CITATION: Sharma v. Sharma et al., 2026 ONSC 1712

COURT FILE NO.: CV-20-00003510-0000

DATE: 2026 03 23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RAKESH KUMAR SHARMA, and VIDIT SHARMA, and SHREYAS SHARMA in their capacity as ESTATE TRUSTEES FOR THE ESTATE OF KULDIP RANI SHARMA

Plaintiffs

and -

THE ESTATE OF KULDIP RANI SHARMA, deceased, MUKHESH SHARMA, JEEVAN KUMAR SHARMA and AVNEET SHARMA and AMIT SHARMA in their capacity as ESTATE TRUSTREES FOR THE ESTATE OF KULDIP RANI SHARMA

Defendants

R. Kaushal, and G. Sangha for the Plaintiffs

D. Bhatia, for the Defendants

HEARD: February 23^rd, 2026

REASONS FOR JUDGMENT

LEMAY J

1This is a dispute between three brothers, Rakesh, Mukesh and Jeevan Sharma over the affairs of their mother, Kuldip Sharma. Given that everyone in the dispute shares a last name, I will refer to the parties by their first names. No disrespect is intended by this. The discrete issue before the Court on this motion is whether Mr. Dheeraj Bhatia, and his firm, Madamser Law, can act for Mukesh, Jeevan and their children in the underlying dispute.

2The underlying dispute arises over who had the authority to act for Kuldip in the management of her affairs and whether they exercised that authority properly. In 2015, Kuldip was experiencing some cognitive decline. She signed some Powers of Attorney (for personal care and for finances) that put her three sons jointly in charge of her affairs.

3Between 2015 and 2019, Rakesh was responsible for managing most of Kuldip’s affairs. Kuldip suffered from dementia and ended up in a Long-Term Care home. She had a condominium (“the Knightsbridge property”) which was rented out, and the rent was used to pay the costs of her long-term care.

4In 2019, Jeevan and Mukesh took steps to sell the Knightsbridge property. Those steps included having a notice under section 71 of the Land Titles Act registered against the condominium. That notice indicated that Jeevan and Mukesh had a beneficial interest in the property. They then subsequently sold the property. The lawyer who acted for Jeevan and Mukesh on both the section 71 notice and the sale of the condominium was Mr. Bhatia.

5There were additional impugned transactions in 2021, involving both a further POA and a Will. Mr. Bhatia acted on both of those transactions as well.

6The Applicant/Plaintiffs, who are Rakesh and his children, argue that Mr. Bhatia is a necessary witness to this matter as he is aware of the transactions and can explain the rationale behind them. They also argue that if Mr. Bhatia was permitted to act as counsel, he would be in an irretrievable conflict of interest between his role to be fair to the Court and his role representing the Respondent/Defendants, who are Jeevan, Mukesh and their children.

7The Respondent/Defendants argue that it is a rare occurrence for counsel of choice to be removed from the record. They also argue that it is unnecessary in this case because Mr. Bhatia is not named in any of the pleadings, that Mr. Bhatia’s integrity is not directly impugned in this matter and that he was merely acting as a solicitor. They also argue that, in any event, Mr. Bhatia’s advice was privileged.

8I have concluded that Mr. Bhatia is a necessary witness in this case. He was the lawyer who acted for Jeevan and Mukesh on two of the key transactions in this case. He will have received instructions from Jeevan and Mukesh and will understand why they decided to place a section 71 notice on the property owned by their mother and then subsequently sell it. It is also no answer to claim that Mr. Bhatia’s advice was privileged, as privilege has been waived over these transactions. Finally, even if privilege continued to exist, Mr. Bhatia would be in an irretrievable conflict between his obligations to the Court and his obligations to his clients.

9Therefore, for the following reasons, I am directing that Mr. Dheeraj Bhatia and his firm, Madamser Law, be removed from the record.

Background Facts

a) The Parties

10Kuldip Sharma had three sons. In 2015, she was beginning to experience some cognitive decline. As a result, she named her three sons as her Powers of Attorney for Property and Personal Care. This was done through a joint POA.

11Kuldip owned a condominium property at 21 Knightsbridge in Brampton, Ontario. My understanding is that Kuldip originally lived there. At some point, however, Kuldip’s ability to function, make decisions and care for herself declined to the point where she moved to a Long-Term Care (“LTC”) facility. Once Kuldip moved, the Knightsbridge property was rented out and the rents were used to fund the expenses associated with Kuldip’s LTC accommodations.

12As I have noted above, Rakesh managed most of Kuldip’s affairs between 2015 and 2019. Part of the litigation before the Courts involve challenges Rakesh’s management of those affairs, and I make no determinations in that regard.

b) The Impugned Transactions

13In 2019, Mukesh and Jeevan retained Mr. Bhatia and instructed him to register a notice under section 71 of the Land Titles Act, R.S.O. 1990, c. L. 5. That section states, in part:

71 (1) Any person entitled to or interested in any unregistered estates, rights, interests or equities in registered land may protect the same from being impaired by any act of the registered owner by entering on the register such notices, cautions, inhibitions or other restrictions as are authorized by this Act or by the Director of Titles. R.S.O. 1990, c. L.5, s. 71 (1).

Effect of registration

(2) Where a notice, caution, inhibition or restriction is registered, every registered owner of the land and every person deriving title through the registered owner, excepting owners of encumbrances registered prior to the registration of such notice, caution, inhibition or restriction, shall be deemed to be affected with notice of any unregistered estate, right, interest or equity referred to therein. R.S.O. 1990, c. L.5, s. 71 (2).

14I have reproduced the section because the effect of it is important for the issues I must decide. By registering a notice under this section, Mr. Bhatia is carrying out his client’s instructions and confirming that Mukesh and Jeevan have an interest in the Knightsbridge property.

15That notice was duly registered on November 14^th, 2019, and it indicates that nothing is being done under a Power of Attorney. It also contains a confirmation from Mr. Bhatia that states, “I, Deeraj Bhatia, barrister and solicitor confirm that I am the solicitor for Jeevan K. Sharma and Mukesh K. Sharma. I confirm that the applicants are beneficiaries….and have an interest in the [Knightsbridge property]”,

16However, Kuldip has passed away, and I have the benefit of knowing what the contents of her Will indicate. Kuldip’s Will leaves the proceeds of sale from the Knightsbridge property to her grandchildren, and not to Rakesh, Jeevan or Mukesh. It is, therefore, unclear as to what interest, if any, Jeevan and Mukesh had in the property and what right they had to register this notice against the Knightsbridge property.

17Then, three months after the Section 71 notice was registered against the Knightsbridge property, Jeevan and Mukesh sold the property. That sale, and the subsequent use of the proceeds, is being challenged in this litigation. The lawyer who acted on the sale for Jeevan and Mukesh, and on behalf of Kuldip, was Mr. Bhatia.

18As early as November of 2019, Mr. Bhatia was given information that indicated that Kuldip had significant cognitive deficits. This information was repeated in materials in December of 2020. However, a new Power of Attorney was prepared for Kuldip by Mr. Bhatia. It contains Mr. Bhatia’s signature below a notation that indicates that it is a “true copy of the original”.

19This POA was originally relied upon by Jeevan and Mukesh in order to prevent their brother, Rakesh, from visiting his mother. However, the LTC home indicated that they had significant concerns about the mental capacity of Kuldip when she signed this document, and that they would be relying on the 2015 POA. The LTC home also indicated that the POA could not exclude others from visiting the patient, as determining who would visit a patient was a patient’s right.

20I understand from Mr. Bhatia’s submissions that neither this 2021 POA nor a Will that was drafted at this time are being relied upon at this point. However, I am given to understand that the 2021 POA document may have been used in managing Kuldip’s affairs. I am not reaching a final conclusion on that point. I would observe, however, that their mere creation may be an issue in this litigation.

c) The Litigation History

21This litigation was commenced in September of 2020, by way of an Application for Directions brought by Rakesh in respect of the sale of the condominium and the authority of the various parties under the POA. The action has progressed slowly since that time.

22Mr. Bhatia acted as counsel for Jeevan and Mukesh starting in September of 2020. On January 29^th, 2021, counsel for Rakesh notified Mr. Bhatia that he had a conflict of interest. On August 24^th, 2021, Mr. Bhatia was replaced as counsel by Mr. Paul Portman.

23The matter was the subject of numerous case conferences before me, beginning in 2021. In the nearly five years that have passed, I have been attempting to get the parties to a point where they could have a trial (or a settlement) of the outstanding issues.

24These discussions started with a production order in June of 2021 for the contents of Mr. Bhatia’s real estate file. Privilege was waived, in my view properly, over this file. In my June 24^th, 2021, endorsement, I indicated that I expected everything in the file to be produced.

25In September of 2021, Kuldip passed away, and her Will was opened. That Will appointed at least some of Kuldip’s grandchildren as Estate Trustees and left the proceeds of her estate to her grandchildren. At that point it was necessary to amend the style of cause and involve the grandchildren as the Trustees of the Estate in this matter.

26The underlying claims as between Jeevan, Mukesh and Rakesh remained the same throughout, which is that there were allegations that each of them had mismanaged Kuldip’s affairs and/or appropriated monies belonging to Kuldip as their own. These issues remain to be adjudicated.

27The action proceeded slowly but steadily towards a resolution. Discovery was completed, and the matter was moved towards a trial and/or other disposition. Ultimately, I determined that the matter was ready for trial.

28On October 24^th, 2025, I advised the parties that the matter has been placed on the January 2028, blitz list and that I would be conducting a pre-trial in this matter. I had envisioned the pre-trial as being the last step in this matter before the action was to proceed to trial.

29On December 19^th, 2025, the Defendants served a notice of intention to act in person, and Mr. Portman was removed as counsel of record.

30Shortly thereafter, on January 12^th, 2026, the Plaintiffs served their Form 50.08 Trial Management Form. That form indicated that one of the likely witnesses in this case would be Mr. Bhatia. Three days later, on January 15^th, 2026, the Defendants served a Notice of Change of Lawyer, indicating that Mr. Bhatia had been re-retained as counsel.

31The Plaintiffs objected to Mr. Bhatia acting in this matter, and the date that I had originally planned to conduct the pre-trial became the date for the hearing of this motion.

The Positions of the Parties

32The Plaintiffs argue that Mr. Bhatia is a central participant and a necessary witness in this action. The Plaintiffs are challenging the Defendants’ conduct in respect of a series of transactions, including the section 71 notice, the sale of the Knightsbridge property, the drafting of the 2021 POA and the drafting of a subsequent Will. Mr. Bhatia is a central player in all of these transactions. It would not be fair to the Court or to the Plaintiffs to permit someone so intimately involved in the transactions to conduct the case.

33The Defendants argue that Mr. Bhatia is not a material witness and his testimony is not necessary. They also argue that the removal of counsel would be an extraordinary remedy and an unjustified interference with the Defendants’ right to counsel of choice. The Defendants argue that the work done by Mr. Bhatia was “transactional and ministerial”, and that there is no evidence that counsel provided independent, substantive advise that is central to a contested issue in the litigation.

Law and Analysis

34The Court has an inherent jurisdiction to remove counsel from the record. In exercising that jurisdiction, the Court is concerned with balancing the competing values of maintaining the high standards of the legal profession and ensuring that litigants are not deprived of their counsel of choice without good cause: MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235.

35However, the jurisdiction to remove counsel from the record is exercised very sparingly, and only in the clearest of cases: Best v. Cox, 2013 ONCA 695, Notay v. Bhara, 2017 ONSC 1755. The test for removal of counsel has been described as whether a fair minded and reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the lawyer: Karas et. al. v. Her Majesty the Queen et. al., 2011 ONSC 5181 at para. 26.

36In cases where there is a real possibility that counsel for one party or the other is going to be a witness, then the factors that the Court considers are those that are set out in Essa (Township) v. Guergis, 1993 8756m (1993) 15 O.R. (3d) 573:

a) The stage of the proceedings;

b) The likelihood that the witness will be called;

c) The good faith (or otherwise) of the party making the application;

d) The significance of the evidence to be led;

e) The impact of removing counsel on the party's right to be represented by counsel of choice;

f) Whether trial is by judge or jury;

g) The likelihood of a real conflict arising or that the evidence will be "tainted";

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

h) The connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

37In this case, it is quite possible that Mr. Bhatia will be called as a witness. Therefore, it is useful to consider the Essa factors. Once I have considered those factors, I will consider the issue of whether there is a conflict even if Mr. Bhatia does not testify as a witness.

The Essa Factors

The Stage of the Proceeding

38At this point, discoveries have been completed, and the matter has been set down for trial. As a result, the contours of the case are well known, and it is much easier to determine whether the evidence of Mr. Bhatia is going to be necessary. This is a factor that favours the Plaintiffs’ position.

The Plaintiffs’ Good Faith

39The Plaintiffs raised this conflict back in 2021 and received what they viewed as a satisfactory answer to their concerns when Mr. Bhatia was removed from the record by the Defendants. The moment that Mr. Bhatia came back on record, the Plaintiffs renewed their concerns. They have diligently pursued those concerns. This is a factor that also favours the Plaintiffs’ position.

Questions In Respect of the Witness

40The questions of the likelihood that Mr. Bhatia will be called, the significance of his evidence and the likelihood of a conflict can all be dealt with together.

41In considering the significance of the potential evidence to be led, it is useful to consider some of the points made in the Defendants’ factum:

Instructions and retainer: While the deceased was alive and thereafter pursuant to the power of attorney, the defendants instructed Mr. Dheeraj Bhatia to act as solicitor for the sale of the Property, Counsel's retainer was limited to conveyancing tasks.
Scope of solicitor work: Counsel's role consisted of reviewing title, reviewing the Agreement of Purchase and Sale, arranging closing, and administering trust funds and disbursements in accordance with the Deceased's instructions through the power of attorney.

42The instructions and retainer, and the scope of Mr. Bhatia’s work as a solicitor might very well be an issue in this case. Some of the questions that it can be reasonably anticipated that Jeevan and Mukesh will be asked include:

a) Did anyone advise you that placing a section 71 notice on the title of a property might lower the value of that property?

b) Did anyone advise you that placing a section 71 notice on your mother’s property could be seen as a breach of your fiduciary duty towards her, given that you were acting as her POA at the time you put the notice on the property?

c) Did anyone advise you of the propriety of drafting a POA and having it signed when the person signing the POA is likely incapable of doing so?

43All these questions will engage the understanding of Jeevan and Mukesh as to the scope of their fiduciary duties in respect of the conduct of their mother’s affairs. That will, in turn, engage the question of the advice that Mr. Bhatia provided to Jeevan and Mukesh as they engaged in these activities. It makes Mr. Bhatia a material witness.

44In particular, the section 71 notice is, contrary to the submissions of Mr. Bhatia, more than a “transactional and ministerial” matter. It is a question of balancing the interests of Jeevan and Mukesh against their fiduciary obligations to their mother. The advice that Mr. Bhatia gave to them will, of necessity, become relevant to the Court’s determination of the issues, and particularly of whether they exercised their fiduciary responsibilities properly.

45There are other problems with having Mr. Bhatia lead evidence about these issues from other witnesses, even if he is not called as a witness himself at trial. I will address those concerns below.

46This brings me to the last observation on this issue, which is something that Defendants’ counsel spent a great deal of time on in his argument. Specifically, the Defendants take the view that, since Mr. Bhatia has not been made a defendant to the claim and there is no paragraph specifically referencing him in this claim, he cannot be a material witness.

47There is no merit to this submission. I have outlined above some of the ways in which Mr. Bhatia’s involvement in this file is likely to become an issue (and perhaps a central issue) in this litigation. He may very well have to testify, and it may be necessary for the Defendants to call him as a witness, even if the Plaintiffs choose not to. The mere fact that Mr. Bhatia isn’t mentioned in the pleadings is entirely beside the point.

The Remainder of the Essa Factors

48The remainder of the Essa factors are far less significant than the distinct possibility that Mr. Bhatia will be a material witness in this case. In any event, however, those factors are either neutral, or they favour the Plaintiffs’ position in this matter.

The Inherent Conflict of Interest

49There are two potential conflicts of interest that arise if Mr. Bhatia is permitted to remain as counsel in this matter. These two conflicts have been described by Gillese J. in Urquhart v. Allen Estate, [1999] O. J. No. 4816, at para. 27:

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.

50It is the second conflict that is a problem in this case. Even if Mr. Bhatia is not called as a witness, if he acts as counsel at trial, he will be leading evidence from his clients, Jeevan and Mukesh, about the discussions that they had with Mr. Bhatia about the section 71 notice, the POA’s and the sale of the condominium. While I have explained (at para. 44) why these are more than merely ministerial and administrative tasks, even if they were, the transactions themselves are central to the determinations that the Court has to make.

51Put another way, the fact that Mr. Bhatia’s professional conduct is not raised in the pleadings does not mean that it is not going to come up as an issue in the trial of this matter. Jeevan and Mukesh will testify about the steps they took, and the advice they received prior to taking those steps. That evidence will raise, at least indirectly, the advice they received from Mr. Bhatia.

52In other words, the mere fact that Mr. Bhatia has personal knowledge of the transactions raises issues in respect of both his examinations in chief and his cross-examinations. Those issues were explained in Young-Tangjerd v. Official Board of Calvary United Church, 2006 ONSC 2161, 2006 CarswellOnt 3286 (at para. 7):

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.

53The last sentence of this passage is particularly apposite in this case. If one of Jeevan or Mukesh says something (in chief or in cross) that is different from Mr. Bhatia’s recollection of events, all sorts of issues will arise. I do not intend to speculate on what those issues could be. I would just note the questions I have set out in paragraph 42 as simply being a couple of examples of the questions that could be asked.

54In my view, it is manifestly obvious that Mr. Bhatia cannot be counsel in this matter. Even if he is not called as a witness, his mere presence asking questions of any of the other witnesses may very well raise the concerns described in Young. For those reasons, he cannot continue as counsel and is removed from the record.

Conclusion and Costs

55For the foregoing reasons, the Plaintiffs’ motion to remove Mr. Bhatia from the record is granted. The Defendants have thirty (30) days from the release of these reasons to either serve a Notice of Intention to Act in Person or to name an alternate counsel.

56The matter remains on the blitz list for the January 2028 sittings. Given the very serious delays in moving this matter forward, and the relatively modest value of the amounts in dispute in this matter, the trial date is peremptory on both sides and will proceed with or without counsel. This warning is given nearly two years prior to trial, which should provide everyone involved with enough time to ensure that they have counsel.

57I also remain responsible for continuing to manage this matter. To that end, the parties are to choose one of the following dates for a 9:30 a.m. appearance by ZOOM to discuss next steps: May 13, 14, 20 or 21. The parties are to consult and choose one date. The dates are far enough out for the Defendants to find alternate counsel.

58Finally, there is the subject of costs. The parties are encouraged to agree on the costs for this motion. Failing agreement, the following timetable will apply:

a) The Plaintiffs shall have twenty-one (21) calendar days from the release of these reasons to serve, file and upload their costs submissions. Those submissions are to be no more than two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.

b) The Defendants shall have twenty-one (21) days thereafter to serve, file and upload their costs submissions. Those submissions are to be no more than two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.

c) In addition to serving, filing and uploading the costs submissions, the parties are required to counsel is to provide a copy of the submissions to my attention through the e-mail address: SCJ.CSJ.General.Brampton@ontario.ca . The e-mail should be sent to my attention and should contain the name and file number of the case.

d) There are to be no reply submissions. If I do not receive costs submissions in accordance with these deadlines, then there will be no order as to costs. There are also to be no extensions to the deadlines for filing costs submissions, even on consent, without my leave

59As a final matter on costs, I note that the Plaintiffs may be seeking substantial indemnity costs in this matter. While the test for substantial indemnity costs is high, I am prepared to consider that submission and I expect both sides to address the issue.

LEMAY J.

Released: March 23, 2026