Date: 20120118
Docket: A-219-11
A-331-11
Citation: 2012 FCA 18
Present: STRATAS
J.A.
Docket:
A-219-11
BETWEEN:
PLURI VOX MEDIA
CORP.
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Docket: A-331-11
BETWEEN:
PLURI VOX MEDIA
CORP.
Appellant
and
MINISTER
OF NATIONAL REVENUE
Respondent
REASONS
FOR ORDER
STRATAS J.A.
[1]
The
appellant moves for an order settling the contents of the appeal book. In
support of that motion, the appellant wishes to tender an affidavit of its lawyer
who is also presenting argument on the motion. Leave under Rule 82 of the Federal
Courts Rules, SOR/98-106 is required to do that. Accordingly the appellant
has moved for leave.
A. The
motion under Rule 82
[2]
Rule
82 provides as follows:
|
82. Except with leave of the
Court, a solicitor shall not both depose to an affidavit and present argument
to the Court based on that affidavit.
|
82. Sauf avec l’autorisation
de la Cour, un avocat ne peut à la fois être l’auteur d’un affidavit et
présenter à la Cour des arguments fondés sur cet affidavit.
|
[3]
The
purpose of Rule 82 is to prevent, as much as is reasonably and practically
possible, the invidious circumstances that can arise when lawyers act as both
witnesses and advocates in the same matter. Rule 82 reflects accepted rules of
professional conduct developed by lawyers’ governing bodies across Canada. Accordingly, Rule 82 should be interpreted in light of those rules.
[4]
As
the solicitor in this case is resident in Ontario, it is appropriate to refer
to the Law Society of Upper Canada’s Rules of Professional Conduct on the issue
of lawyers acting as both advocates and witnesses in the same matter. On this
issue, the Law Society of Upper Canada’s rules are very similar to those
existing in other Canadian jurisdictions.
[5]
Rule
4.02 of the Law Society of Upper Canada’s Rules of Professional Conduct
provides as follows:
4.02 (1) Subject to any contrary provisions of the law
or the discretion of the tribunal before which a lawyer is appearing, a lawyer
who appears as advocate shall not submit his or her own affidavit to the
tribunal.
(2) Subject to any contrary provisions of the law or
the discretion of the tribunal before which a lawyer is appearing, a lawyer who
appears as advocate shall not testify before the tribunal unless permitted to
do so by the rules of court or the rules of procedure of the tribunal, or
unless the matter is purely formal or uncontroverted.
[6]
The
rationale for this rule is set out in the accompanying commentary:
A lawyer should not express personal opinions or
beliefs or assert as a fact anything that is properly subject to legal proof,
cross-examination, or challenge. The lawyer should not in effect appear as an
unsworn witness or put the lawyer's own credibility in issue. The lawyer who is
a necessary witness should testify and entrust the conduct of the case to
another lawyer. There are no restrictions on the advocate's right to
cross-examine another lawyer, however, and the lawyer who does appear as a
witness should not expect to receive special treatment because of professional
status.
[7]
Problems
can arise when a lawyer acts on a motion both as a witness on controversial
matters of fact and as an advocate. An unacceptable conflict can ensue:
● On
the one hand, clients expect that their lawyer will be capable of being believed
and trusted by the court. After all, the lawyer is an officer of the court.
● But,
on the other hand, when the lawyer enters the fray by testifying on factual
matters, the lawyer runs the risk of his or her testimony being disbelieved,
with the effect of undercutting the lawyer’s believability and trustworthiness
as an advocate for the client’s cause. Further, the lawyer seems less of an
officer of the court and more as a partisan with a stake in the outcome of the
case. Finally, the lawyer may be in conflict or may appear to be in conflict by
trying to defend his or her own credibility as a witness, rather than
single-mindedly advancing the client’s cause.
Further, a lawyer has certain
obligations of fairness and responsibility as an advocate (see, e.g.,
Rule 4.01 of the Law Society’s Rules of Professional Conduct). Many of these
have the potential to be broken if the lawyer becomes a participant in the
fray.
[8]
When
the Court interprets and applies Rule 82, concerns such as these should be
front of mind. The more that these concerns are present, the more the Court
should exercise its discretion against allowing a lawyer’s affidavit. The Court
should also consider whether the evidence can be supplied by a person other than
the lawyer.
[9]
In
this case, the lawyer wishes to act as a witness by filing his own affidavit on
the motion and to act as an advocate by filing written submissions under his
name on this same motion. Thus, Rule 82 is triggered. The lawyer is in the
position of making submissions based on facts supplied by his own testimony.
[10]
The
situation would be different if the lawyer were to testify in a particular motion
but intends to make submissions at a later motion, trial or hearing, as the
case may be and his testimony does not form part of the evidentiary record in
those later matters. Rule 82 would not apply there. Rule 82 is aimed at the
lawyer who wishes to make submissions in a matter based on facts supplied by
his own testimony.
[11]
Applying
Rule 82 to this case, I note that the lawyer is the sole shareholder of the
appellant. The lawyer’s affidavit merely exhibits three documents for use on
the motion to settle the appeal book. The lawyer’s affidavit does not comment
in any way on the three documents, nor does it recount any other facts that
might be controversial.
[12]
These
three documents are uncontroversial and of minimal importance on this motion:
● The
first two documents exhibited in the lawyer’s affidavit are correspondence
passing among the parties. These merely recount the parties’ positions
concerning the contents of the appeal book.
● The
third document exhibited in the lawyer’s affidavit is simply one of the
documents that the appellant would like to include in the appeal book.
[13]
In
this case, assuming the lawyer has a law partner, associate lawyer,
student-at-law or legal assistant, it would have been preferable if the three documents
were exhibited in an affidavit from one of those persons.
[14]
Given
the uncontroversial nature of these documents, their minimal importance to the
motion, and the straight-forward nature of this motion, I am prepared in the
circumstances of this case to allow the lawyer’s affidavit under Rule 82.
B. Motion
to settle the contents of the appeal book
[15]
The
dispute between the parties concerns three documents. The appellant wishes to
include them in the appeal book. The Crown disagrees, noting that these
documents were not in the record of the first instance court and, therefore,
cannot appear in the appeal book. The Crown also notes that only one of the
three documents was exhibited in the lawyer’s affidavit. As a result, only that
one document is before the Court on this motion. The other two are not properly
before the Court.
[16]
Normally,
only those documents that were part of the record of the first instance court
are eligible for inclusion in the appeal book: Stawicki v. Canada (Canada Revenue Agency), 2006 FCA 262. The three documents that the appellant
wishes to include in the appeal book were not part of the record of the first
instance court. Therefore, they are not eligible for inclusion in the appeal
book.
[17]
Some
of the appellant’s submissions smacked of an attempt to argue that these
documents meet the test for inclusion into the appeal book as fresh evidence.
Rule 351 of the Federal Courts Rules governs that. The applicable test
is whether the evidence was not “discoverable with reasonable diligence before
the end of the trial,” is “credible” and is “practically conclusive of the
appeal”: Canada v. Canada (Canadian Council for
Refugees),
2008 FCA 171 at paragraph 8. If this
three-fold test is not met, Canadian Council of Refugees allows for the
admission of fresh evidence in unusual circumstances where “the interests of
justice require it.”
[18]
In
my view, the appellant has not satisfied the three-fold test. The Crown
submits, and I agree, that the three documents were available and discoverable
before the end of trial. I would add that there are no usual circumstances here
where the interests of justice require the admission of these three documents.
[19]
The
Crown does not otherwise object to the contents of the appeal book proposed by
the appellant in Exhibit 1 of the lawyer’s affidavit. Therefore, the appeal
book shall contain the documents listed in the appellant’s proposal, but not
the three documents that were in dispute in this motion.
[20]
I
would bring to the appellant’s attention that the documents listed in its
proposal are not arranged in the order required by Rule 344(1).
[21]
The
Crown does not seek its costs and so none shall be awarded.
"David
Stratas"
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