Butterfield v. Canada (Attorney General), 2005 FC 396

Date: 20050321

Docket: T-5-05

Citation: 2005 FC 396

BETWEEN:

                                                         AIDAN BUTTERFIELD

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

HARGRAVE P.

[1]         Mr. Butterfield has three current judicial review proceedings, this proceeding, T-5-05 and proceedings T-2056-04 and T-2057-04, which involve a penalty arising out of his private aeroplane pilot's licence. By the present motion, Mr. Butterfield, a very recently called lawyer, wishes leave of the Court to speak to his own affidavits, in the three proceedings, both now and in the future.

CONSIDERATION

Control of Procedure

[2]         This motion, which is on scanty material, is not opposed by counsel for the Attorney General. However, that does not end the matter, for discretionary orders, even those on consent or,

as here, unopposed, do not go automatically as it is for the Court to control its own practice and procedure.

[3]         By way of illustration, of an extreme instance in which the Court pointed out that it could control its own procedure, even in the face of a consent, is Liu v. Canada (Minister of Citizenship and Immigration) (1994) 88 F.T.R. 183, a decision of Mr. Justice Muldoon. There he was faced with a consent, on the part of the Crown, to grant a judicial review application, resulting in this response as to the ability of a court to control its own practice and procedure:

The Respondent purported to consent to leave being granted. Such consents are worthless, a big zero. The illustration one might have is: try going to the Supreme Court of Canada and consenting to leave saying "No matter how you want to control your agenda, Supreme Court of Canada, you will have to hear this case because the respondent is consenting." I think that that would make for a very sudden rejection, and so it is in the Federal Court.

                                                                                                                                   [p. 184]

The concept here is that the agenda of the Court, being a matter of practice and procedure, is for the Court itself to control.

[4]         This concept of discretion, to control practice and procedure, resting with the Court itself, was dealt with by Mr. Justice of Appeal Lambert in McAlpine v. Bachop (1987) 12 B.C.L.R. (2d) 30, there being a suggestion that the chambers judge had made an order contrary to an agreement of counsel. Justice of Appeal Lambert wrote:

I have no doubt in my mind that the power rests with the Supreme Court, through the chambers judges and the judges conducting the trials, to control all matters of practice and procedure in the court. That power cannot be taken away from the court through the agreement of counsel. Of course, if counsel reach an agreement that is binding on the parties, that agreement may be enforceable, or a party may be estopped from denying the rights asserted by the other. But as far as matters of pure practice and procedure are concerned, the jurisdiction of the court must remain and cannot be taken away by the agreement of counsel on a matter purely of practice or procedure. In my opinion, this was such a matter, purely of practice and procedure, and it was a matter of what is usually called "discretion", on the part of the chambers judge. By "discretion" I understand that the chambers judge must act judicially and must consider all the relevant factors, but if he does that, then the matter is one of discretion if it is impossible to say that any of the alternative answers to the point before him is wrong. The answers are of course, different, but the matter is one of discretion if there is nothing in the law that rules the question of whether the answer is right or wrong. I consider that there is no such question of principle involved in this case, but a matter of practice and procedure to which different situations would lend themselves to different answers.

                                                                                                                                     [p. 33]

Here the Court of Appeal teaches that the discretion of a chambers judge cannot be taken away, as to matters of practice and procedure, merely through the agreement of counsel. In the present instance there is no agreement between counsel, but rather a case of one counsel taking no position. To continue, in McAlpine, what was at issue was the discretion on the part of the chambers judge, which must be exercised judicially with the judge to consider all of the relevant factors.

[5]         The Supreme Court of Canada, in [1980] 1 S.C.R. 821">Solosky v. The Queen [1980] 1 S.C.R. 821 at 832 commented upon a declaratory action as being discretionary, but that in looking at discretion one must consider the utility of the remedy and whether, if the remedy were granted, it would settle the questions at issue between the parties.

Use of Solicitor's Affidavit

[6]         Mr. Butterfield, in his representations, to allow him to speak to his own affidavit, submits that there is an inconsistency between Rule 119 and Rule 82, the former allowing an individual to act in person and the latter requiring a solicitor to obtain leave of the Court before speaking to his or her own affidavit. Here there is no inconsistency, in the way suggested by Mr. Butterfield, that is that in acting as a lay litigant he might speak to his own affidavit, but in acting as a solicitor he may not, for the law is settled, that even a lay litigant ought not to speak to his or her own affidavit. This is a point made by Lord Campbell in Cobbett v. Hudson [1852] 1 El. & Bl., 118 E.R. 341, but Lord Campbell did recognize that while it was objectionable and contrary both to good taste and good feeling for a lay litigant to act as both an advocate and a witness, there was no absolute bar. Federal Court Rule 82 recognizes that counsel and by extension a lay advocate may, with leave, act as a witness.

[7]         Rule 82 provides that:

I would make three points about Rule 82. First, it provides a discretionary remedy. Second, the Rule goes to practice and procedure. Third, the Rule is not designed to give overall and general leave for counsel to speak to all affidavits, both present affidavits with a known content and future affidavits with an unknown content, but rather it refers to "an affidavit" and to presenting argument "based on that affidavit.". This last observation is of relevance, for sometimes counsel is both an appropriate person to swear the affidavit in question and that can do no damage where the content is not contentious. In other instances, where the affidavit might be subject to cross-examination, or the Court might have pointed questions on the evidence in counsel's affidavit, it would be completely improper and an embarrassment for counsel to speak to his or her own affidavit, leaving opposing counsel to take issue with counsel's evidence and the judge to make a choice between the affidavit of an independent witness and the affidavit of counsel, again a clear embarrassment no matter what the outcome.

[8]         In Lex Tex Canada Ltd. v. Duratex Inc. (1979) 42 C.P.R. (2d) 185 Mr. Justice Addy commented on the impropriety of counsel testifying on behalf of a client, which in his view, whatever the motive, was completely improper and unacceptable where it might open up counsel to cross-examination.

[9]         To carry this a little farther, it has never been in the interest of the legal profession that counsel comment upon evidence given by another counsel in the same action, for the situation would then lead for the judge being called upon to discuss with counsel the weight to be given to his or her evidence, a complete impropriety: see Bell Engine Co. v. Gagné [1914] 7 W.W.R. 62 at 62 (Sask. S.C. en banc). There Mr. Justice Brown, endorsed the view of the trial judge that counsel giving evidence was "... not only inimical to the administration of justice but was so calculated to shake the confidence of the public in the administration that it should not merely be discourage but should not be allowed.". Mr. Justice Brown then had this to say in approving the approach taken by the trial judge:

I am in full accord with the remarks of the learned trial judge to the effect that such a practice should be discouraged, and that counsel should not put themselves in a position where it would be necessary to act in the capacity of counsel and witness in the same case. It is not in the interests of the legal profession that counsel should be required to comment on the evidence given by brother counsel engaged as such in the same action, and moreover, the Bench should not be called upon to discuss with counsel the weight to be attached to evidence offered by the counsel himself. The giving of such evidence must have the effect of preventing a full and free discussion on the part of both counsel and Bench, and to that extent, at least, serves to hamper the proper administration of justice. There is the further feature, which is emphasized by the trial judge - as it affects the public mind.

Thus there is not only the aspect of the embarrassment as between members of the Bar and between the Bench and the Bar, but also the effect of counsel giving evidence upon the public mind and here Mr. Justice Brown referred to a passage from the then current edition of Wigmore at page 2535 as to the dangerous practice of counsel giving evidence:

It is concerned with the dangerous practice upon the public mind. In short, it does not fear that lawyers may as witnesses distort the truth in favor of the client, but it fears that the public will thinkthat they may, and that the public's respect for the profession and confidence in it will be effectively diminished. This is at once the most potent and most common reason judicially advanced.

                                                                                                              [p. 63 of Bell Engine]

[10]       This concept, that lawyers should not also be witnesses, is not absolute and that is a point which Mr. Justice Brown goes on to make, beginning with the view of Chief Justice Lord Campbell in Cobbett v. Hudson (supra at 11 and 342):

We may hope that, without any positive rule against a party addressing the jury and being examined as a witness on oath on his own behalf, a practice so objectionable is not likely to spring up; for it is not only contrary to good taste and good feeling, but, as it must be revolting to the minds of the jury, it will generally be injurious to those who attempt it.

In the result Lord Campbell allowed a new trial, for he felt that the plaintiff, who had wished to act as his own advocate, ought not to have been barred from addressing the jury and he made that determination being "... fully aware of the inconvenient consequences which must follow from a party to a suit being alternately during the trial advocate and witness; and we express our strong disapprobation of such a practice." (p. 12/341). In effect the Court of Exchequer Chamber did, much against its own views, allow a lay litigant to be both advocate and witness. Similarly, in Bell Engine the Saskatchewan Supreme Court, en banc, did allow counsel to give evidence.

[11]       The Federal Court has been somewhat more absolute in many instances: and here I have in mind College Marketing and Research Canada v. Volkswagenwerk Aktiengesellschaft (1981) 53 C.P.R. (2d) 37 at 40 for the proposition that counsel is not competent to conduct litigation in which he or she is a witness. Indeed, in the case of a substantive motion the affidavit of counsel will either be ignored or struck from the record:

In support of this motion for extended time is the affidavit of Leslie H. Morley, the applicant's solicitor herein. This is a bad practice, as noted in Martinoff v. Gossen, [1978] 2 F.C. 537 at p. 542 (Collier, J.) and in Lex-Tex Canada Limited v. Duratex Inc., [1979] 2 F.C. 722 at p. 723 et seq. (Addy, J.). The present motion is a procedural not a substantive one. Otherwise the solicitor's affidavit would be just ignored, or itself, struck from the record. As stated by Mr. Justice Addy in the Lex-Tex case ...

[Aguiar v. Canada (Minister of Citizenship and Immigration) (1995) 106 F.T.R. 304 at 305]

Even in an instance in which the affidavit of counsel is accepted, it should be given little weight: see for example Patel v. Canada (Minister of Citizenship and Immigration) (1996) 103 F.T.R. 21 at 22-23. There an application for judicial review was supported by the affidavit of the applicant's solicitor or record. Mr. Justice Cullen said:

In my view, it is wholly inappropriate for solicitors to submit their own affidavits in support of an application for judicial review. Although I will consider the application on its merits, I give Mr. Dewji's affidavit very little weight.

                                                                                                                                   [loc cit.]

[12]       In Shipdock Amsterdam B.V. v. Cast Group Inc. (2001) 179 F.T.R. 282 Mr. Justice O'Keefe dealt with Rule 82, which I have set out above. In that case Mr. Justice O'Keefe took a hard line, at one point noting that, in the case of the matter in question "... that should a solicitor in a firm depose to facts in an affidavit and the affidavit is filed for use on a motion then another member of the firm should not argue the motion." (p. 286). In reaching this conclusion Mr. Justice O'Keefe quoted at length from Canada (Director of Investigation & Research) v. Irving Equipment (1986) 16 C.P.R. (3d) 26 at 30-31:

There are at least three good reasons for rejecting affidavits sworn by solicitors and counsel for a party. First, everyone including the speaker has the right and obligation to be perfectly clear about whether he or she speaks as a witness or as a professional adviser. Secondly is the possibility of conflict with professional responsibility. Affidavits like oral testimony are expressed solemnly upon oath or the legal (if not moral) equivalent thereof. No counsel or solicitor, who is, after all, an officer of the court, ought ever to place himself or herself into the quandary of risking a conflict of interest between remunerative (but yet honourable) advocacy and possibly unpalatable truth sworn on oath. See s. 11(3) of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.). No witness can deal objectively with the weight or credibility of his own testimony. Lawyers for opposing parties ought not to be exigible to cross-examination by each other, for fear of sacrifice of one role for the other, or the lamentable appearance of such sacrifice. Third, unless the solicitor or counsel obtain the previous blanket absolution of the client, then he or she will be obliged to assert the client's solicitor-and- client privilege mentally when formulating the affidavit and, or course, orally only when being cross-examined on it. As was stated by Addy J. in the Lex Tex case at p. 186 C.P.R., pp. 723-4 F.C.

Whatever might be the motive for doing so, it is completely improper and unacceptable for a solicitor to take an affidavit even in an interlocutory matter where he attests to matters of substance and might therefore expose himself to being cross-examined on matters covered by solicitor-and-client privilege.

Here counsel for the respondents has placed them in the jeopardy of having the affidavit in support of their serious, urgent and important motions utterly rejected because he is the deponent. Counsel for the applicant does not actively oppose the respondents' motions, but is instructed not to consent to them. His posture here does not incline against receiving the affidavit sworn by counsel in each proceeding. Counsel for the applicant notes that his adversary has come from Saint John, New Brunswick, to present the respondents' urgent and important motions in Ottawa and generously moved that the affidavit be received and accepted in each matter before the court. So be it, on this one occasion only, but never again, without the most compellingly persuasive reasons which can hardly be imagined.

Here, in Irving Equipment, Mr. Justice Muldoon gives three reasons for rejecting affidavits sworn by solicitors and counsel for a party: first, the right and obligation to be perfectly clear whether a person speaks as a witness or as a professional advisor; second, the possibility of conflict with professional responsibility, a position in which no counsel or solicitor, as an officer of the Court, ought ever to be in; and third, a solicitor or counsel swearing an affidavit will then be obliged to assert solicitor and client privilege, both in the affidavit and during cross-examination, a completely improper and unacceptable situation. Mr. Justice Muldoon did find that there was a reason to accept the particular affidavit in Irving Equipment but concluded "... on this one occasion only, but never again, without the most compellingly persuasive reasons which can hardly be imagined.". However, I would observe that in Shipdock Amsterdam Mr. Justice O'Keefe did suggest that where a solicitor is the only individual who can depose to certain facts, it would be acceptable for counsel to depose to the facts and then appear as counsel, using the affidavit on the motion, but in the outcome he in fact struck out the affidavits for as he had earlier observed, one solicitor in a firm ought not to swear an affidavit for use on a motion by another member of the firm.

[13]       To the same effect as Shipdock Amsterdam see Aussant v. Canada (Minister of Health and Welfare) (2002) 226 F.T.R. 25, in which Mr. Justice Hugessen dealt with an affidavit of the solicitor for the plaintiff. He characterized it as clearly improper, for it was not limited to matters of form and thus there was no good reason to grant leave pursuant to Rule 82: here in Aussant we have a standard for granting leave to speak to one's own affidavit under Rule 82, that of a good reason.

[14]       The use of one's own affidavit on a motion, or even an instance of counsel speaking to an affidavit sworn by an associate, can have serious ramifications. Here I have in mind Murugappah v. Canada (Minister of Citizenship and Immigration) (2000) 184 F.T.R. 267, a decision of Mr. Justice Pelletier, as he then was. In that instance he considered the removal of counsel for the reason that an associate of counsel had filed an affidavit. He decided that removal of counsel, as a general rule, would create much inconvenience in some instances and then went on, at page 271, to take the view that removal of counsel, given that parties were entitled to counsel of their own choice, should be a step taken in only the most serious of cases. He did observe, that in applying Rule 82 "The Court might well require counsel to show why the evidence cannot come from another source and how the mischief sought to be avoided by the Rule, as set out in IBM Corp. v. Printech ... [(1994) 69 F.T.R. 197] ... will be avoided in that particular case.". In Printech Mr. Justice Nadon (as he then was) commented first on the instance in which a lawyer might argue on the basis of his or her own affidavit, which should not occur except in special circumstances (p. 201), however he was also asked to consider the situation where other lawyers in the same firm, not counsel, had sworn affidavits. In summary, Mr. Justice Nadon was not prepared, at an early interlocutory stage, to make a ruling one way or the other, but felt that should be left to the trial judge, because of the uncertainties in the interim and at trial, as to the use of the affidavit.

[15]       The above summary, of Mr. Justice Nadon's view as to premature determination, leads to the view that it would be premature to make a blanket order allowing Mr. Butterfield to swear affidavits throughout this proceeding and then to speak to those affidavits: this was a point made by the Ontario Court of Appeal in Essa (Township) v. Guergis: Membrey v. Hill (1993) 15 O.R. (3d) 573.

[16]       Mr. Justice Nadon, who had initially refused to deal with the issue of counsel and deponents from the same firm at an interlocutory stage in Printech, had the opportunity to revisit the issue in Imperial Oil Ltd. v. Lubrizoil Corporation (1998) 86 C.P.R. (3d) 331 where he referred to the enormous waste of time and money and the delay which can occur through an order removing solicitors and such should only be done in clear cases (p. 381). While Mr. Justice Nadon approved removing solicitors of record, in certain instances, where affidavits were improperly sworn by

members of the firm, he was against making a premature order but he did endorse the principle in Shipdock that "... should a solicitor in a firm depose to facts in an affidavit and the affidavit is filed for use on the motion, then another member of the firm should not argue the motion." (Lubrizoil at p. 286).

[17]       All of this is not to say that counsel of record may not suffer some sanctions when partners and solicitors have sworn affidavits which will be used in a judicial review proceeding. In Bojangles' International LLC v. Bojangles Café Ltd., an unreported 21 February 2005 decision, T-1466-04, 2005 FC 272, counsel of record were allowed to remain as such on condition that they brought in outside counsel to prepare written argument and to make oral argument at the eventual hearing.

CONCLUSION

[18]       The case law indicates that counsel, or a lay litigant acting as advocate, is not incompetent to swear an affidavit and then to speak to the affidavit, but such is a circumstance to be avoided and all the more so when the affidavit is as to substantive matters. However, under Rule 82 leave may be granted to counsel, by way of a discretionary order, to speak to his or her own affidavit, if there is good reason to do so.

[19]       It would be inappropriate to make the present blanket order, as sought by Mr. Butterfield, allowing him to speak to his own affidavit throughout this ongoing judicial review application, for to do so would not so much fetter the discretion of a judge or prothonotary dealing with the ongoing

proceeding, but rather would entirely remove discretion, to the result that judges or prothonotaries in this matter would be unable to control their own practice and procedure in each future instance. In the result, in each instance in which Mr. Butterfield wishes to speak to his own affidavit, he will have to seek the leave of the presiding judge or prothonotary, which leave seeking might be in advance where much hinges on the outcome, or which might be at the outset of the motion itself, if the matter is of less moment.

[20]       In the present instance there is a pending motion in writing seeking various relief including consolidation of several proceedings, availability of a transcript of the tribunal's proceeding, the filing of additional affidavits and time extensions. There is utility in taking into account Mr. Butterfield's affidavit material, however where there is any conflict with opposing affidavit material, I will weigh Mr. Butterfield's material accordingly.

[21]       Mr. Butterfield has been successful, to a degree. However Crown counsel, who took the time and showed the interest to attend, advised she was taking no position. That approach was appropriate, for a consent would have little or no bearing, the matter involving a discretionary control by the Court of its own practice and procedure. The motion being unopposed and the result only in part being what Mr. Butterfield sought, costs will be in the cause.

(Sgd.) "John A. Hargrave"

    Prothonotary

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-5-05

STYLE OF CAUSE: Aidan Butterfield v. Attorney General of Canada

PLACE OF HEARING:                                 Vancouver, BC

DATE OF HEARING:                                   March 21, 2005

REASONS FOR ORDER :                          HARGRAVE P.

DATED:                     March 21, 2005

APPEARANCES:

Mr. Aidan Butterfield                                         FOR APPLICANT

Ms. Sharon Steele                                             FOR RESPONDENT

SOLICITORS OF RECORD:

Aidan Butterfield                                                FOR APPLICANT

Vancouver

John H. Sims, Q.C.                                           FOR RESPONDENT

Deputy Attorney General of Canada