Executive Summary: Key Legal and Evidentiary Issues

• Scope of the court’s power under article 193 C.p.c. to ensure an equitable process by disqualifying counsel when their continued participation threatens the integrity of the proceedings.
• Application of article 76 of the Code de déontologie des avocats to a lawyer who is both corporate representative and likely key witness on central facts in dispute.
• Extent to which multiple overlapping roles (administrator and representative of the plaintiff corporation, administrator of its law firm, and administrator of a related company occupying the building) undermine the necessary independence and detachment of counsel.
• Probative value and necessity of Me Bernier’s anticipated testimony regarding occupation of the building, dealings with the City, and a prior sworn declaration, and whether the proof could realistically be made otherwise.
• Whether other lawyers in the same firm share insufficient distance from the facts to fairly assess and potentially cross-examine their colleague, thereby affecting public confidence in the administration of justice.
• Limits of disqualification, including the refusal to pre-emptively declare unrelated lawyers who simply rent offices in the same building as inhabile in the absence of any concrete role in the case.

Factual background

The dispute arises out of the use of an immovable located at 66 rue Sault-au-Matelot / 105 rue Saint-Pierre in Québec City (the “Immeuble”). The plaintiff, 9378-3066 Québec inc., is the owner of this property. The main underlying litigation, which is not decided on the merits in this judgment, concerns whether the plaintiff benefits from acquired rights for the use of “services administratifs” (administrative services) on the upper floors of the Immeuble. The City contests the existence of such acquired rights and intends to file a counterclaim seeking an order to cease the allegedly non-conforming use under the Loi sur l’aménagement et l’urbanisme, in addition to penal proceedings already undertaken regarding the derogatory use.
Against this background, the City brings a preliminary application, not on the zoning merits, but seeking to have certain lawyers declared inhabiles (disqualified) from acting in the case. Specifically, the City targets Me François-David Bernier and Me Vincent Boies, as well as all lawyers practising within La Firme Avocats inc. (the “Firme”). The City also asks the court to extend disqualification to other lawyers occupying offices in the same Immeuble.

Roles of the key individuals and entities

Me François-David Bernier occupies several overlapping personal and corporate functions closely tied to the issues in dispute. He is expressly identified as one of the lawyers of record for the plaintiff in this matter. At the same time, he is the sole director and representative of the plaintiff corporation, which owns the Immeuble at the heart of the litigation. He is also the sole director of the Firme, which represents the plaintiff and itself occupies space in the Immeuble. In addition, he serves as the sole director of another company, Baron Lafrenière inc., which also occupied the Immeuble for several years.
The City argues that these interlinked roles make Me Bernier a central factual actor, not merely legal counsel, in relation to the occupation and use of the property, the steps taken with municipal authorities, and a sworn declaration he signed in 2015 about the use of the premises. Given this direct involvement, the City says he is very likely to be called as a witness on essential facts in dispute and is effectively the only person who can testify on certain key matters.

Procedural posture and the City’s application

Relying on article 193 of the Code de procédure civile, the City asks the Superior Court to exercise its authority to ensure the fair conduct of the proceeding and to preserve the integrity of the judicial process by declaring certain counsel inhabiles. The City submits that Me Bernier, because of his multiple roles and his expected testimony, cannot maintain the required distance and independence necessary to act as counsel while also being a key witness.
The City further contends that the other lawyers within the Firme, including Me Vincent Boies, are professionally and organizationally too closely connected to Me Bernier and the Firme’s occupancy of the Immeuble. This, in the City’s view, prevents them from having the necessary detachment to evaluate his testimony objectively or to cross-examine him meaningfully during trial. The City also seeks, more broadly, to disqualify other lawyers who merely have offices in the Immeuble, arguing that they, too, could potentially be implicated as witnesses regarding the use of the premises.

Legal framework on counsel as witness and disqualification

The court begins by setting out the applicable legal framework. Article 193 C.p.c. empowers the court to ensure that the proceedings unfold fairly and that the integrity of the judicial process is protected. In parallel, article 76 of the Code de déontologie des avocats (art. 3.05.06 in the Code’s numbering) obliges an attorney to avoid acting in a dispute where the lawyer knows, or it is obvious, that he or she will be called as a witness. Limited exceptions exist where serious and irreparable prejudice would be caused by the lawyer’s withdrawal, or where the testimony relates only to uncontested matters, questions of form that are unlikely to be seriously challenged, or the nature and value of professional services rendered.
The court notes that there is no absolute right to counsel of one’s choice; disqualification is, however, recognized as an exceptional remedy. It will be justified where the circumstances show that the lawyer’s continued presence may compromise the fairness of the trial or the appearance of justice. This can occur when counsel risks being called as a witness on facts at the heart of the dispute, even if those facts are not the sole cornerstone of the case.

Criteria from jurisprudence on disqualification

Drawing on prior case law, the judgment summarizes the criteria that govern an application to disqualify opposing counsel on the basis that they will be called as a witness. The party seeking to call the lawyer must justify the usefulness, and even the necessity, of that testimony; mere assertion of an intention to call the lawyer is not enough. The intention must be grounded in serious considerations and be real and firmly decided, not a speculative or tactical possibility. The court must consider whether the party could reasonably make its proof through other witnesses or means. The application must also be brought diligently and cannot serve as a vexatious or dilatory tactic.
In applying these principles, the court must evaluate several factors: the lawyer’s personal involvement in the facts in issue, the probability the lawyer will be called to testify, the nature and importance of the anticipated testimony, the risk of conflict between the lawyer’s role as witness and as advocate, and the potential impact on public confidence in the administration of justice.

Application of the law to Me Bernier and the Firme

On the evidence, the court concludes that Me Bernier’s roles are directly connected to the core issues in dispute. He is simultaneously lawyer of record, sole director and representative of the plaintiff corporation, director of the Firme that represents the plaintiff and occupies the Immeuble, and director of another corporation that has also occupied the premises for years. Given this constellation of roles, the court finds that his testimony is not only probable but necessary.
The anticipated testimony would address central disputed facts: the circumstances of the Immeuble’s occupation, the steps taken with the City regarding zoning and usage, and the factual content of the sworn declaration he signed in 2015. The court finds he is essentially the only person who can testify on these matters, and it detects no sign that the City’s intention to examine him is a delay tactic. Indeed, Me Bernier himself requested to be examined in advance (interrogatoire au préalable) by the City rather than agreeing to a proposed list of admissions.
This situation creates a genuine risk of confusion between the roles of counsel and witness. Such a dual role is incompatible with the ethical requirement for independence and distance from the facts, as the lawyer could end up defending his own credibility as a witness while litigating the case. For these reasons, the court concludes that Me Bernier cannot continue to act as counsel in this case.

Impact on other lawyers within the Firme

The court then analyzes the position of other lawyers at the Firme, including Me Vincent Boies. Because they work within the same firm that occupies the Immeuble and whose director and colleague is at the centre of the factual matrix, their professional proximity to Me Bernier and to the relevant events raises serious concerns about their ability to maintain sufficient detachment. The court is particularly concerned about their capacity to evaluate his testimony with the necessary objectivity and to conduct a rigorous cross-examination should that be required during the hearing.
Relying on analogous jurisprudence, the court considers that the integrity of the judicial process would be at risk if lawyers from the same firm continued to act for the plaintiff, given the centrality of their colleague’s anticipated evidence. Accordingly, the court extends the disqualification to Me Boies and all other lawyers practising within La Firme Avocats inc. for the purposes of representing the plaintiff in this matter.

Refusal to disqualify other lawyers in the building

By contrast, the court declines to disqualify other lawyers who merely maintain offices in the same Immeuble but are not members of the Firme and are not parties to this motion. They have not been heard on the application and do not currently represent the plaintiff. Their potential involvement is purely hypothetical; nothing in the record indicates that the plaintiff intends to retain them, nor that they have any present conflict of interest.
The court acknowledges that these other lawyers might conceivably be called as witnesses in the future on matters relating to the use of the premises, in which case the City could raise appropriate objections if they attempt to act as counsel. However, at this stage, issuing a pre-emptive blanket disqualification would be premature and unjustified. The request to extend inhabileté to all other lawyers in the Immeuble is therefore rejected.

Outcome, successful party and monetary aspects

In its formal conclusions, the Superior Court partially grants the City’s application. It declares Me François-David Bernier and Me Vincent Boies, together with all lawyers practising within La Firme Avocats inc., inhabiles to represent the plaintiff, 9378-3066 Québec inc., in the present proceedings. The request to disqualify other lawyers occupying offices in the Immeuble is dismissed. The judgment is rendered “avec frais,” meaning that the City, as the successful party on the essential portion of the motion, is awarded its costs. However, the decision does not specify any precise monetary amount for those costs, nor does it award any damages or other sums on the merits of the zoning dispute. As a result, based solely on this decision, the Ville de Québec emerges as the successful party on this disqualification motion, but the total amount of costs or any monetary award in its favour cannot be determined from the text of the judgment.