Date: 20000307
Docket: T-485-99
ADMIRALTY ACTION IN PERSONAM
BETWEEN:
SHIPDOCK AMSTERDAM B.V.
Plaintiff
-and-
THE CAST GROUP INC. and CAST (1983) LIMITED
and CAST MANAGEMENT LIMITED and
THE ROYAL BANK OF CANADA and
PRICE WATERHOUSE COOPERS and FASKEN,
CAMPBELL, GODFREY and RICHARDS HOGG
LINDLEY and AON REED STENHOUSE and
M.J. OPPENHEIM IN HIS QUALITY AS
ATTORNEY IN FACT IN CANADA FOR UNDERWRITERS,
MEMBERS OF LLOYD'S, LONDON, ENGLAND
Defendants
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is a motion dated January 20, 2000, by the Defendant, THE ROYAL BANK OF CANADA for an order striking out in whole or in part the affidavit of James William Andrew sworn October 27, 1999. The affidavit was filed in support of the plaintiff"s summary Judgment Motion.
[2] The plaintiff is a ship builder and ship repair yard in the Netherlands that allegedly performed repairs to a ship called the "Cast Husky". The plaintiff has not been paid for that work. The claim in the main proceeding is a claim against the Royal Bank for payment of its statement of account as it alleges the Royal Bank came into possession of insurance proceeds from which it should have been paid.
[3] THE ROYAL BANK OF CANADA (Defendant) objected to the affidavit on various grounds including:
| (a) the affiant did not have personal knowledge of the matters deposed to and; |
| (b) did not state his beliefs or the grounds, therefore; |
| (c) the affiant did not obtain leave of the Court to both depose to an affidavit and present argument to the Court based on that Affidavit. The affiant is a solicitor in the office of the law firm that represents the plaintiff; |
| (d) certain paragraphs the affidavit are conclusions of law. |
[4] After the defendant filed the present motion objecting to the affidavit the affiant filed a second affidavit sworn on January 27, 2000. In the second affidavit it is stated that it was given for the following reasons:
| 2. This affidavit is made by me to supplement my affidavit sworn October 27, 1999, and filed in support of the plaintiff"s motion for summary judgment herein. It is also made for the purpose of responding to the motion of the defendant, The Royal Bank of Canada (the "defendant"), to strike out various paragraphs of my said affidavit. |
[5] The defendant submitted that both affidavits should be struck.
[6] The affiant obtained most of the facts he deposed to from a representative of the plaintiff in the Netherlands.
Issue: Should either or both of the affidavits filed by the affiant be struck?
Law
[7] Rules 81 and 82 of the Federal Court Rules, 1998 state:
| 81.(1) Contents of affidavits " Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent"s belief, with the grounds therefor, may be included. |
81.(1) Contenu " Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s"ils sont présentés à l"appui d"une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l"appui. |
| (2) Affidavits on belief " Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts. |
(2) Poids de l"affidavit " Lorsqu"un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables. |
| 82. Use of solicitor"s affidavit " 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. Utilisation de l"affidavit d"un avocat " 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. |
Analysis and Findings
[8] It is apparent from Rule 81 that the person deposing the affidavit should only depose to facts within his or her personal knowledge except on motions when statements as to the deponents belief, with the grounds therefor, may be used.
[9] It may be that the deponent"s affidavit of January 27, 2000 cleared up the shortfalls of the first affidavit in relation to Rule 81(1) however, that is not the end of the matter. Rule 82 requires that a solicitor obtain the leave if the Court before both deposing to an affidavit and presenting argument to the Court based on the affidavit.
[10] No leave of the Court has yet being sought.
[11] There is always a danger in a solicitor deposing to an affidavit and then using the affidavit on a motion which the solicitor argues or members of his firm argues. The solicitor could be cross examined, privilege issues may arise on cross-examination and the Court would have to comment and weigh the allegations made by the solicitor in the affidavit. As well the solicitor"s law firm could not continue to appear for the defendant in the motion in which the affidavit was used (see IBM. Corp. v. Printech Ribbons Inc. [1994] 1 FC 692 (FCTD)).
[12] In the present motion there is a dispute concerning some of the facts deposed to by the deponent.
[13] In Director of Investigation & Research v. Irving Equip. (1986) 16 CPR (3d) 26 (F.C.T.D) Muldoon, J. stated:
| 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 rôle 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 ding 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. |
I agree with the finding of Muldoon, J. that a solicitor should not file his or her affidavit on a motion when the solicitor is the counsel for a party. I hasten to point out that the solicitor who deposed the affidavit in the present case did so only because he believed that the facts he deposed to were not in dispute. As it turns out the plaintiff states the facts are in dispute.
[14] It is clear that the person who informed the deponent as to the facts could have deposed to the facts.
[15] I must point out that in certain cases, counsel for the party may depose to facts in an affidavit and appear and use that affidavit on a motion. For example if the solicitor is the only person who can depose to these facts then it wold be acceptable for counsel to depose to the facts and then appear and use the affidavit on a motion. There are I am sure other examples.
[16] For the purposes of this decision I consider 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. This is of course subject to the exception of paragraph 15 of this decision.
[17] For the reasons stated above I would strike out both affidavits of the deponent.
[18] There shall be no order as to costs in this motion.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
March 7, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-485-99 |
| STYLE OF CAUSE: SHIPDOCK AMSTERDAM B.V. |
- and -
| THE CAST GROUP INC. and CAST (1983) LIMITED and CAST MANAGEMENT LIMITED and THE ROYAL BANK OF CANADA and |
| PRICE WATERHOUSE COOPERS and FASKEN, |
| CAMPBELL, GODFREY and RICHARDS HOGG |
LINDLEY and AON REED STENHOUSE and M.J. OPPENHEIM IN HIS QUALITY AS
| ATTORNEY IN FACT IN CANADA FOR UNDERWRITERS, MEMBERS OF LLOYD'S, LONDON, ENGLAND |
| DATE OF HEARING: MONDAY, JANUARY 31, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: O"KEEFE J. |
DATED: TUESDAY, MARCH 7, 2000
| APPEARANCES: Mr. Jonathan H. Marler |
| For the Plaintiff |
| Mr. T. Anthony Ball (LSUC#331431) |
| For the Defendants |
| SOLICITORS OF RECORD: MARLER & KYLE |
| 86 Chisholm Street |
| Oakville, Ontario |
| L6K 3H7 |
| For the Plaintiff |
| FASKEN CAMPBELL GODFREY |
| Barristers & Solicitors |
| P.O. Box 20 |
Toronto Dominion Bank Tower
| Toronto-Dominion Centre |
Toronto, Ontario
| M5K 1N6 |
| For the Defendants |
FEDERAL COURT OF CANADA
Date: 20000307
Docket: T-485-99
Between:
| SHIPDOCK AMSTERDAM B.V. |
Plaintiff
- and -
| THE CAST GROUP INC. and CAST (1983) LIMITED and CAST MANAGEMENT LIMITED and THE ROYAL BANK OF CANADA and PRICE WATERHOUSE COOPERS and FASKEN, CAMPBELL, GODFREY and RICHARDS HOGG |
| LINDLEY and AON REED STENHOUSE and M.J. OPPENHEIM IN HIS QUALITY AS |
| ATTORNEY IN FACT IN CANADA FOR UNDERWRITERS, |
| MEMBERS OF LLOYD'S, LONDON, ENGLAND |
Defendants
| REASONS FOR ORDER |
AND ORDER