Case: Anderson & Company v Pare, 2026 SKCA 107 (CanLII)
Keywords: estates litigation; lawyer disqualification; appellate review
Synopsis:
This appeal arises from the estate of Elaine Pare. Prior to her death, Ms. Pare transfers her farmland into joint ownership with her daughter, Annette Mignault-Bowyer. Thereafter, Ms. Pare’s husband hires the Appellant law firm (Anderson & Company) to prepare their wills; Ms. Pare signs her will in palliative care, as witnessed by two lawyers from a Calgary law firm. The executed will appoints Mr. Pare as executor and leaves him all property – including the land held jointly with Ms. Mignault-Bowyer. (See para. 2).
Mr. Pare then sues Ms. Mignault-Bowyer, asserting Ms. Pare did not have capacity to transfer the farmland (though she later regained capacity when she gave instructions for her will transferring the farmland to his sole ownership). (See para. 3). Ms. Mignault-Bowyer applies to have the Appellant law firm and lawyer Jean Jordaan removed as counsel for Mr. Pare on the basis that “the firm or its members may be required to give evidence”. (See para. 4). Mr. Pare’s position: he is entitled to legal counsel of his choice. The Appellant law firm’s position: the lawyer who drafted the will left the firm, so there would be no conflict were he called to testify. (See para. 5).
The Judge removes the Appellant law firm as counsel because “it was likely that representatives from [the firm] would need to testify” and created an “untenable conflict in the circumstances”. (See para. 6). The Court of Appeal (Jackson, McCreary, and Drennan JJ.A.) dismisses the appeal, finding that “[w]hile the Decision does not expressly identify or apply the legal criteria governing the removal of lawyers or law firms as counsel of record, had the judge applied the correct test, the result would have been the same”. (See para. 9).
Importance:
As stated by the Court of Appeal, “[t]his appeal concerns the circumstances under which a law firm or a lawyer should be removed from representing a party to an action because there is a potential that staff or lawyers of the firm might be required to give evidence in the proceedings.” (See para. 1). At the same time, however, this case is also about the nature of appellate review.
First, the Court of Appeal observed that the decision to remove a lawyer as counsel of record is “discretionary”. (See para. 17; Mockler v New Brunswick et al., 2019 NBCA 50). Next, the Court of Appeal outlined the following key propositions:
- “[t]he standard of review applied depends on the specific alleged error”;
- “[e]rrors of principle or law, including giving sufficient or any weight to a required factor, or whether the correct legal test was applied, are reviewed for correctness”;
- “[e]rrors of fact and the ultimate weighing of the factors are reviewed for palpable and overriding error”; and
- “[a]n appellate court may not intervene merely because it would have exercised its discretion differently”. (See para. 17).
In this case, the Court of Appeal found that whether the Judge did not apply the correct legal test for assessing the removal of the Appellant law firm and Jean Jordaan is a “question of law…reviewable on a correctness standard”. (See para. 18). What the Court of Appeal said next is particularly interesting for appellate lawyers:
When I apply the correctness standard, I am not persuaded the judge made errors of consequence. She correctly concluded that [the Appellant law firm] should be removed as counsel in these proceedings because lawyers or staff from the firm may be required to give evidence in the proceedings. Appeals are from results, not reasons, and the judge’s conclusion was correct. (See para. 19).
As a general statement of law, the jurisdiction of a Court of Appeal depends on the “result” in the sense that the legal character of the order being appealed determines which Court of Appeal hears the appeal; whether it can affect the “result” below. (See, e.g., Paulpillai Estate v. Yusuf, 2020 ONCA 655 (CanLII), at para. 16: “[a]n appeal lies from the court’s order, not from the reasons given for making the order” and “[t]he question of access to appellate review ‘must be decided on the basis of the legal nature of the order’”). This is because, as the Supreme Court of Canada indicated in Kourtessis v. M.N.R., 1993 CanLII 137 (SCC), “[a]ppeals are solely creatures of statute”, “[t]here is no inherent jurisdiction in any appeal court”, and “there is no right of appeal on any matter unless provided for by the relevant statute”.
Importantly, however, Courts of Appeal will/will not engage their jurisdiction depending on the strength of the grounds of appeal. Unless grounds are based upon some sort of preliminary procedural/jurisdictional problem, the focus of an appeal is typically about the presence of some species of error in the “reasons” (e.g., an error of law). And yet, what the Court of Appeal is saying here suggests otherwise – taken by itself, para. 19 suggests that correctness review is about the ‘soundness’ of the result achieved at first-instance, regardless of the presence of a discrete legal error in the reasons. The Court of Appeal has made this statement on at least two prior occasions (e.g., Carruthers v. Carruthers, 2021 SKCA 52 at para. 125 and R. v. Bijl, 2025 SKCA 116 at para. 20). However, it remains to be determined whether the Supreme Court of Canada will endorse this view of correctness.
Regarding the decision to remove the Appellant law firm, the Court of Appeal observed that “[t]he law prohibits lawyers from acting for a client when their interests conflict with the client’s”. (See para. 21; MacDonald Estate v. Martin, 1990 CanLII 32 (SCC) and Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39). For the Court of Appeal, there are three “core principles” to balance though number 3 is “not relevant in this case”: 1) public confidence in lawyers and the profession; 2) the right of a litigant to counsel of choice; and 3) permitting mobility in the profession. (See para. 22).
The Court of Appeal also indicated that a “lawyer’s entire law firm will be implicated in any conflict and will need to withdraw or be removed as the firm and the lawyer are presumptively indistinguishable for conflict-of-interest purposes”. How, then, does one avoid disqualification? Citing the example of Baltzan v. Ahmed, 2008 SKQB 414, the Court observed that the presumption of conflict was rebutted in circumstances where the conflicted lawyer left the firm, none of the lawyers at his former firm participated in drafting the impugned estate materials, and “his evidence was uncontroverted that no other member of the firm, lawyer or staff, had information relevant to the matter.” (See para. 24).
The Court says that lawyers will “generally be disqualified to prevent any conflict” arising from circumstances where a lawyer may be required to become a witness in litigation because “[o]nce a lawyer testifies, their credibility and objectivity are ‘subject to challenge’”. (See paras. 26-27).
The Court of Appeal noted that there are currently different approaches to answering the disqualification question: the one taken by the Ontario Divisional Court in Essa (Township) v. Guergis; Membery v. Hill, 1993 CanLII 8756 (ON CTGDDC) and a ‘modified’ version articulated by the New Brunswick Court of Appeal in Lavender-Smith v. Smith, 2021 NBCA 34 (CanLII).
The Essa decision sets out an analysis based on a “variety of factors” including 1) the stage of the proceedings; 2) the likelihood that the witness will be called; 3) the good faith (or otherwise) of the party making the application; 4) the significance of the evidence to be led; 5) the impact of removing counsel on the party’s right to be represented by counsel of choice; 6) whether trial is by judge or jury; 7) the likelihood of a real conflict arising or that the evidence will be “tainted”; 8) who will call the witness; and 9) the connection or relationship between counsel, the prospective witness and the parties involved in the litigation. (See para. 28).
For the Court of Appeal, there is no need to add a “certainty” component to the Essa approach, or to consider whether the evidence “should be admissible” as a “threshold issue” (i.e., as the New Brunswick Court of Appeal does in Lavender-Smith)because the concept of “likelihood” is already addressed as “part of the contextual balancing analysis” in Essa. (See paras. 31-32). Therefore, the Court of Appeal adopted the Essa framework in Saskatchewan “without modification”. (See paras. 33-34).
In this case, the Judge concluded that the Appellant law firm’s lawyers or staff “would be required to testify on at least one matter at issue” but failed to “expressly identify” the “legal criteria governing the court’s exercise of discretion to remove legal counsel”. (See paras. 35, 67). While the Court of Appeal took the opportunity to “confirm the correct legal criteria…in such cases”, applying the Essa factors at paras. 44-66, the Court of Appeal says the result would be the same – the Appellant law firm should be removed because:
[W]hile some of the Essa factors are neutral and one factor weighs against disqualification, the most crucial factors support removal. The fact is that the lawyers or staff of [the Appellant law firm] likely have relevant, admissible, material evidence on issues core to this action. A fair-minded, reasonably-informed member of the public would conclude the proper administration of justice requires [the Appellant law firm’s removal. The judge correctly concluded the circumstances required disqualification. There is no basis upon which this Court should intervene. (See para. 66).
The Court of Appeal also clarified that the Baltzan case does not stand for the proposition that there is no need to remove a lawyer’s former law firm if the lawyer who could be called as a witness has left the firm – indicating that the outcome depended “on the specific facts” in that case. It would appear that, ultimately, this is a case-by-case determination. (See para. 47).
Counsel for the Appellant: Jean Jordaan (Anderson & Company, Swift Current)
Counsel for the Respondent, Keneth Pare: Ryan Nagel (Argue Law, Swift Current)
Counsel for the Respondent, Annette Mignault-Bowyer: Timothy Stodalka (McLean Keith LLP, Regina)