Case: Terrigno v. Weal, 2026 ABCA 300 (CanLII)
Keywords: steakhouse; right to counsel of choice; defamation
Synopsis:
The Appellant files statements of claim against the Respondents for online defamation (i.e., statements regarding an alleged steakhouse assault and racist videos). The Respondents plead that the statements were true or constituted fair comment. (See paras. 2-3).
The Appellant retains counsel (i.e., The Honourable Jonathan Denis, K.C.); the Respondents apply to disqualify him (and his entire firm) on the basis that: 1) he is “in both videos and they intended to call him as a witness to authenticate…and to support their defences”; 2) his role as witness would conflict with his role as an independent officer of the Court. (See para. 5). The Chambers Judge (Malik J.) grants the application. The Appellant appeals; the Court of Appeal (Antonio, Woolley, and Shaner JJ.A.) dismisses the appeal. (See para. 20).
Importance:
The Court of Appeal provided a detailed review of the jurisprudence with respect to applications to disqualify counsel at paras. 6-9. We summarize as follows:
- The ability of litigants to retain and continue with counsel of choice is not necessarily a “right”;
- To the extent that it is a “right”, it is not absolute, but “subject to some limits” (e.g., “[courts may be required to remove counsel from pending litigation to avoid the risk of improper use of confidential information, to avoid the potential for impaired representation, or to maintain the repute of the administration of justice”). (See para. 6).
- In the specific context where a lawyer acts as both advocate and witness in the same matter, “not only is there a potential conflict of interest between counsel and his client, there is also a potential conflict with counsel’s role as officer of the court”;
- Public perception that a lawyer might obtain an unjust advantage for his or her client “would impermissibly damage the repute of the administration of justice”. (See para. 7).
- The Law Society of Alberta’s Code of Conduct at Rule 5.2-1 prohibits a lawyer from testifying in a manner for which he or she appears as counsel, “unless permitted by law or the courts, or unless the matter is purely formal or uncontroverted” because a lawyer should not “put the lawyer’s own credibility in issue”. (See para. 8).
The Court of Appeal emphasized that the decision to remove/not remove a lawyer is an exercise of discretion “within the innate jurisdiction of the Court of King’s Bench” and owed deference on appeal. (See para. 9; Beacon Hill Service (2000) Limited v. Esso Petroleum Canada, 2012 ABCA 269 at paras. 2, 4-5).
In this case, the Court of Appeal found no basis to interfere with the Chambers Judge’s decision. For the Court of Appeal, the “proper consideration” by the Chambers Judge was “whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the lawyer”. The Court rejected the Appellant’s argument that his lawyer was not a “likely” witness, finding no reviewable error in the Chambers Judge’s “context-sensitive conclusions”, including that the disqualification application was not “merely tactical in nature”. (See paras. 12-16).
Of further interest, the Court of Appeal explained that disqualification of the Appellant’s lawyer’s entire firm was justified because, among other things, “[w]hen the chambers judge asked counsel for the appellant whether Mr. Denis’ disqualification should extend to the firm, he responded, “Well, he is the firm””. (See para. 17). Ultimately, the Court of Appeal found no reviewable error in the decision to disqualify the firm as well – and declined to consider alternatives to disqualification. (See para. 18).
Counsel for the Appellant: Mike Terrigno, in person
Counsel for the Respondents: Monique Morin (Morin Holmes LLP, Calgary)