Gary Joseph  |  Apr 2025

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

How do you get off the record when there is no record??? With court proceedings, when the solicitor client relationship breaks down or conflict arises, a motion is brought to the Court with a request to get off the record. There is much case law that addresses when counsel can and cannot get off the record.

In the 2010 decision of the Supreme Court of Canada in R v Cunningham 2010 SCC 10, the court explores the legal and ethical issues that arise when counsel wishes to withdraw. The court notes that the timing of the request and the reason for the request are relevant to whether an order will be granted to the lawyer. Ethical concerns are likely to result in an order removing counsel, non-payment less so. Proximity to a major litigation event will mitigate against an order.   The court confirms the residual jurisdiction of Superior Courts to deal with this issue and notes that statutory courts also have jurisdiction to deal with such motions. I recognize that this is a case in criminal law but the reasoning I submit applies in family law matters.

Now consider the context of a desire of counsel to withdraw from representation of a client in an arbitration. Does the arbitrator have jurisdiction to deal with the request? Can counsel simply write a letter resigning or is a motion necessary? The arbitrator’s jurisdiction flows from the Arbitration Agreement. Rarely do such agreements specify the particular motions that can be brought. But I would argue that like a statutory court the arbitrator has some form of residual jurisdiction to deal with such requests. I strongly suggest that a letter resigning is not acceptable. Section 17 of the Arbitration Act (Ontario) permits the arbitrator to rule on matters of his/her own jurisdiction. Section 20 permits the arbitrator to determine procedure for the arbitration and section 31 permits the arbitrator to apply matters of both equity and law. Surely that combination of statutory provisions plus comments from the Cunningham case would support an argument that the arbitrator has jurisdiction to consider motions to get off the record.

A final point arising from the Cunningham case is the Court’s acknowledgement that both the Courts and the applicable Law Society have a separate and distinct role in consider requests to get off the record. Counsel may get a Court order removing him/herself from the record but the conduct may attract review and possible discipline from a Law Society notwithstanding a court’s ruling!!



Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.