Case Report – Ont. C.A. affirms disqualification of counsel for retaining “poisoned” expert

Yesterday, the Ontario Court of Appeal affirmed an order to remove plaintiff counsel in two related actions after it retained a former member of the defendant hospital’s executive team as an expert witness in one of the actions.

It was clear that the expert had retained confidential information attributable to the solicitor-client relationship while in employment with the hospital. The Court analogized her retainer to the transferring lawyer scenario and held that it was appropriate to presume that plaintiff counsel had received the information and that it would work to the defendant’s prejudice. It then applied the Celanese test and held that it was appropriate to disqualify counsel, particularly given that plaintiff counsel “caused the problem” by retaining the expert.

Stewart v. Humber River Regional Hospital, 2009 ONCA 250.

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