Case snapshot
At a glance
- Case
- Can You Force a Lawyer to Testify in Ontario Civil Litigation?
- Court / Tribunal
- Ontario Superior Court of Justice
- Citation
- 2026 ONSC 4520 ↗
- Date
- August 5, 2026
- Area of law
- Litigation Law
- Key issue
- Whether a court should grant leave under Rule 31.10 to examine a non-party solicitor for discovery, and whether solicitor-client privilege bars that examination.
- Outcome
- The motion for leave to examine the non-party solicitor was dismissed; admissibility of any solicitor testimony was deferred to the trial judge.
- Why it matters
- If you are in civil litigation and hope to compel a lawyer to testify at discovery, this decision clarifies the high bar you must clear and how privilege protects communications even in joint-retainer situations.
Legal principle
The rule from this case
Under Rule 31.10 of Ontario's Rules of Civil Procedure, a party seeking to examine someone who is not a party to the lawsuit must satisfy the court on two fronts: first, that the information genuinely cannot be obtained from the parties themselves; and second, that examining the non-party is in the interests of justice and fairness. Courts apply this rule strictly, and the moving party's failure to exhaust other avenues — including examining the opposing party — will ordinarily sink the motion. Solicitor-client privilege remains a powerful shield even after a client's death, and it does not evaporate simply because a retainer was shared between two clients. When a lawyer acts for two people together (a joint retainer), those two clients cannot claim privilege against each other — but a third person, such as a spouse who was never part of that retainer, has no right to pierce the privilege. The court distinguished the joint-interest and wills exceptions to privilege and found neither applied on the facts before it.
Important limits
What this does not mean
This decision does not mean a non-party solicitor can never be compelled to testify in Ontario litigation. The court expressly noted that the solicitor remains compellable as a witness at trial; it simply refused to allow a pre-trial examination for discovery at this stage. Admissibility of whatever the solicitor might say is a separate question left entirely to the trial judge. The ruling also does not stand for the proposition that joint retainers eliminate privilege in all directions. Privilege still protects joint-retainer communications against outsiders — including family members who were not clients. Only the two (or more) clients who shared the retainer lose the ability to claim privilege as between themselves.
Can a Party Force a Non-Party Lawyer to Be Examined Before Trial in Ontario?
No — not without satisfying a strict two-part test, and courts will dismiss the motion if the moving party has not first tried to get the information from the parties themselves. In De Miranda et al. v. King, 2026 ONSC 4520 (CanLII), the Ontario Superior Court of Justice refused to grant leave to examine a solicitor who was not a party to the lawsuit, finding the requirements of Rule 31.10 had not been met.
What Is Rule 31.10 and Why Does It Matter?
Rule 31.10 is the procedural gateway for examining a non-party witness before trial in Ontario civil litigation. It matters because discovery is normally limited to the parties themselves — you cannot simply summon anyone with useful knowledge and question them under oath before a trial begins.
To get leave under Rule 31.10, the moving party must show two things: (a) the information they want is not reasonably available from the parties to the lawsuit, and (b) examining the non-party is in the interests of justice and fairness. Both conditions must be satisfied. If the information could come from a party — including through a proper examination for discovery of the opposing side — the motion will typically fail at the first hurdle.
What Happened in This Case?
The moving party sought to examine a solicitor who had previously acted for others involved in the dispute. The court found that the moving party had not demonstrated an inability to obtain the relevant information from the plaintiffs themselves. The plaintiffs had also declined to waive privilege, which the court treated as a relevant factor when weighing interests of justice and fairness.
Because the first requirement under Rule 31.10 was not met, the motion was dismissed. The court did not need to go further, though it addressed the privilege and hearsay issues that were also argued.
Does Solicitor-Client Privilege Survive a Client’s Death in Ontario?
Yes — solicitor-client privilege generally survives the death of a client in Ontario. The court reaffirmed principles drawn from leading authorities, including Descoteaux and Goodman Estate, confirming that privilege does not automatically dissolve when a client dies. This is an important protection: it means a deceased person’s confidential communications with their lawyer remain protected unless a recognized exception applies.
The court considered two possible exceptions — the wills exception and the joint-interest exception — and found neither applied on the facts of this case.
Does a Joint Retainer Remove Privilege Against Everyone?
No — a joint retainer removes privilege only as between the clients who shared it, not against the rest of the world. When a lawyer acts for two clients together, those two clients cannot later claim privilege against each other regarding communications made during that shared retainer. That makes sense: both were present, both were clients, and neither has a secret to keep from the other.
However, a spouse or other family member who was not a party to the joint retainer has no right to access those communications. The privilege still stands against outsiders. The court drew this distinction carefully, rejecting the argument that a non-client spouse could use the joint-retainer framework to pierce privilege.
Can the Solicitor Still Testify at Trial?
Possibly — but that question was left for the trial judge to decide. The court noted that the solicitor remains compellable as a witness at trial, meaning a party can subpoena them to appear. Whether any particular evidence the solicitor might give is admissible — including concerns about hearsay — is a separate legal question that the trial judge will resolve in context.
This is a meaningful distinction. Refusing discovery does not mean the solicitor’s evidence will never be heard; it means the pre-trial examination route was closed on these facts.
Practical Takeaways for Parties in Ontario Civil Litigation
- Exhaust party examinations first. Before seeking leave to examine a non-party under Rule 31.10, make sure you have genuinely tried — or can show you cannot obtain — the same information from the parties themselves. Courts will not let you skip that step.
- Privilege is durable. Solicitor-client privilege survives death and is not automatically waived by a joint retainer. If you are relying on an exception, be prepared to argue exactly which exception applies and why.
- Joint retainers have limits. If you were not one of the clients in a joint retainer, you cannot use the joint-retainer concept to access those communications. The privilege protects against non-clients.
- Discovery and trial are different stages. Losing a Rule 31.10 motion does not necessarily mean losing access to a witness at trial. The compellability of a non-party at trial is a separate issue.
- Get legal advice early. Privilege disputes and non-party discovery motions are procedurally complex. If you are involved in litigation where a lawyer’s communications may be relevant, learn more about UL Lawyers’ civil litigation practice.
If your matter involves a civil dispute, contact UL Lawyers to discuss whether the firm’s civil litigation team may be able to assist.
This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.
FAQ
Frequently asked questions
Under Rule 31.10, you must show the court that the information you need cannot reasonably be obtained from the parties to the lawsuit, and that examining the non-party is in the interests of justice and fairness. Both conditions must be satisfied before leave will be granted.
Generally no — solicitor-client privilege survives the death of a client in Ontario. There are narrow exceptions, such as the wills exception, but courts have confirmed that privilege does not automatically disappear upon death.
No. When two clients share a joint retainer, they cannot claim privilege against each other for communications made during that shared representation. However, the privilege still protects those communications against third parties who were not part of the retainer.