Executive Summary: Key Legal and Evidentiary Issues

• Validity of a motion to disqualify employer’s counsel based on her dual role as legal adviser and direct participant in key factual discussions with the employee.
• Weight the court can give to an unfiled recording/transcript of a videoconference when assessing whether counsel will be a necessary witness at trial.
• Threshold for declaring counsel “inhabile” in Quebec: requirement of a real and serious risk to independence, proved by convincing evidence rather than speculation.
• Significance of a one-hour videoconference in which counsel allegedly discussed resignation terms and potential damages, and whether that makes counsel’s testimony “essential” to the merits.
• Appellate review of the trial judge’s exercise of discretion on disqualification in light of the Carrier c. Mayaux standard for “cause réelle et sérieuse”.
• Ability of the court to revisit counsel’s status later if, as the case develops, it becomes clear that she lacks sufficient distance or will need to testify.

Facts of the employment relationship and resignation

Axamit Digital Inc. is a Quebec-based information technology and software development company that employed Pavel Kulikou under successive fixed-term employment contracts. The last of these contracts covered the period from 1 January 2023 to 28 February 2025. In June 2024, the parties began negotiating an extension of this final contract through to 30 June 2025, but they failed to reach an agreement. On 9 August 2024, while no amending agreement was yet concluded, Kulikou informed Axamit of his intention to leave the company and unilaterally terminate his employment as of 7 November 2024. The employer took the position that he could not lawfully resign before the contractual expiry date and a series of emails followed discussing the legality and timing of his resignation. In that context, on 16 August 2024, Kulikou participated in a videoconference conducted in Russian with Axamit’s external counsel, Me Claire Ross, who was acting as the company’s legal adviser. Unbeknownst to her at the time, he recorded this one-hour meeting. After that meeting, Kulikou advanced his resignation date to 27 September 2024.

Subsequent litigation and financial claims

On 31 October 2024, Axamit, represented by Me Ross, sued Kulikou in damages before the Superior Court. The employer alleged that the early termination of the fixed-term contract was illegal, that the employee had deliberately engaged in extension negotiations to conceal his true intention to leave, and that he had improperly shortened the applicable notice period. On this basis, Axamit claimed damages totaling 160,552 dollars, said to include loss of revenue, reputational harm and punitive damages. These figures remained allegations at this stage and were not adjudicated on their merits in the decisions under review. In response, Kulikou filed an initial summary of his defence, asserting that he was entitled to unilaterally terminate the contract and that his conduct had caused no compensable prejudice. On 24 March 2025, he also brought a motion for a declaration of abuse of procedure, claiming 10,000 dollars in moral damages on the theory that Axamit’s lawsuit was a strategic attempt to limit his contractual freedom and intimidate him rather than a bona fide claim.

Motion to disqualify counsel at first instance

On 14 January 2025, Kulikou brought a motion seeking a declaration that Me Ross was “inhabile” (disqualified) from acting for Axamit in the case. He argued that her professional independence was compromised because she was married to Paul Ross, the owner of Axamit Digital Inc., and because she had played a direct role in managing the end of his employment, specifically through her lengthy 16 August 2024 videoconference with him. He wished to rely on that meeting as part of his defence, including alleged statements by Me Ross that could, in his view, reduce the quantum of damages. The Superior Court judge, the Honourable Marie-Eve Bélanger, heard the disqualification motion on 16 May 2025 and delivered an oral ruling the same day. She began by stressing that family ties between counsel and a party, standing alone, are not a sufficient basis for disqualification and that this case was no exception. Instead, she focused on Me Ross’s involvement in the contested facts. The judge accepted that the one-hour videoconference formed part of the chronology of events in dispute, that the employee wished to introduce evidence of statements made by Me Ross to show she tried to persuade him not to resign and made comments relevant to reducing the claimed damages, and that this evidence would be “useful and necessary” to his full defence. Although neither the recording nor any transcript had been filed in the court record, the judge considered that the proof of what was discussed in the videoconference was “essential to the dispute”. On that basis, she concluded that, even if Me Ross did not testify at trial, she would lack the necessary independence as an officer of the court. In the judge’s view, Ross would have to cross-examine Kulikou on the content of their own conversation and then plead those same facts, effectively defending her own potentially compromising statements and her dual role as company counsel and participant in the meeting. The judge reasoned that a reasonably informed member of the public would perceive that Ross lacked sufficient distance to act as ad litem counsel and she therefore granted the motion declaring her ineligible to continue acting in the file.

Appeal framework and additional procedural steps

Axamit sought and obtained leave from a single judge of the Court of Appeal to challenge the Superior Court’s judgment on disqualification. Separately, Kulikou asked for leave to file the transcripts of the 16 August 2024 videoconference as new evidence on appeal, but that motion was dismissed by the Court. When the appeal was heard on 27 February 2026, neither party had placed the recording or a transcript before the appellate bench. The Court of Appeal therefore had to evaluate the disqualification order based only on the existing record and on the general legal framework for declaring counsel “inhabile” in Quebec civil proceedings.

Legal test for disqualification and the Court of Appeal’s analysis

In its reasons, the Court of Appeal recalled the governing principles articulated in the decision Carrier c. Mayaux, emphasizing that disqualification of counsel is an exceptional remedy. The Court reiterated that an order declaring a lawyer “inhabile” can only be made after demonstration of a “real and serious” cause, grounded in convincing evidence; it is not enough to point to a mere risk or possibility of compromised independence. The cause may be actual or probable but must nonetheless be solidly anchored in the record. Against that standard, the Court found that the evidence before the Superior Court judge did not meet the required threshold. The mere fact that the videoconference formed part of the factual sequence in dispute, or that its subject matter might be relevant to some issues, did not by itself amount to a real and serious reason to disqualify counsel. The Court stressed that Kulikou had not drawn any connection between what was discussed in the meeting with Ross and the separate allegations underpinning his motion for a declaration of abusive proceedings. Even if one assumed, for the sake of argument, that the topics discussed in the videoconference were essential to the merits of the employment dispute, the Court held that concerns about Ross’s ability to act as ad litem counsel remained entirely speculative on the record as it stood. Because the recording and transcripts existed but had not been filed or reviewed by either the trial judge or the Court of Appeal, it was impossible to know whether Ross would have to defend or justify any particular statements she made. The Court observed that for all anyone knew, the transcripts might ultimately show that she would not need to cross-examine Kulikou about the meeting or plead at length on its content.

Prospective safeguards and outcome on the disqualification issue

The Court of Appeal noted that if, as the litigation evolved and the evidence was more fully developed, it became clear that Ross lacked the necessary distance from her client or that she would indeed be required to testify as a witness, a judge would remain free to intervene at that later stage and declare her disqualified. The possibility of such a future intervention, with the procedural inconvenience it might cause, did not justify a pre-emptive disqualification order on the basis of conjecture. Given the absence of a real and serious cause supported by convincing proof, the Court concluded that the Superior Court had erred in law and in the exercise of its discretion. It therefore allowed the appeal, with costs, set aside the oral judgment of 16 May 2025 (transcribed on 19 June 2025), and substituted the ruling that should have been made, namely the dismissal of the defendant’s motion for a declaration of ineligibility, again with costs against him.

No discussion of policy terms or specific contractual clauses

In the decisions available, there is no detailed analysis of specific contractual clauses or policy terms analogous to insurance or other standardized policies. The courts refer generally to a fixed-term employment contract, the employee’s alleged right to unilaterally terminate it, and the employer’s assertion that the early resignation was unlawful, but they do not reproduce or parse individual clauses. The appeal is confined to the procedural and ethical issue of counsel’s fitness to act and does not resolve any substantive questions about the interpretation of the employment contract’s termination provisions.

Final resolution, successful party and financial outcome

Taking both the first-instance and appellate decisions together, the only issue actually decided is whether Axamit’s chosen counsel, Me Claire Ross, may continue to represent the company. The Superior Court initially barred her from acting, but the Court of Appeal reversed that outcome, confirming that the evidentiary record did not establish a real and serious risk to her professional independence and leaving open the possibility of revisiting the issue later if the facts warranted. The successful party in the ultimate resolution of the disqualification dispute is Axamit Digital Inc., which obtained the allowance of its appeal and the dismissal of the employee’s motion with costs in its favour. The courts did not, however, adjudicate the underlying damages claim of 160,552 dollars or the employee’s claim for 10,000 dollars in moral damages for alleged abuse of procedure, nor did they quantify the judicial costs ordered. As a result, while Axamit is clearly the successful party on the appeal, the exact total monetary amount of any costs or other financial award in its favour cannot be determined from these decisions.