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.
[1] Subsection 17.1(2) of the Tax Court of Canada Act provides the definition of an officer of the Court for the purposes of Tax Court of Canada proceedings: “every person who may practice as a barrister, advocate, attorney or solicitor in any of the provinces may so practice in the Court and is an officer of the Court”.
[2] 94 DTC 6076 at 6077 (F.C.A.).
[3] However, Cameron v. Forsyth, (1847) 4 U.C.R. 189 (U.C.Q.B.), a judgment of the Upper Canada Queen’s Bench in July of 1847, indicates that the rule that a counsel could not act both as an advocate and as a witness existed at least 150 years ago. This rule has consistently been upheld by Canadian Courts: See Stanley v. Douglas, [1952] 1 S.C.R. 260.
[4] [1981] 1 F.C. 583 (F.C.T.D.).
[5] Ibid., at p. 584.
[6] This practice is illustrated in A & E Land Indust. Ltd. v. Sask. Crop Ins. Corp., [1988] 3 W.W.R. 590 (Sask. Q.B.), which rejected counsel’s affidavit and, as no other evidence was before the court, dismissed the motion.