Speciale v. Giardino 2010 ONSC 101 is a good source for the principle that counsel ought not to appear as counsel where they have given evidence by way of affidavit. This is a very basic principle and yet it is often overlooked by (or perhaps unknown to) counsel. The critical passage follows:
23 It has been long held that counsel should not appear as both witness and counsel. In the decision Edwards v. Law Society of
[T]hese impugned affidavits are replete with references to evidence of information and belief provided to the deponent by counsel for the Representative Plaintiffs. It is candidly conceded that this approach was taken for the specific purpose of shielding counsel, who had conducted the underlying investigation himself, from cross-examination on these matters, and to preserve the solicitor client privilege. This is not acceptable. It is important that all of the facts be brought out. The right to cross-examine is one of the cornerstones of our justice system, and fundamental rules of fairness dictate that parties adverse in interest have the right to cross-examine a witness. See Sopinka et al., The Law of Evidence in
Moreover, the practice of counsel providing the information to be used by the deponent of an affidavit, and then appearing to argue on the basis of that same affidavit has been the object of judicial scrutiny on numerous occasions, and has met with disfavour. In CBL Investments Ltd. v. Menkes Corp. (1994), 17 O.R. (3d) 147 at 153 (Gen. Div.) Mr. Justice Borins described the practice as "tantamount to each of these lawyers appearing on their own affidavit." See also Essa (Township) v. Guergis, Memberg v. Hill (1993), 15 O.R. (3d) 573 (
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