Rule 15.04 of the Rules of Civil Procedure sets out the rules on motions for removal from the record in Ontario. The rule was updated January 1, 2019.
This blog post will look at removing a lawyer of record from both the lawyer and client perspectives. Note the distinction between a client who is an individual versus a client who is a corporation.
Also, as a general comment, it is typically best for the lawyer and the client to work together on a smooth transition to either have the client hire a new lawyer or have the client become self-represented. Motions for removal from the record are counter-productive for both the lawyer and client and send a negative signal to the other parties in the litigation.
Lawyers can be removed form the record when a new lawyer serves and files a notice of change of lawyer.
Lawyers can assist clients who are individuals by explaining a notice of intention to act in person and then if the client agrees, by serving an filing a notice of intention to act in person signed by both the client and lawyer.
Lawyers who represent corporations can assist them in bringing a motion pursuant to rule 15.01 (2) for leave (permission) to have the corporation represented by someone who is not a lawyer. Hassell Trial Counsel regularly advises on how to bring this motion and has motion templates available for purchase.
Lawyers can also bring a motion for removal from the record whether they represent a client who is an individual or a client that is a corporation. The wording of the Court order is different depending on whether the client is an individual or corporation.
The key steps for a lawyer bringing a motion for removal from the record:
- Bring the motion on notice – rule 15.04(1.1).
- Have 2 versions of the motion record: 1 for public use that contains no lawyer-client privileged information and 1 for private use that may contain lawyer-client privileged information – rules 15.04 (2) and (3).
- Serve the public version on all parties, including the former client. File the public version.
- Serve the private version on the client. Do not file the private version, rather it may be presented to the Court at the hearing.
- Obtain the order at the hearing and have the order issued and entered. Note that the wording of the order is different for individuals than for corporations – rules 15.04 (4) as well as (6)+(7) for corporations or (8)+(9) for individuals.
- Serve the order on the client. Serve the order and proof of service upon the client on all other parties – rule 15.04(5)(a).
- File with the Court an affidavit of service of the order on the client and an affidavit of service of both (a) the order and (b) the affidavit of service of the order on the client with the Court – rule 15.04(5)(b).
All clients, individual or corporation, can change lawyers by having a new lawyer serve and file a notice of change of lawyer.
Clients who are individuals can also serve and file a notice of intention to act in person, signed by the client only.
Clients that are corporations can bring a motion pursuant to rule 15.01 (2) for leave (permission) to have the corporation represented by someone who is not a lawyer. This is typically a key director or officer of the company. Hassell Trial Counsel regularly advises on how to bring this motion and has motion templates available for purchase.
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