Calgary Man Loses Appeal After Lawyer Disqualified as Likely Witness

A Calgary man has lost his appeal of a court decision disqualifying his lawyer from representing him because the lawyer is likely to be called as a witness in the proceedings.

A trio of judges with the Alberta Court of Appeal issued its decision on Sept. 17, dismissing Mike Terrigno’s appeal of a King’s Bench judge’s decision to disqualify lawyer Jonathan Denis and his law firm from acting as counsel in two actions because Denis is likely to testify.

Terrigno filed statements of claim against Brad Celmainis and Jonathan Weal in 2024, alleging they had defamed him online.

The alleged defamatory statements included claims that Terrigno assaulted a woman at a “well-known steakhouse in downtown Calgary” and that he was a “friend of people who make racist videos.” Weal later amended his post and removed the latter allegation.

Celmainis and Weal denied liability and pleaded that, if they published the alleged statements, they were true or constituted fair comment. They also relied on videos that they said were relevant to their defences. One video purported to show Denis and others “mocking Indigenous people.” Another purported to show Terrigno calling the person recording him a derogatory name and slapping the phone from her hand.

Terrigno disputed the authenticity of the videos and later retained Denis as his lawyer in the underlying actions.

The respondents then applied to disqualify Denis and his law firm, arguing that Denis appeared in the videos and that they intended to call him as a witness to authenticate them and support their defences of justification and fair comment.

The chambers judge granted the application and disqualified Denis and his firm from acting as counsel. Terrigno appealed the decision to the Court of Appeal.

“The ability of litigants to retain and continue with counsel of their choice is often labelled a ‘right’ … but is subject to some limits,” the three appeals judges wrote.

They said that when a lawyer acts as both advocate and witness in the same matter, it can create a conflict between the lawyer’s interests, the client’s interests, and the lawyer’s duties as an officer of the court.

“The public perception that a lawyer may undermine the truth-seeking function of the justice system in order to obtain an unjust advantage for his client would impermissibly damage the repute of the administration of justice,” the judges said.

Decision

Terrigno raised six arguments on appeal, all of which the judges rejected.

His first argument was that the chambers judge had misinterpreted the applicable law. The appeal court disagreed, saying the judge correctly considered whether a “fair-minded” and “reasonably informed member” of the public would conclude that the proper administration of justice required Denis’s removal.

The judges also agreed that disqualification is justified only when a lawyer is “likely” to be a witness, rather than where testifying is “merely” a possibility.

Terrigno’s second argument was that the chambers judge’s finding that Denis was likely to testify was based on speculation and “self-serving assertions” from Weal and Celmainis.

The appeal court disagreed, noting that the respondents had “repeatedly and consistently” told Denis they intended to call him as a witness. The judges said the chambers judge reasonably concluded that Denis had firsthand knowledge relevant to the authenticity of the videos. They also rejected Terrigno’s argument that the authenticity issue was irrelevant.

Terrigno’s third argument was that Denis was unlikely to testify because a previous judgment had determined that the videos were inauthentic. He relied on a default judgment he had obtained against a different defendant in a separate action.

The judges disagreed, saying Terrigno had not identified any reviewable error and that the chambers judge had no evidence or argument before her establishing why that default judgment applied to the respondents in this case.

Terrigno also argued that the respondents’ application to disqualify Denis was merely tactical. The appeal court said the chambers judge had considered that issue and was “not satisfied” that the respondents’ motives were influenced by bad faith or a strategic purpose.

“It is not the role of this court to re-weigh evidence on appeal,” the justices wrote.

Terrigno’s fifth argument was that, even if Denis was properly disqualified, there was no basis for disqualifying his entire law firm.

The judges disagreed, noting that Denis was “both partner and founder of the firm in question.” They found no reviewable error in the decision to disqualify the firm.

Terrigno’s final argument was that the chambers judge’s reasons were insufficient to explain the decision.

The appeal court disagreed, saying that when the reasons were read “in the context of the record and as a whole,” the basis for disqualifying Denis and his firm was sufficiently clear.