Galloway v. Corporation of the Town of Newmarket, 2026 ONSC 4113

Court File and Parties

CITATION: GALLOWAY v. CORPORATION OF THE TOWN OF NEWMARKET, 2026 ONSC 4113 COURT FILE NO.: CV-22-00001142-0000 DATE: 20260630

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: EILEEN GALLOWAY and JOHN GALLOWAY, Plaintiffs

AND:

CORPORATION OF THE TOWN OF NEWMARKET and HEATHER CECILIA NOECKEL, Defendants

BEFORE: Associate Justice Mak

COUNSEL: Diana Reid, for the Plaintiffs Kateryna Borodenko, for the Defendant Heather Cecilia Noeckel Rutvi Patel, Student-at-Law, for the Defendant Corporation of the Town of Newmarket

HEARD: March 6, 2026, by videoconference

REASONS FOR DECISION

1On February 2, 2022, the plaintiff Eileen Galloway allegedly sustained injuries when she slipped and fell on ice located adjacent to property owned by the defendant Heather Cecilia Noeckel. Ms. Galloway commenced this action against the defendants to claim damages arising from this incident.

2The plaintiffs bring this motion for an order removing Dean Melamed and AMR LLP as lawyers of record for Ms. Noeckel due to a conflict. This conflict allegedly arises from Ms. Galloway and Jean Weese, a law clerk at AMR LLP, being former coworkers.

3Ms. Noeckel opposes the plaintiffs’ motion. The defendant Corporation of the Town of Newmarket (“The Town of Newmarket”) takes no position on this motion.

Factual Background

4Rachlin & Wolfson LLP and Alan Rachlin are Ms. Galloway’s lawyers of record in this action. AMR LLP and Dean Melamed are the lawyers of record for Ms. Noeckel.

5Since approximately May 2023, Ms. Weese has worked as a law clerk at AMR LLP. From February 2012 to June 30, 2021, Ms. Weese worked as a law clerk at Rachlin & Wolfson LLP.

6Ms. Galloway has worked as a legal assistant at Rachlin & Wolfson LLP for approximately 20 years.

7Ms. Weese states in her affidavit, sworn for this motion, that while working at Rachlin & Wolfson LLP she became acquainted with Ms. Galloway. They had “infrequent work collaborations”. Ms. Weese states she has no knowledge of Ms. Galloway’s “pre-incident health, education, or any other relevant personal information.”

8Ms. Galloway swore an affidavit in support of this motion. She states that “for many years” she sat and worked beside Ms. Weese in a room at Rachlin & Wolfson LLP containing only two workstations, and “from time to time” they would discuss their personal lives.

9Jozsef Horvath, a lawyer at Rachlin & Wolfson LLP, swore an affidavit in support of this motion. He states Mr. Rachlin informed him that up to the end of 2020, Ms. Weese and Ms. Galloway were both part of Mr. Rachlin’s work group and “from time to time collaborated with each other with respect to files being handled in the work group.”

10The alleged incident that gives rise to this action occurred on February 2, 2022 – after Ms. Weese ceased her work at Rachlin & Wolfson LLP and before her employment commenced at AMR LLP.

11The Statement of Claim was issued on April 4, 2022. Ms. Noeckel delivered a Statement of Defence and Crossclaim on or about September 29, 2022. The Town of Newmarket delivered a Statement of Defence and Crossclaim on or about April 11, 2023.

12Ms. Galloway and Ms. Noeckel were examined for discovery on June 15, 2023.

13On or about November 10, 2023, Ms. Weese was assisting Mr. Melamed while his regular clerk was absent from the office. Mr. Melamed asked Ms. Weese to follow up with Ms. Galloway for outstanding undertakings arising from her examination for discovery. Upon reviewing the file, Ms. Weese became aware that Ms. Galloway was involved in this lawsuit. Ms. Weese advised Mr. Melamed that she was familiar with Ms. Galloway, and that the alleged incident occurred after Ms. Weese stopped working at Rachlin & Wolfson LLP. Mr. Melamed approved of Ms. Weese continuing to work on her task.

14On November 10, 2023, Ms. Weese wrote to plaintiffs’ counsel to request outstanding undertakings. By way of this correspondence, plaintiffs’ counsel learned for the first time that Ms. Weese was employed by counsel for Ms. Noeckel and was working on this matter.

15On November 13, 2023, Ms. Weese requested further documents from plaintiffs’ counsel.

16On November 14, 2023, Mr. Rachlin advised Mr. Melamed that Ms. Weese had worked at Rachlin & Wolfson LLP, knew Ms. Galloway as a coworker, has personal knowledge of Ms. Galloway, and that therefore AMR LLP was conflicted out of this action.

17Ms. Weese states in her affidavit that she has not had any involvement in this action since November 13, 2023. She further states that no one at AMR LLP has approached her for any insight into this matter, and she does not have any insight to contribute.

Law and Analysis

18The issue for the court to determine on this motion is whether Dean Melamed and AMR LLP should be removed as lawyers of record for Ms. Noeckel.

19The court has inherent jurisdiction to remove lawyers from the record who have a conflict of interest: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235 at para. 21 (“MacDonald Estate”).

20Both parties agree that MacDonald Estate applies to this motion. However, the parties disagree on how this decision should be applied.

21The defendants submit that the relevant test for the court to apply on this motion is outlined in MacDonald Estate at para. 48: “(1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?”

22The plaintiffs submit MacDonald Estate applies to this motion due to the principles that the Supreme Court of Canada endorses in that decision. These principles can be found at paras. 16 and 21 of MacDonald Estate:

[16] In resolving this issue, the court is concerned with at least three competing values. There is first of all the concern to maintain the high standards of the legal profession and the integrity of our system of justice. Furthermore, there is the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause. Finally, there is the desirability of permitting reasonable mobility in the legal profession. …

[21] . . . The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to apply a code of ethics. The court’s 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. Nonetheless, an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy. . . .

23The plaintiffs submit McAfee A.J. in Karas et al. v. Her Majesty the Queen et al., 2011 ONSC 5181 (“Karas”) articulated the appropriate test for the court to apply on this motion:

[26] The overarching test to be applied on a motion to remove a lawyer from the record 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 very fact specific and based on an examination of all of the factors in the case and the specific reason why the motion is being brought. The task of the court is to uphold and preserve the integrity of the justice system while ensuring that litigants are not deprived of their counsel of choice without good cause (see Gaeten Chip Stand Inc. v. Twp. Of North Glengarry, 2005 CanLII 39884(SCJ) at para 8 citing Everingham v. Ontario (1992), 1992 CanLII 7681 (ON CTGD), 8 O.R. (3d) 121 (Div.Ct) at p. 127 and see Macdonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at paras 16, 47-51 and 65-66).

24The plaintiffs submit that the court should remove Mr. Melamed and AMR LLP on the basis that Ms. Weese is a potential witness to Ms. Galloway’s pre-accident condition and employability, and may be called as a witness at trial. The plaintiffs cite Ontario Realty Corp. v. P. Gabriele & Sons Ltd., 2006 CarswellOnt 6983 (“Ontario Realty Corp.”), among other cases, in support of their position. The plaintiffs acknowledge the case law on this issue addresses when a lawyer on a file, not a law clerk, is an advocate and a potential witness at the same proceeding.

25Ms. Noeckel submits that in applying the test outlined in MacDonald Estate, the plaintiffs bear the onus of establishing, on a balance of probabilities, that Mr. Melamed and/or AMR LLP received confidential information attributable to a solicitor and client relationship relevant to this matter. Ms. Noeckel submits that the plaintiffs have not established, on a balance of probabilities, that relevant confidential information was shared, and therefore the court should dismiss this motion because the plaintiffs have not met the first part of the MacDonald Estate test.

26I agree with Ms. Noeckel that neither Mr. Melamed nor AMR LLP received confidential information attributable to a solicitor and client relationship relevant to the matter at hand. However, the court’s analysis does not stop here.

27I disagree with Ms. Noeckel’s suggestion that for this motion only the two-part test of MacDonald Estate applies. Although counsel for Ms. Noeckel has advised the plaintiffs that Ms. Noeckel agrees not to call “the clerk” – presumably Ms. Weese – as a witness at the trial, the Town of Newmarket has not made any such assurances. The plaintiffs have also not commented on whether they intend to call Ms. Weese as a witness at the trial. Therefore, the court must consider the issue of whether Mr. Melamed and AMR LLP should be removed as lawyers of record for Ms. Noeckel because the Town of Newmarket and/or the plaintiffs can call Ms. Weese as a witness at the trial.

28In Essa (Township) v. Guergis; Membery v. Hill, 1993 CanLII 8756 (ON CTGDDC) (“Essa”), at para. 48, the Divisional Court stated that the court should address situations where trial counsel appears on a proceeding where a member or associate of the same firm is, or is likely to be a witness, as follows:

I accept submissions made by counsel for the Advocates Society that in these applications a court should approach the matter by following a flexible approach and consider each case on its own merits. A variety of factors should be considered. These will include:

-- the stage of the proceedings;

-- the likelihood that the witness will be called;

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

-- the significance of the evidence to be led;

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

-- whether trial is by judge or jury;

-- 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;

-- the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

29In Ontario Realty Corp., Morawetz J. stated that Essa does not stand for the proposition that certainty is required with respect to whether a witness will be called, as Essa specifically referred to likelihood. He further stated on this issue, at para. 34:

In Graham v. Ontario (2006), 26 C.P.C. (6th) 238 (Ont. S.C.J.), D.J. Gordon J. summarized the issue in a precise manner that, in essence, combines two of the factors in Essa, (i) the likelihood that the witness will be called; and (ii) the significance of the evidence to be called. At paragraph 35 he stated:

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: see: R. v. Harris (1994), 1994 CanLII 2986 (ON CA), 93 C.C.C. (3d) 478, at p. 479, (O.C.A.); Urquhart v. Allen Estate, supra, at para. 22; and Forward v. Zurich Insurance Co., 2002 ABCA 123, [2002] 303 A.R. 119 (Alta. C.A.).

30I find the principles and factors outlined in Essa apply to this situation. Although Ms. Weese is not a lawyer at AMR LLP, she is an employee of the firm that is counsel for Ms. Noeckel in this proceeding.

31In considering the non-exhaustive Essa factors, I make the following findings:

(a) Examinations for discovery have taken place. The parties have indicated that they would like to proceed to mediation. It does not appear that the parties have completed their discovery of documents.

(b) The evidence before me indicates the plaintiffs are bringing this motion in good faith. In particular, Ms. Galloway swore an affidavit in which she expressed concerns, which are uncontroverted, with the continued representation of Mr. Melamed and AMR LLP in this matter.

(c) The trial will be conducted by a judge alone.

(d) AMR LLP employs Ms. Weese as a law clerk. Mr. Melamed works at AMR LLP as a lawyer, and is the lawyer of record for this action. Ms. Weese is not the regular law clerk for Mr. Melamed.

(e) Ms. Weese and Ms. Galloway had a close and longstanding work relationship. For up to eight or nine years, they worked next to each other in a room with only two workstations – one for each of them. From time-to-time they discussed their personal lives. They occasionally worked together on files. I make these findings based on the following evidence:

i. Ms. Galloway’s statement in her affidavit that as of August 2025 she has worked at Rachlin & Wolfson LLP for approximately 20 years;

ii. Mr. Horvath’s statement in his affidavit that Ms. Weese started working at Rachlin & Wolfson LLP in February 2012 until June 30, 2021;

iii. Ms. Weese’s statement in her affidavit that she had “infrequent work collaborations with [Ms. Galloway]” during Ms. Weese’s employment at Rachlin & Wolfson LLP;

iv. Ms. Galloway’s uncontroverted statement in her affidavit that she “sat and worked beside Ms. Weese in a room at Rachlin & Wolfson containing only two workstations for many years, and from time to time we would discuss our personal lives”; and

v. The uncontroverted statements from Mr. Horvath’s affidavit that Ms. Galloway and Ms. Weese were both part of Mr. Rachlin’s work group up to the end of 2020, and “from time to time collaborated with each other with respect to files being handled in the work group.”

(f) Counsel for Ms. Noeckel advised the plaintiffs that Ms. Noeckel will not call Ms. Weese as a witness. Counsel for Ms. Noeckel has not given an undertaking or advised that they will not cross-examine Ms. Weese if she is called as a witness at trial by the plaintiffs or the Town of Newmarket.

(g) Applying the test outlined at para. 35 of Graham v. Ontario, 2006 CanLII 17598 (ON SC), which was cited by Morawetz J. in Ontario Realty Corp. as stated above at para. 30, I find there is a real basis to believe that Ms. Weese can likely provide evidence material to the issues in dispute in this action. Ms. Galloway claims entitlement to damages due to injuries and restrictions caused by the incident, and the defendants plead in their Statements of Defence that Ms. Galloway’s alleged injuries and limitations are unrelated to the fall at issue. Although Ms. Weese states that she has no knowledge of Ms. Galloway’s pre-incident health, education, or any other relevant personal information, and has no “insight” to contribute, Ms. Weese’s affidavit is silent with respect to her personal conversations with Ms. Galloway and her observations of Ms. Galloway as a coworker. Due to their close and longstanding working relationship, I find Ms. Weese can likely provide material evidence at trial as to her personal conversations with Ms. Galloway and/or her observations of Ms. Galloway as a coworker, including her pre-incident functional abilities and employment.

(h) A likelihood exists that Ms. Weese will be called as a witness at trial. I accept the plaintiffs’ submission that a person who worked closely with Ms. Galloway prior to the incident would likely be asked by a party or parties to testify in terms of Ms. Galloway’s pre-accident employability, including functional abilities at work. I also accept the plaintiffs’ submission that Ms. Weese is an ideal witness in this regard, because she was the only person who worked next to Ms. Galloway for many years – up to eight or nine years prior to the incident – and they last worked next to each other between the end of 2020 to June 30, 2021, which is a short period before the alleged incident.

(i) The Town of Newmarket and/or the plaintiffs can call on Ms. Weese as a witness at trial. If that occurs, counsel for Ms. Noeckel will be in a position to cross-examine a favourable witness, as Ms. Weese remains employed by counsel for Ms. Noeckel.

(j) Ms. Noeckel will be prejudiced to some degree by the removal of Mr. Melamed and AMR LLP as her lawyers of record. She will need to retain and instruct new lawyers in this litigation, and will incur expense and delay in this regard. The plaintiffs did not serve their motion materials for this motion until November 19, 2024, and it is unknown from the evidence before the court as to when this motion was scheduled. However, Ms. Noeckel’s lawyers were put on notice on November 14, 2023 that in these circumstances it would be inappropriate for AMR LLP to be Ms. Noeckel’s counsel. Ms. Noeckel chose for AMR LLP to continue representing her until this motion could be heard and decided. Therefore, some of her prejudice is self-inflicted.

(k) It is unknown at this stage the likelihood of a real conflict arising, as neither the Town of Newmarket nor the plaintiffs have advised whether they intend to call Ms. Weese as a witness. However, it is likely that Ms. Weese’s dual roles as an employee at AMR LLP and as a witness at trial will result in her evidence at trial being “tainted”. A witness who is an employee of the law firm defending Ms. Noeckel would have an interest in seeing Ms. Noeckel succeed, and as explained above at para. 32(i), there is a probability that counsel for Ms. Noeckel will be in a position to cross-examine Ms. Weese as a favourable witness.

32In considering the principles of MacDonald Estate, the factors set out in Essa, and the overarching test to be applied on such a motion as articulated in Karas, I find good cause to remove Dean Melamed and AMR LLP as lawyers of record. I recognize that this removal of Ms. Noeckel’s counsel impacts on her right to counsel of her choice. However, this conflict must be avoided.

33I have arrived at this conclusion after considering the factors outlined above at para. 31, with emphasis on the following: the lack of an undertaking or any other assurance by AMR LLP not to cross-examine Ms. Weese at trial; the nature of the relationship between Ms. Weese and AMR LLP as employee and employer, respectively; and the nature of the relationship between Ms. Weese and Ms. Galloway, which gives rise to a real basis to believe that Ms. Weese can likely provide material evidence at trial.

34Taking into account the unique facts of this matter, I find that a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires the removal of Mr. Melamed and AMR LLP as lawyers of record for Ms. Noeckel.

Disposition

35For the foregoing reasons, the court orders Mr. Melamed and AMR LLP to be removed as lawyers of record for Ms. Noeckel.

36The plaintiffs were entirely successful on their motion. They seek partial indemnity costs as submitted to the court in their costs outline.

37After considering the factors under r. 57.01(1) in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in awarding costs, I find it is just and reasonable that partial indemnity costs of $6,817.42 be awarded to the plaintiffs, to be payable by Ms. Noeckel forthwith.

Associate Justice C. Mak