In Rochon v. Commonwell Mutual Insurance Group, a 2021 decision of the Ontario Superior Court of Justice, one of the issues raised was whether an affidavit sworn by counsel of record, in response to a motion, was entirely appropriate.
A Notice of Motion is a short statement requesting relief from the Court and citing the legal authority that allows the Court to take such action. The affidavit is a sworn statement that sets forth the facts that support the motion.
It is quite commonplace to see affidavits in motion records, sworn by lawyers acting for the parties, but there are guidelines for when this is appropriate and what can be rendered. The affidavit should not contain any legal argument or opinion, nor should it contain legal positions.
In the 2008 Ontario Superior Court of Justice decision in Mapletoft v. Christopher J. Service, Master MacLeod discussed the challenges in having an affidavit sworn by the lawyer or staff member. He found that the issue is that counsel may become a material witness for trial, which would require the firm and the lawyer to withdraw from the action. Master MacLeod stated:
This principle is grounded in the rules governing conflict of interest and the need for counsel as an officer of the court to retain an appropriate level of professional objectivity. The court cannot countenance counsel for a party placing his or her own credibility in issue on an important point of evidence.
Master MacLeod, therefore, proposed the following guidelines:
- A partner or associate lawyer or a member of the clerical staff may swear an affidavit identifying productions, answers to undertakings or answers given on discovery. These are simple matters of record, part of the discovery and admissible on a motion pursuant to Rule 39.04. Strictly speaking an affidavit may not be necessary but it may be convenient for the purpose of organizing and identifying the key portions of the evidence. Used in this way, the affidavit would be non contentious.
- If it is necessary to rely on the information or belief of counsel with carriage of the file, it is preferable for counsel to swear the affidavit and have other counsel argue the motion. This approach will not be appropriate for highly contentious issues that may form part of the evidence at trial. If the evidence of counsel becomes necessary for trial on a contentious issue, it may be necessary for the client to retain another law firm.
- Unless the evidence of a lawyer is being tendered as expert testimony on the motion, it is not appropriate for an affidavit to contain legal opinions or argument. Those should be reserved for the factum.
In Ferreira v. Cardenas, a 2014 Ontario Superior Court of Justice decision, J. Myers held:
Generally, lawyers’ affidavits are not appropriate for motions for summary judgment. Clients’ and/or eyewitness’ firsthand evidence and expert opinion based on firsthand evidence are the trump suit.
However, Myers J. agreed that certain procedural motions turn on evidence that counsel can provide, such as the chronology of the action or facts regarding how litigation has progressed. In those instances, counsel, rather than the client, are best suited to provide these facts.
In the Rochon decision, Gomery J., made reference to Section 5.2 of the Law Society of Ontario’s Rules of Professional Conduct:
SECTION 5.2 THE LAWYER AS WITNESS
Submission of Evidence
5.2-1 A lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless
(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or
(b) the matter is purely formal or uncontroverted.
Commentary
[1] A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate’s right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.
In addition, among the commentaries to Rule 5.1-1 is the following:
[5] A lawyer should refrain from expressing the lawyer’s personal opinions on the merits of a client’s case to a court or tribunal.
In Rochon, the Plaintiff sought to amend her Amended Statement of Claim and to obtain direction with regard to the value of the contents of the house. Counsel for the Defendant swore the responding affidavit, contesting the relief, and stated that the increase in the claim for punitive damages to $100 million was frivolous, an abuse of process and not proper. He also swore that the case was not appropriate for the direction of a reference.
Gomery J. raised concerns regarding the affidavit and found that the above statements about counsel’s belief were inappropriate as they were tendered as evidence or argument. It was found that there was no basis for this “evidence” and if counsel was going to become a potential witness, the firm should remove itself as acting counsel. Gomery J stated:
In Ferreira, at para. 22, Myers J. reviewed the caselaw upholding this principle and the rationale for it, and concluded that: “in the client’s eyes, the lawyer who swears in her belief as to the appropriate outcome of a proceeding is implicitly criticizing the court should it come to a different view”. In so doing, the lawyer undermines the administration of justice.
Accordingly, the two paragraphs in question were withdrawn and were not taken into account in deciding the motion.
Especially during COVID, it may be challenging to obtain an affidavit from one’s client, although the use of technology has assisted greatly in the execution of this. Having counsel swear the affidavit in support of a motion, should be undertaken carefully and in limited circumstances, so as to protect the integrity of the role of the lawyer, the parties, the evidence and the judicial system.