Executive Summary: Key Legal and Evidentiary Issues

• Dr. Tahmoures Bahrami commenced a solicitor's negligence claim against his former lawyers, James Jagtoo and Jagtoo & Jagtoo Professional Corporation, arising from their conduct in an underlying injunction motion.
• Central to the dispute is whether Jagtoo deviated from the plaintiff's instructions to settle the injunction motion, instructions that were derived from a second opinion provided by Michael Simaan.
• Jagtoo moved to remove Simaan and Kramer Simaan Dhillon LLP as lawyers of record on the basis that Simaan is a material witness whose dual role as advocate and prospective witness creates an irreconcilable conflict.
• Rule 5.2-1 of the Law Society of Ontario's Rules of Professional Conduct prohibits a lawyer appearing as advocate from also testifying, unless permitted by law or the tribunal.
• Applying the flexible, multi-factor test from Essa (Township) v. Guergis, the court found that the majority of factors favoured removal.
• No specific costs amount was determined in the decision; the parties were directed to exchange written costs submissions by the deadlines set by the court.

Facts of the case

Dr. Tahmoures Bahrami and his registered medical practice retained James Jagtoo and Jagtoo & Jagtoo Professional Corporation ("Jagtoo") to represent them in an action against Tians Medical Services Inc. and others for damages for breach of contractual obligations and for various declarations and injunctive relief (the "Tians Action"). During the course of that retainer, an urgent interlocutory injunction motion was brought on behalf of the plaintiff. Between October 31 and November 15, 2022, Dr. Bahrami sought a second opinion from Michael Simaan of Kramer Simaan Dhillon LLP ("KSD LLP") regarding the Tians Action and the injunction motion. According to the plaintiff's evidence, the settlement instructions he subsequently gave Jagtoo on November 15, 2022 were cut and pasted from an email he received from Simaan. The plaintiff alleges that Jagtoo added terms to the settlement offer that rendered it unacceptable to the Tians defendants, and that no settlement was reached as a result.

The injunction motion was ultimately dismissed by Justice Sugusnari on April 28, 2023, and the plaintiff was ordered to pay costs of $40,830.97 to the Tians Action defendants. On May 1, 2023, the plaintiff advised Jagtoo he would be seeking new legal representation. Simaan and KSD LLP were formally appointed lawyers of record in the Tians Action on May 26, 2023. On or about June 15, 2023, the plaintiff settled the Tians Action on the basis of a discontinuance of all claims in exchange for a reduction of the costs payable on the injunction motion to $30,000. Simaan and KSD LLP represented the plaintiff throughout those settlement negotiations. The plaintiff subsequently commenced the within action against Jagtoo for solicitor's negligence, with Simaan and KSD LLP acting as his lawyers of record. The plaintiff's damages claim of $50,000 includes the $30,000 paid to the Tians Action defendants to settle that action.

Professional conduct rules at issue

Rule 5.2-1 of the Law Society of Ontario's Rules of Professional Conduct provides that a lawyer who appears as an advocate must not testify or submit their own affidavit evidence before a tribunal "unless permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or the matter is purely formal or uncontroverted." The commentary under that rule further states that a lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. While these Rules are not binding on the court, the court recognized them as a persuasive and important statement of public policy, citing Mazinani v. Bindoo, 2013 ONSC 4744, and MacDonald Estate v. Martin, 1990 CanLII 32 (SCC).

Reasoning and analysis

Associate Justice Brown applied the flexible, multi-factor test established in Essa (Township) v. Guergis; Membery v. Hill, 1993 CanLII 8756, and confirmed in subsequent decisions, to determine whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required removal of Simaan and KSD LLP.

On the stage of proceedings, the court found the motion was brought in March 2025, approximately 18 months after the action commenced and shortly after examinations for discovery revealed the full scope of Simaan's involvement. The court accepted that the motion was brought as early as it reasonably could have been, and that this factor favoured the moving defendants.

On the likelihood that Simaan would be called as a witness, the court found a real basis to believe he could likely provide material evidence — both in relation to the second opinion advice given between October 31 and November 15, 2022, and in relation to the subsequent carriage of the Tians Action and negotiation of the settlement. The court specifically noted an email in which Simaan recommended that Dr. Bahrami consider walking away from the Tians Action, which directly bore on issues of mitigation and the reasonableness of the settlement achieved. The court rejected the plaintiff's position that Simaan's emails alone were sufficient and that his live evidence was unnecessary.

The court found the motion was brought in good faith and that the evidence to be led was of significant importance, as it went to core issues of negligence, mitigation, and damages. As to the impact on the plaintiff's right to counsel of choice, the court noted that the plaintiff filed no evidence of prejudice, and given the early stage of the proceedings, found this factor only nominally favoured the plaintiff. The trial being by judge alone under the simplified procedure was treated as a neutral factor. The court further found, applying the reasoning in Urquhart v. Allen Estate [1999] O.J. No. 4816 (S.C.J.), that Simaan's dual roles as advocate and prospective witness could not be reconciled and that there was a likelihood his evidence would be tainted. On the final factor — the connection between counsel, the prospective witness, and the parties — the court held that this factor alone was sufficient to justify removal, citing 8657181 Canada Inc. v. Mehdi Au LLP, 2021 ONSC 1295, and Karas v. Ontario, 2011 ONSC 5181.

Ruling and overall outcome

Having found that the Essa factors overwhelmingly favoured removal, Associate Justice Brown granted the defendants' motion. Michael Simaan and Kramer Simaan Dhillon LLP were ordered removed as lawyers of record for the plaintiff, Dr. Tahmoures Bahrami. As the successful party, Jagtoo was awarded costs of the motion; however, no specific costs amount was fixed in the decision. The parties were directed to exchange written costs submissions — defendants by June 5, 2026, and the plaintiff by June 12, 2026 — failing agreement, with final submissions to be filed by June 26, 2026.