In Anderson & Company v Pare, 2026 SKCA 107, the Saskatchewan Court of Appeal considered when a law firm should be removed as litigation counsel because its lawyers or staff may be required to testify. The underlying estate dispute concerned the beneficial ownership of certain farmland.

Factual Background:

In January 2020, Elaine signed a land transfer authorization placing her farmland in joint ownership with her daughter, Annette.

In July 2020, after the land transfer, Elaine’s husband, Kenneth, retained a certain Swift Current law firm (“Law Firm”) to prepare wills for both Elaine and Kenneth. Mr. L, then a lawyer at the firm, prepared Elaine’s will (“2020 Will”). Elaine later signed the 2020 Will in front of two Calgary lawyers.

Elaine then died on August 25, 2020, after an illness with cancer.

The 2020 Will appointed Kenneth executor and left him all of Elaine’s property, including farmland that was then registered in the joint names of Elaine and Annette. In Saskatchewan, when farmland is held in joint tenancy with a right of survivorship, the surviving joint owner automatically becomes the owner upon the death of the other joint owner. Thus, Annette would ordinarily become the sole owner of the farmland.

Kenneth later sued Annette, alleging that the January 2020 transfer of the farmland into the joint names of Elaine and Annette occurred when Elaine lacked mental capacity. Kenneth alleged, however, that Elaine later regained capacity when she instructed and signed her July 2020 Will.

Kenneth sought sole ownership of the farmland. Annette opposed the claim, maintaining that Elaine had capacity to transfer the farmland into joint ownership with her, but lacked capacity to make the 2020 Will. Annette also relied on The Limitations Act, arguing that Kenneth’s claim was barred because it was commenced more than two years after its discovery.

Kenneth responded that the parties had reached a settlement agreement which addressed the limitation period. Annette denied that they had done so, making the existence of the alleged agreement a disputed fact.

Annette applied to remove the Law Firm as Kenneth’s counsel. She argued that lawyers or staff at the Law Firm might have to testify about Elaine’s capacity, as well as about the existence of any alleged agreement affecting the limitation period.

The Law Firm responded that Mr. L no longer worked at the firm, that none of its current lawyers had prepared the 2020 Will, and that the parties had reached an agreement concerning the limitation period. The firm relied on a legal assistant’s affidavit attaching heavily redacted emails.

In the Chambers decision, the Court of King’s Bench removed the Law Firm as Kenneth’s counsel. It held that the firm’s lawyers or staff would likely be required to testify about Elaine Pare’s testamentary capacity and whether the parties had reached an agreement affecting the limitation period. This role as witness created a conflict with the firm’s continued role as counsel. The Law Firm appealed.

Issue:

The Court considered whether the Chambers judge erred by removing the Law Firm.

Decision of the Court of Appeal:

1. What is the governing test for deciding whether to remove a law firm?

The Court of Appeal held that the overriding question is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires removal of the legal counsel (para 29).

The Court of Appeal determined that the following test should be used in making such a determination. The relevant, non-exhaustive factors include:

1. 1. The stage of the proceeding;
   2. The likelihood that a lawyer or staff member will testify and the significance of that evidence;
   3. The applicant’s good faith;
   4. The effect of removal on the client’s choice of counsel;
   5. Whether trial will be by judge alone or jury;
   6. The likelihood of a real conflict or tainted evidence;
   7. Who will call the witness; and
   8. The relationship among counsel, the prospective witness, and the parties (para 28).

2. The departure of the drafting lawyer did not itself permit the Law Firm to continue:

The Court of Appeal held that Mr. L’s departure did not necessarily permit the Law Firm to continue as legal counsel. The Court of Appeal held that a lawyer and firm are presumptively indistinguishable for conflict purposes, and evidence is needed to rebut the presumption that relevant information was shared (para 24 and 47).

The Court of Appeal held that the Law Firm had not adduced evidence identifying what Mr. L knew, whether he discussed Elaine’s instructions or capacity with others at the Law Firm, or what relevant information remained at the firm (para 47).

The Court of Appeal instead concluded that Law Firm lawyers or staff were in fact likely in possession of material evidence concerning the following two central matters:

1. 1. First, they possessed evidence about Elaine’s instructions and testamentary capacity relating to the 2020 Will, as well as her statements concerning the prior January 2020 farmland transfer (paras 54-55):

1. 1. 1. Solicitor-client privilege usually prevents a lawyer from disclosing information obtained through interactions with a client. However the wills exception may permit disclosure when the evidence is relevant to testamentary capacity or the validity of a will. Accordingly, solicitor-client privilege did not necessarily bar this testimony concerning the 2020 Will (para 48).
      2. The wills exception is a rule that allows a lawyer who prepared a will to disclose otherwise confidential information when it is necessary to determine the deceased person’s intentions or whether the will is valid.
      3. In practical terms, the wills exception meant that Elaine’s lawyers could not necessarily refuse to give evidence about her capacity to make the 2020 Will merely because they had obtained the information through their professional dealings with her.

1. 2. Second, they possessed evidence about the alleged limitation agreement:

1. 1. 1. This issue was significant because Annette denied that such an agreement existed. Although settlement negotiations are generally privileged, evidence may be admitted to prove that an agreement was reached (para 49). Kenneth would have to knowingly waive solicitor-client privilege to rely on that information.
      2. Kenneth’s position was that an agreement had been reached through communications with Annette, and this agreement addressed the limitation-period problem. To support this position, a legal assistant in the Law Firm swore an affidavit attaching emails from the firm’s file. Many of those emails were redacted (para 56).
      3. The general rule is that a lawyer should not act as both advocate and witness concerning disputed facts in the same proceeding (para 26). If the lawyer’s evidence is necessary, the usual solution is for the lawyer to testify and for another law firm to conduct the litigation. Here, the Court held that a law firm cannot do indirectly, through a legal assistant’s affidavit, what its lawyers are prohibited from doing directly. In other words, a law firm cannot provide evidence on disputed issues in a proceeding in which it also acts as counsel (para 56).
      4. The Court found that if Kenneth wished to rely on the alleged agreement to defeat the limitation defence, members of the Law Firm would likely have to testify concerning the negotiations and the existence of the agreement. The Court treated this as a major reason supporting removal (paras 49-50).

3. Certain other factors also tended in favour of removal:

The Court considered various other factors. On the one hand, Kenneth’s desire to have his counsel of choice favoured permitting the Law Firm to remain as counsel. Kenneth had a long-term, trusting relationship with the Law Firm. Moreover, retaining a new law firm and having it familiarize itself with the background of this file would result in additional expense (paras 58-59).

However, other factors favoured removal. In particular, the action remained at an early stage. Although mediation was complete, questioning had not begun, leaving time to retain new counsel (para 43).

Ultimately, the decisive consideration was the likelihood that firm members possessed relevant, admissible, and material evidence on central issues (para 66).

Lessons:

Pare offers the following reminders to legal counsel:

1. Identify witness issues early: Identify witness issues early: Estate-planning counsel may later become an important witness where a client’s instructions or capacity, or the preparation or execution of estate documents, becomes disputed; and
2. A specific lawyer’s departure may not cure the problem: A firm wishing to remain as counsel should provide sworn evidence identifying who possessed material information, what information was shared with others at the firm, and what relevant knowledge remains among remaining firm personnel. If the firm asserts that its remaining lawyers were not involved, sworn evidence should support that assertion in detail.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.