Fischhoff. She states that they were introduced to Mr. Wenus by members of their church who was helping people with the sham rebate program related to Enbridge accounts. Ms. Syphus states that she and her husband did not see Mr. Wenus’ letters before or after they were sent, nor were they aware of, or discuss, any mortgage with Mr. Wenus.
20It appears that Mr. Wenus is no longer practising law.
21Ms. Syphus also states that she and her husband have now listened to audio recordings produced by Mr. Yosher. She disputes them as well, noting that the person purporting to be her husband provides single word responses of “yes” and “no”, which she states is not how her husband normally speaks. There is also a reference in the recordings to doing work on an attic, but the Syphuses do not have an attic. A similar reference to an “attic” is found in the documents produced by Mr. Yosher. Those documents describe the work to be done in very similar language to that found in other cases involving CHC and FHL, such as in Robins, discussed below.
22According to Mr. Yosher’s affidavit, following the correspondence between Mr. Fischhoff and Mr. Wenus, the Syphuses “brought the mortgage into good standing”, but Mr. Yosher provides no details or the source of his belief.
Mr Fischhoff’s role in other cases
23Counsel for the plaintiffs have pleaded that the conduct complained of is part of a broader fraudulent scheme perpetrated by the defendants. This is supported by evidence from a law clerk in Ms. Morra Caruso’s office, Julie Patterson, who has conducted extensive investigations into FHL and CHC. This includes identifying many mortgage arrangements similar to those affecting the plaintiffs in this action. The mortgages are for relatively modest amounts when compared to the value of the homes, usually $30,999.85, and no higher than $45,000, said to be debts for paying CHC for services allegedly provided. The mortgages have high interest rates but often payments deferred for at least 15 months. Almost all mortgages have also been assigned without notice to the homeowner within a short period of time, often at a discount.
24Mr. Yosher’s affidavit complains about the mention of other mortgages, asserting that it is highly prejudicial when, according to him, many mortgages arising from similar circumstances have been paid, settled or discharged. At the same time, however, he acknowledges litigation and investigations involving FHL. Mr. Yosher now asserts that he, FHL and the assignees are victims of fraud by CHC “in conjunction with the mortgagors” - such as the Syphuses, presumably.
25There are many proceedings involving Mr. Yosher arising from similar mortgages involving FHL and CHC. Mr. Fischhoff is counsel for Mr. Yosher and FHL on those cases. In several of them, Mr. Fischhoff has, on behalf of his clients, brought counterclaims against the lawyers acting for the plaintiffs. Some of those counterclaims have been struck out as an abuse of process and not, as Mr. Fischhoff asserted in argument, on grounds of prematurity.
26In Robins v. 2758729 Ontario Inc. et al., 2023 ONSC 4367, for example, which dealt with four different actions against Mr. Yosher, FHL and others, the allegations were very similar to the events claimed here. As Heeney J. summarized, at paras. 8 and 9:
The Robins action typifies the claims made in each action. The plaintiffs claim that they are the victims of a “province-wide scam”, whereby door-to-door salesmen came to their residence and, through the use of high pressure sales tactics, induced the plaintiffs to sign a purchase agreement, whereby Complete Home Comfort would provide a list of goods and services, including “whole home air sealing”, “whole home infestation treatment”, “home energy optimizer”, “whole home disinfection treatment”, “whole home EMF neutralizer devices”, “whole home water sewer clean up treatment”, and “whole roof leaf guard protection”.
The plaintiffs also claim that they were induced to sign a “mortgage commitment”, as a result of which a mortgage was ultimately registered against their home. This mortgage was in the amount of $45,000, even though the amount supposedly to be advanced under the mortgage was only $28,000, and would require the plaintiffs to pay the total amount of over $86,000 over five years.
They further claim that almost none of the promised services were ever provided, and the products that were supplied were useless.
27FHL and Mr. Yosher, through Mr. Fischhoff, counterclaimed against the lawyers alleging a range of wrongdoing, including conspiracy, champerty and maintenance, and invasion of privacy, among other things. These claims were found to be “untenable” and struck out by Heeney J., without leave to amend.
28In Batstone et al v. 2758729 Ontario Inc. et al., 2025 ONSC 6394, Latimer J. noted that the case before him was one of “many ongoing actions in Ontario of a similar nature.” He criticized what he described as “dilatory tactics” by the defendants, represented by Mr. Fischhoff, which, “given the vulnerable nature of the plaintiffs involved”, he considered to be “an access to justice issue.” Relying on Heeney J.’s ruling in Robins, Latimer J. found the similar counterclaim brought against the plaintiffs’ lawyers to be an “abuse of process.” (paras. 6, 29 and 20)
Mr. Fischhoff’s complaints about Mr. Sterns and Ms. Morra Caruso
29In his Notice of Motion, Mr. Fischhoff asserts that Mr. Sterns and Ms. Morra-Caruso should be removed as counsel as the plaintiffs “have put the credibility of their own counsel in issue” and “counsel could be cross-examining these defendants on the lawyer’s own participation.” The Notice of Motion goes on to suggest that plaintiffs’ counsel may “knowingly allow false or misleading evidence to be presented to the court” and alleges “personal animus.” Many of these assertions were not pursued before me.
30Regarding Mr. Sterns, who has been retained to handle the litigation, Mr. Fischhoff’s argument before me relied on a paragraph of Ms. Patterson’s supplementary affidavit sworn January 13, 2026, in which she states that she was advised by Mr. Sterns that the Syphuses did not make any payments to FHL. However, Mr. Fischhoff notes that at the case conference on January 23, 2026, Mr. Sterns stated that he had not spoken to the Syphuses.
31Against Ms. Morra Caruso, Mr. Fischhoff questions why the lengthy affidavits about the broader fraud come from Ms. Patterson, a law clerk in Ms. Morra Caruso’s office, and not Ms. Morra Caruso herself. Mr. Fischhoff points to paragraph 5 of the affidavit in which Ms. Patterson says that “[t]hrough litigation searches with the same or similar defendants, we discovered a province-wide Notice of Security Interest ("NOSI") and mortgage fraud scheme targeting vulnerable homeowners (the "Scheme").” The reference to “we”, Mr. Fischhoff submits, must be to Ms. Morra Caruso who, he argues, is being inappropriately shielded from cross-examination by Ms. Patterson’s affidavit.
The test for removing counsel
32Courts should be reluctant to remove counsel of record, as doing so deprives clients of their counsel of choice. Removal should not be ordered without good cause, assessed reasonably, having regard to all the circumstances including whether the motion to remove counsel was brought promptly, the degree of prejudice that will be suffered by the client, and the integrity of the administration of justice: Bose v. Bangiya Parishad Toronto, 2018 ONSC 7639 at paras. 84 – 94, citing, among other cases, MacDonald Estate v. Martin, 1990 32 (SCC) and Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39.
33One ground for removal is when counsel will be a material witness. This puts the lawyer in a conflict of interest “because as an advocate, he or she has a duty to the administration of justice to be objective and detached from the client’s litigation which duty could conflict with the advocate’s duty to present the client’s case in as favourable a light as possible”: Bose at para. 97, citing Urquhart v. Allen Estate, [1999] O.J. No. 4816 at paras. 27-28 (S.C.J.).
34Perell J. summarized the law in Bose at paras. 98 and 99:
If it is clear from the outset of a proceeding or if it becomes clear during the proceeding that the advocate will be a material witness, he or she should be disqualified and removed as lawyer of record. The disqualification arises even if counsel does not intend to testify because his or her involvement in the matter based on participation and actual knowledge of the events rather than based on just taking instructions from his client creates a conflict between his or her duty to the court and his or her duty to the client.
If there is only a potential that the advocate will have substantive evidence and be a witness for his or her client, then on a motion to have the lawyer disqualified, the court considers a number of factors in determining whether to disqualify the lawyer including: (a) how likely the lawyer will be a witness; (b) the materiality and significance of the lawyer’s evidence; (c) the likelihood of a real conflict or that the evidence will be tainted; (d) the stage of the proceedings; (e) the timeliness of the motion; (f) the impact of removal of counsel on his or her client’s right to be represented by counsel of choice; and (g) the good faith of the party making the application; (h) the mode of trial, whether judge alone or judge and jury; (i) who will call the counsel as witness; and (j) the current and past relationship between counsel and the parties involved in the litigation. [Footnotes omitted]
35A material witness is one who is required to give evidence to prove or disprove a disputed fact that is in issue in the litgation: R. v. Vassel, 2018 ONCA 721 at para. 83; R. v. Luciano, 2011 ONCA 89 at para. 207.
Mr. Fischhoff’s removal
36In this case it is a disputed fact whether Mr. Fischoff had a conversation with Ms. Syphus about the FHL mortgage in 2022. This relates to the highly disputed fact of whether Mr. and Ms. Syphus were aware of the FHL mortgage at any time prior to November 2025. Mr. Fischhoff is clearly a material witness on this issue. As has been noted, a lawyer should be disqualified when they are a “witness to a critical meeting”: Manzani v. Bindoo, 2013 ONSC 4744 at paras. 60(vi), 77 – 89. Further, should Mr. Fischhoff remain as counsel he would be cross-examining Ms. Syphus on his own communications with her, “not on the basis of his brief but on the basis of his participation in the event or transaction cross-examined on”: Young-Tangjerd v. The Official Board of Calvary United Church, 2006 17946 (ON SC), [2006] O.J. No. 2161 (S.C.J.) at para.7; Forsyth v Blue Rock Wealth Management Inc., 2015 ONSC 6666 at paras. 47 -50.
37Mr. Fischhoff’s status as a material witness is not tentative or speculative. He relies on what he says was his lengthy conversation with the Syphuses to support his motion to set aside the injunction, alleging material non-disclosure. The issue arises now, and the removal motion is not in any way premature. The motion to remove Mr. Fischhoff is brought in good faith and is well-founded. As discussed below, this contrasts with Mr. Fischhoff’s responding motion to remove counsel for the plaintiffs.
38Further, Mr. Fischhoff wishes to cross-examine Ms. Syphus himself, again a matter that needs to be addressed now. Mr. Fischhoff’s insistence on cross-examining Ms. Syphus demonstrates a lack of appreciation of his role as counsel and raises concerns about the administration of justice and the fairness and integrity of the process. To permit Mr. Fischhoff to cross-examine a plaintiff on critical facts involving himself would be unfair to Ms. Syphus and taint the cross-examination itself.
39The removal of Mr. Fischhoff may create some prejudice for his clients; however, aside from the denial of counsel of choice, there is no evidence of prejudice, and it would be, in any event, limited, as the litigation is at an early stage. Mr. Fischhoff’s role as a solicitor involved in drafting and registering documents and taking procedural steps to enforce the alleged mortgage, including issuing a notice of sale and allegedly speaking to the Syphuses, is easily separated from the role of a barrister handling the litigation itself. There is no suggestion that FHL and Mr. Yosher cannot find and retain competent counsel to represent them. Indeed, at the February 9 case conference, Mr. Fischhoff had counsel present.
40In my view, solely on the basis of the dispute with the Syphuses, I find that Mr. Fischhoff is a material witness and cannot continue as counsel.
41Although not necessary for my decision, I also have concerns that other issues relating to Mr. Fischhoff’s role in the actions of the defendants will arise in the litigation. Mr. Fischhoff appears to be deeply involved in FHL’s activities, enforcing mortgages, obtaining recordings from FHL or CHC, drafting and registering mortgages for his clients, and taking positions for FHL and Yosher in litigation that are untenable and that have been found to be an abuse of process. Mr. Fischhoff is likely to be a material witness on other issues.
Mr. Sterns and Ms. Morra Caruso
42The motion to remove Mr. Sterns and Ms. Morra Caruso has no merit.
43The assertion that Ms. Patterson is a cypher for Ms. Morra Caruso is inconsistent with the evidence.
44Ms. Patterson’s affidavits are substantial. The first is over 20 pages, the second 10 pages, and the third is seven pages. She attaches many documents as exhibits. Ms. Patterson deposes that she has been a law clerk since 2004 “supporting in real estate, corporate/commercial, wills and estates, and family law.” Her affidavits largely describe her own work, not that of others, as she speaks in the first person. For example, at para. 8 she states as follows:
I have spoken to numerous victims and have spent thousands of hours open source searching, noting patterns, ruses at the door, parties working together, performing corporate searches, parcel and instrument review, mortgage document review and synopsis preparation, in relation to this Scheme and making the information available to the governing bodies, provincial government, law enforcement and lawyers defending the titles of other victims of this Scheme, who were discovered through litigation searches.
45Similarly, in para. 10 she states:
I have reviewed more than one hundred parcel registers and instruments of homes belonging to alleged victims of the Scheme and do verily believe that on every parcel register I have reviewed, except one, the first instrument associated with the Scheme, is a NOSI or lodgment registered by Home Trust Company ("Home Trust"). Attached hereto as Exhibit "A" are a few of the parcels I have reviewed in relation to this Scheme, that all have at least one Home Trust registration.
46Ms. Patterson provides her own views on how the “scheme” works. She also refers to being informed by homeowners directly of their experiences with the sales tactics allegedly used by CHC and FHL, and she describes her own requests made to Mr. Yosher and Mr. Fischhoff for information which have been rebuffed. It is very clear from Ms. Patterson’s affidavit that she is giving her own, direct evidence, of her knowledge of the facts – her investigations, her review of documents, her discussions with others and her findings, not those of anyone else. One use in one of her affidavits of the word “we”, which is undefined, does not change this conclusion.
47This is not a situation, as asserted by Mr. Fischhoff, in which a lawyer or law clerk is improperly advancing information “in circumstances where the client could and should have set out the facts”: Farooq v. Hawkins, 2018 ONSC 4841 at para. 18. Ms. Patterson is giving her own information from her investigation, stating facts which are not known to the clients who are elderly and infirm. In short, there is no basis whatsoever for Mr. Fischhoff’s argument that Ms. Patterson’s affidavit is improperly shielding Ms. Morra Caruso from cross-examination.
48As for the complaint about Ms. Patterson being informed by Mr. Sterns that the Syphuses did not make any payments to FHL, this is made in the context of Ms. Patterson discussing the plaintiff Mr. Bickerton’s situation and her responses to assertions made in correspondence written by Mr. Fischhoff. Ms. Patterson responds, rather than Mr. Bickerton, as he is elderly and suffered a severe stroke in 2019, two years before FHL registered a mortgage on his home. Mr. Bickerton can no longer make decisions for himself.
49The information attributed to Mr. Sterns is simply narrative. Ms. Syphus has addressed the fact of not making any payments in her own evidence and can be cross-examined on it. Mr. Sterns simply conveyed to Ms. Patterson information about the case which is pleaded and is derived from the client who, paraphrasing Farooq, has set out the facts and can and will be cross-examined on them. Mr. Sterns’ evidence would, in any event, be inadmissible as hearsay. This stands in stark contrast to Mr. Fischhoff’s evidence, which is about his own alleged conversation with Ms. Syphus, a conversation she says did not happen.
50Further, the fact that Mr. Sterns may not have spoken to the Syphuses is of no importance. The transcript of January 23, 2026 reveals that, in the context of responding to Mr. Yosher’s affidavit, Mr. Sterns said he had not spoken to his clients, but that his associate had done so.
51Accordingly, the motion to remove Mr. Sterns and Ms. Morra Caruso is dismissed.
Next steps
52Mr. Fischhoff’s clients should be given some time to retain new counsel, but they must move promptly. Counsel should contact my assistant to arrange a further case conference during the week of March 2, 2026.
Paul B. Schabas J.
Date: February 19, 2026