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.