Date: 19971021
Dockets: 92-999-IT-G; 96-2411-IT-G
BETWEEN:
LUCINDA VANDERVORT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Rip, J.T.C.C.
[1] 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).
[2] 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.
[3] 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.
[4] 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.
[5] 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.
[6] 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[1] are
accepted without qualification.[2] 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[3] 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. The
Queen, 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.
[7] This analysis is similar to Mahoney, J.A.’s comments
in an earlier case. In New West Construction Co. Ltd. v. The
Queen[4] 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.[5]
[8] 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.
[9] In accordance with common practice[6] 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.
”Gerald J. Rip”
J.T.C.C.
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