Judgments

Decision Information

Decision Content

T-627-76
New West Construction Co. Ltd. (Plaintiff) v.
The Queen in right of Canada represented by the Minister of Public Works (Defendant)
Trial Division, Mahoney J.—Edmonton, February 26, 1980; Ottawa, February 29, 1980.
Practice — Plaintiff's claim requires that plaintiff's counsel be a witness at trial — Evidence so tendered would be admis sible and it is not within power of Trial Judge to put party to his election and to require that the lawyer serve either as counsel or witness, but not both.
Brett v. Brett (No. l) [1937] 2 W.W.R. 689; aff d. [1938] 2 W.W.R. 368, agreed with. Stanley v. Douglas [1952] 1 S.C.R. 260, referred to. Imperial Oil Ltd. v. Grabarchuk (1974) 3 O.R. (2d) 783, referred to. Phoenix v. Metcalfe [1974] 5 W.W.R. 661 (B.C.C.A.), distinguished.
APPLICATION. COUNSEL:
William G. Geddes for plaintiff.
I. G. Whitehall and John Kennedy for
defendant.
SOLICITORS:
William G. Geddes, Edmonton, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for order ren dered in English by
MAHONEY J.: This is an action against the Crown arising out of the performance of a high way construction contract. In the statement of defence, filed September 10, 1976, the defendant pleaded that a settlement had been reached through negotiation and payment in full accepted by the plaintiff in respect of certain claims advanced in the statement of claim. At the pre-tri al conference herein February 12, 1980, the Court was advised that plaintiff's counsel would likely be a necessary witness at the trial in respect of this issue. The pre-trial conference adjourned to resume February 26. The parties did not, in the
interval, arrive at any agreement nor was the plaintiff prepared to abandon any part of its claim that would have eliminated the prospect of counsel being a witness.
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.
Judges, while recognizing that it is the client's decision, not the Court's, have put it more strong ly. The jurisprudence was extensively reviewed in a dissenting judgment by Mr. Justice Cartwright in Stanley v. Douglas.' He concluded [at page 274]:
While these decisions bring me to the conclusion that the evidence of counsel in the case at bar was legally admissible, each of them contains, as indeed does every case which I have read in which the matter is discussed, a clear expression of judicial disapproval of counsel following such a course. Nothing would be gained by quoting these expressions at length. An example is that of Ritchie C.J. in Bank of British North America v. McElroy ((1875) 15 N.B.R. 462 at p. 463):
It is the privilege of the party to offer the counsel as a witness: but that it is an indecent proceeding, and should be discouraged, no one can deny***
If such expressions of judicial opinion extending over a century, coupled with the repeated pronouncements of the representatives of the Bar to the same effect, have not availed to prevent counsel following such a course it is perhaps idle to hope that a further similar expression will prove effective and I shall only say that I am in agreement with the statement of Ritchie C.J., quoted above.
I have found no binding jurisprudence on the point and, since this action is to be tried in Alberta, take Brett v. Brett (No. 1) 2 as the law of that Province on the subject. Evidence so tendered would be admissible and it is beyond the power of a Trial Judge to put a party to his election and to require that the lawyer serve either as counsel or witness
' [1952] 1 S.C.R. 260 at 272 ff.
2 [1937] 2 W.W.R. 689; affd. [1938] 2 W.W.R. 368.
but not both 3 .
That is my decision and I propose to apply it in this case. At the same time, I am not certain that, in a case such as this, the law is absolutely clear. In Brett v. Brett (No. 1), counsel had determined that he was not a necessary witness. He acted accordingly and it was only after the trial that he found his own old diary that permitted him to fix a date in issue. He applied, successfully, to reopen the trial and testified then. He did not act on the appeal. In Phoenix v. Metcalfe, the necessity of counsel testifying became apparent during the course of the trial. Here, the likelihood of counsel having to testify ought to have been apparent to him when he had an opportunity to consider the statement of defence. This case is more akin to Stanley v. Douglas. A will and codicil were pro bated in solemn form and the lawyer who had drawn them appeared both as council and witness. The Supreme Court of Canada upheld an appeal court direction of a new trial. That decision was based on grounds other than the dual capacity in which the lawyer had served at the trial. Kerwin J., with Taschereau J. concurring, agreed that a new trial should be held and, at pages 269 ff of the report, said:
I would add only that, without deciding whether such evidence would be admissible or not, on such new trial no one appearing as counsel for any party should give evidence.
Neither Kellock J., who concurred, nor Rand J. who dissented in the result, dealt with the matter. I have little doubt that, had Cartwright J. not dis sented he would have joined Kerwin J. in that direction.
It may well be that, in a situation such as this, where the problem ought to have been recognized early in the proceedings, the Trial Judge is in a position more analogous to that of an appeal court than to that of a Trial Judge faced with the situation during the hearing of the trial. Counsel who have appeared as witnesses at a trial are
3 Phoenix v. Metcalfe [1974] 5 W.W.R. 661 (B.C.C.A.).
simply not heard on an appeal from the judgment. 4 Because of the doubt I have in this regard, I feel obliged to minimize any risk of personal liability to counsel should the plaintiff continue to insist that he appear at the trial as both counsel and witness. The trial is expected to last between two and three months. The financial stakes are high. If the plaintiff decides to instruct new counsel and an adjournment of the trial is necessary, application may be made.
ORDER
1. Plaintiff's counsel, as an officer of the Court, will recommend to the plaintiff that it obtain independent legal advice on the question of his appearing at the trial as both counsel and witness.
2. On or before March 11, 1980, the plaintiff will cause to be filed in the Edmonton Registry of the Court, a document signed on behalf of the plaintiff by either Mr. Felix Anselmo or Mr. Albert Ansel- mo to the following effect:
a. Mr. William Geddes asked us to obtain independent legal advice on the question of whether we should require him to continue as counsel for us in our action No. T-627-76 in the Federal Court of Canada against Her Majesty the Queen, notwithstanding the possibility that he may be a necessary witness at the trial.
AND EITHER
b. We considered that request and decided not to seek independent legal advice on the question.
1L
b. We sought and obtained such advice from (name and address) and have decided to require Mr. Geddes to continue as our counsel notwithstanding that he may be a necessary witness for us at the trial.
3. In the event the document referred to in para graph 2 is not filed as ordered, the trial of this action, set down to commence at Calgary, Alberta, April 8, 1980, shall, ipso facto, stand adjourned sine die and the defendant will recover costs thrown away in any event of the cause.
4 Imperial Oil Ltd. v. Grabarchuk (1974) 3 O.R. (2d) 783.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.