Rip
T.C.J.
:
The
respondent,
Her
Majesty
The
Queen,
by
her
counsel
has
moved
for
an
order
that
the
Court
award
the
respondent
costs
incurred
since
June
1,
1997
on
a
solicitor
and
client
basis
in
accordance
with
paragraph
147(5)(c)
of
the
Tax
Court
of
Canada
Rules
(General
Procedure).
Lucinda
Vandervort
filed
two
Notices
of
Appeal
with
the
Tax
Court
of
Canada,
one
Notice
of
Appeal
was
with
respect
to
her
appeals
from
assessments
for
1987,
1988
and
1989
taxation
years
and
the
second
Notice
of
Appeal
was
with
respect
to
her
appeals
for
1990,
1991,
1992,
1993
and
1994
taxation
years.
Within
a
week
of
the
appeals
being
scheduled
to
be
heard,
Ms.
Vandervort
discontinued
her
appeals.
The
respondent
complains
that
since
at
least
May
1,
1997,
Ms.
Vandervort,
a
professor
of
law,
knew
that
there
was
no
legal
basis
on
which
she
could
succeed
in
her
appeals
and
the
respondent
incurred
unnecessary
costs
in
preparing
for
the
appeals.
Ms.
Karen
Janke,
a
solicitor
with
the
Department
of
Justice,
appeared
on
behalf
of
the
respondent.
Ms.
Janke,
as
an
officer
of
the
Court,
informed
me
as
to
what
transpired
on
these
appeals
since
about
May
1,
1997.
The
respondent
did
not
produce
any
affidavit
on
the
motion
nor
did
the
respondent
call
any
witness
to
give
viva
voce
evidence.
The
issue
in
the
motion
was
whether
the
appellant’s
conduct
in
the
litigation
process
warranted
the
awarding
of
solicitor
and
client
costs
to
the
respondent.
The
respondent
claimed
the
proceedings
undertaken
by
the
appellant
since
May
1997
were
improper,
vexatious
or
unnecessary.
Ms.
Janke,
counsel
for
the
respondent,
as
stated
previously
informed
the
Court
of
certain
facts
and
also
argued
the
motion
for
the
respondent.
This
is
highly
improper.
Counsel
in
a
judicial
proceeding
ought
not
to
testify.
Evidence
provided
by
a
witness
includes
the
elements
of
scrutiny
and
credibility
and
is
subject
to
legal
proof,
challenge
and
cross-examination.
In
contrast,
the
statements
of
an
officer
of
the
Court
are
accepted
without
qualification.
By
performing
the
functions
of
counsel
and
witness,
Ms.
Janke,
the
respondent’s
counsel,
created
a
conflict
between
these
two
legal
principles.
It
was
a
violation
of
the
long-standing
rule
that
a
counsel
cannot
act
in
the
capacity
of
an
advocate
and
a
witness
during
the
same
proceeding.
The
principle
for
this
rule
was
discussed
in
the
Muszka
v.
R.,
a
decision
of
the
Federal
Court
of
Appeal.
On
the
issue
of
an
officer
of
the
Court
testifying
at
a
proceeding,
Mahoney,
J.A.
stated:
The
credibility
of
every
witness
is
in
issue.
That
a
member
of
the
bar
acting
as
counsel
in
a
proceeding
be
not
allowed
to
testify
is
a
requirement
of
the
due
administration
of
justice.
Such
‘counsel
is
an
officer
of
the
court
whose
credibility
is
accepted
without
qualification.
That
credibility
must
not
be
put
in
issue
by
counsel
giving
evidence.
For
an
officer
of
the
court,
the
functions
of
counsel
and
witness
in
the
same
cause
are
simply
incompatible
and
not
[to]
be
tolerated.
This
analysis
is
similar
to
Mahoney,
J.A.’s
comments
in
an
earlier
case.
In
New
West
Construction
Co.
v.
R.
a
decision
of
the
Federal
Court
Trial
Division,
Mahoney,
J.
(as
he
then
was)
stated:
The
problem
is
primarily
one
of
professional
conduct
rooted
in
the
proposition
that
a
lawyer
representing
a
client
in
court
must
not
permit
his
personal
credibility
to
be
put
in
issue,
something
that
he
necessarily
does
the
moment
he
enters
the
witness
box.
The
Code
of
Professional
Conduct
of
the
Canadian
Bar
Association
states
simply
[at
page
29]:
If
the
lawyer
is
a
necessary
witness
he
should
testify
and
the
conduct
of
the
case
should
be
entrusted
to
another
lawyer.
As
indicated
in
New
West
Construction,
once
it
became
apparent
to
Ms.
Janke
that
it
would
be
necessary
for
her
to
give
evidence
at
the
proceeding,
she
should
have
relinquished
her
role
as
the
advocate
in
the
proceeding,
permitting
another
lawyer
to
argue
the
respondent’s
case.
Upon
bestowing
her
advocate
duties
to
another,
Ms.
Janke
could
have
then
testified
at
the
proceeding
or
sworn
an
affidavit
and
avoided
the
intolerable
position
of
putting
the
credibility
of
an
officer
of
the
Court
in
issue.
In
accordance
with
common
practice
the
evidence
relating
to
Ms.
Janke’s
version
of
events
must
be
disallowed.
Since
there
is
no
other
evidence
which
would
allow
me
to
make
a
determination
of
the
matter
applied
for,
the
motion
must
be
dismissed.
There
will
be
no
costs
on
this
motion.
The
respondent
will
be
entitled
to
costs
of
the
appeals
on
a
party
and
party
basis.
Motion
granted.
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