70128 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: KAREN L. TURNER‑LIENAUX and THE ATTORNEY GENERAL OF NOVA SCOTIA, representing THE CIVIL SERVICE COMMISSION and THE VICTORIA GENERAL HOSPITAL, being agents of Her Majesty The Queen in the right of the Province of Nova Scotia and PATRICIA GUILE INTERVENOR HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Walter R. E. Goodfellow, Trial Division, on the 16th day of January, 1992 (in Chambers) DECISION: January 16th, 1992 (orally, at conclusion of hearing) COUNSEL: Charles D. Lienaux and Michael I. King, for the Plaintiff E. J. Flinn, Q. C., for the Defendant Dawna Jean Ring, for the Intervenor 70128 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: KAREN L. TURNER‑LIENAUX and THE ATTORNEY GENERAL OF NOVA SCOTIA, representing THE CIVIL SERVICE COMMISSION and THE VICTORIA GENERAL HOSPITAL, being agents of Her Majesty The Queen in the right of the Province of Nova Scotia and PATRICIA GUILE INTERVENOR GOODFELLOW, J.: (Orally) This is the matter of Karen L. Turner‑Lienaux, the Attorney General of Nova Scotia and Patricia Guile. pre‑hearing conference in this matter was held Tuesday, the 14th of January, 1992, where agreement was reached that today the court would address the following: 1. the defence application to remove Charles D. Lienaux as solicitor in the plaintiff's application filed December 2nd, 1991; 2. If Charles D. Lienaux were removed, should he be permitted to address the defendant's further application to strike the original application, which consists of the originating notice interlocutory (inter partes) and Charles D. Lienaux's affidavit in support of the plaintiff's original application, sworn the 27th day of November, 1991, and filed the 2nd of December, 1991? Prior to the hearing, Mr. Lienaux indicated willingness to withdraw as solicitor for the plaintiff's application of December 2nd, 1991, but continue on the defence application to strike. The defence application strike is to be heard January 22nd, 1992, at 11:00 a.m. This causes me to review Mr. Lienaux's position. The application by the defendant for the court to order Charles Lienaux to remove himself as solicitor for the plaintiff in his application filed December 2nd, 1991, is supported by the intervenor. This application in itself seeks declarations and relief against the defendant and the solicitor in the employ of the defendant, the Attorney General of Nova Scotia. The defence takes the position that the application is supported by the 17 page, 123 paragraph affidavit of Charles D. Lienaux, and that he has placed himself in the position of a witness who may be cross‑examined. Mr. Lienaux, in one of his extensive briefs, took the position that the defendant's motion was entirely misconceived and has no merit; however, he goes on to state at p. of his brief: "The Defendants have submitted authority to your Lordship which holds that solicitor may not be advocate and witness in the same proceeding where the solicitor seeks to speak directly to matters in issue in the proceeding. The Plaintiff finds no fault with that proposition or with any of the authorities cited by the Defendants in support of that proposition." Mr. Lienaux maintains that the summary application before the court is not proceeding wherein the parties are opposed in an adversarial position. He takes the view that this is matter of the court supervising one of its officers. He says further that the court may hear any evidence which it may determine is relevant to the rendering of properly considered determination of the propriety of the impugned solicitor's conduct. Undoubtedly the court will, when the original application on its merits is heard, hear any evidence which it determines to be relevant, but I fail to see how that determination permits the plaintiff's solicitor to escape the ethical duty not to give evidence in a matter in which the lawyer is involved as counsel except in merely formal or uncontroverted matters. Mr. Lienaux states at p. of his brief: "The Court's jurisdiction to award compensation to party for solicitor client costs incurred improperly as result of solicitor's dereliction of duties owed relative to the conduct of litigation in Nova Scotia is encoded in our Rules at Rule 63.15 as follows..." "Costs arising from misconduct or neglect 63.15.(1) Where any thing is done or an omission is made, improperly or unnecessarily, by or on behalf of party, the court may order, (a) any costs arising from the act or omisison not be allowed to the party; (b) the party to pay the costs of any other party occasioned by the act or omission; (c) taxing officer to inquire into the act or omission, with power to order or disallow any costs as provided in clauses (a) and (b). (2) Where in proceeding, costs are incurred improperly, or without reasonable cause, or arise because of undue delay, neglect or other default, the court may, when the solicitor whom it considers to be responsible, whether personally or through servant or agent, is before the court or has notice, make an order, (a) disallowing the costs as between the solicitor and his client; (b) directing the solicitor to repay to his client costs which the client has been ordered to pay to any other party; (c) directing the solicitor personally to indemnify any other party against costs payable by the party; [E.62/29] (d) directing taxing officer to inquire into the act or omission, with power to order or disallow any costs as provided in clauses (a) to (c)." have no quarrel with this statement, but how does it advance Mr. Lienaux's position that he should be allowed to continue, even though he is witness and probably subject to cross‑examination? do not accept the proposition advanced by Mr. Lienaux that, because he seeks determination of the allegations of misconduct of another solicitor, he is permitted to be both witness and counsel. In addition, this application is made by the plaintiff seeking number of remedies, including compensation for the plaintiff and fees, etc. and is much broader, in my view, than Mr. Lienaux's brief contends. Mr. Lienaux says at p. of his brief: It is the Plaintiff's respectful submission that the Notice and Affidavit filed in the present Application do nothing more than document to the Court the matters complained of by the Plaintiff..." cannot follow how this mysteriously takes the contents of the affidavit out of its character of evidence. Finally, Mr. Lienaux says to allow the defendant's motion would bring the administration of justice into disrepute. find quite the opposite, that should fail to grant the defendant's motion, it is more likely to bring the administration of justice into disrepute. The defence's initial request for cross‑examination of Mr. Lienaux is understandable. Although there is no absolute entitlement to cross‑examination, it is almost always the case that it is appropriate and it certainly would be appropriate in this instance. The affidavit filed by Mr. Lienaux is extensive 17 pages, 123 paragraphs and it is the foundation for the plaintiff's several claims for relief as set out on the application of the plaintiff dated the 2nd of December, 1991. In Oakfield Builders v. LeBlanc (1977), 25 N.S.R. (2d) 556, (S.C.T.D.) Chief Justice Cowan allowed the conduct of the trial to continue by associates the two solicitors of record, both of whom were witnesses. in the trial. After setting out how and why this situation arose, Chief Justice Cowan stated at p. 571: "I comment on this, only to note that the practice followed in this case is not the usual practice, and it should not be taken as precedent to be followed, except in very exceptional cases, of which this seemed to be one." In Baydon Corp. Ltd. v. DuPont Glore Forman Canada Ltd. (1974), 1974 CanLII 593 (ON SC), O.R. (2d) 290, (Ont. H.C.J.) the court, during the course of the argument, raised the question whether counsel in fact intended to rely on his own affidavit. Counsel for the opposing party did not object to the affidavit, nor did they wish to cross‑examine on it. Yet Henry, J. at p. 298 said: ".. It is clear rule of practice before our Courts that professional counsel cannot at the same time as he is presenting his client's case as an officer of the Court, be witness in the proceedings. He must, if faced with the dilemma, make choice he may be either witness or counsel; he cannot be both. This practice has been the subject of judicial comment. In Ryan et al. v. Dubois et al., 1950 CanLII 314 (ON SC), [1950] O.W.N. 818, ... McRuer, C.J.H.C., said at p. 820: In both applications the only affidavit in support of each motion was an affidavit of Mr. Hess, who appeared as counsel before me. It has been repeatedly stressed that solicitors who make affidavits ought not to appear before the Court to argue the case on the basis of their own affidavits. permitted Mr. Hess to continue with his argument on account of some exceptional circumstances, but it cannot be too firmly impressed on the members of the legal procession that this practice must be not only discouraged but discontinued. It has been the subject of repeated judicial comment and while there may be exceptional cases there seems no good reason why the practice should not now become the subject of judicial restraint." There is no absolute prohibition that solicitor cannot file an affidavit, but it is limited. In the case of New Brunswick Milk Dealers Association v. New Brunswick Milk Marketing Board (1984), 56 N.B.R. (2d) 413, Stevenson, J. said at the bottom of p. 414 and the top of p. 415, beginning at para. 7: "It is bad practice for the solicitor for party to make such an affidavit. We have been lax in this court in permitting solicitors who make affidavits not confined to procedural matters to argue cases on the basis of their own affidavits. The practice should be discouraged. solicitor who makes an affidavit swearing to facts going to the merits of case or of motion is in the same position as solicitor who finds himself on the witness stand he should not be heard as both witness and counsel..." Finally, in Re Bazant (1984), 1984 CanLII 2659 (SK CA), 33 Sask. R. 1, the Saskatchewan Court of Appeal queried the propriety of counsel because he was partner or associate of barrister who had given evidence that had been challenged and who had been witness in prior proceeding. Counsel in that case reflected on the court's comments and then acknowledged that he should not continue as counsel in such circumstances. I've been referred to Rule 10.11 of the Nova Scotia Barristers' Society Handbook and Code of Ethics. What is the position of that Handbook? It is as stated in the section entitled "Interpretation"" This Handbook contains the rules for ethical and professional conduct deemed appropriate for lawyers in Nova Scotia...." The Handbook has been approved by the bar council. Chapter 10 of the Handbook deals with the lawyers as advocate, and para. 10.11 is headed "Constraints on lawyers giving evidence by affidavit". "10.11 The lawyer has duty to respect and comply with the rules of court for affidavits and not to give evidence, in matter in which the lawyer is involved as counsel, by affidavit except only as to merely formal or uncontroverted matters." The Handbook is, as stated.; an outline of the standards of professional conduct adopted by the Nova Scotia Barristers' Society, and it is accorded recognition as very learned and helpful treatise on the law governing barristers. The Handbook is not, and is not meant to be, exhaustive of the duties and responsibilities of barrister. Mr. Justice Sopinka, of the Supreme Court of Canada, commented on the position of the Canadian Bar Association Code of Professional Conduct of 1974, in Martin v. Gray (1990), 1990 CanLII 32 (SCC), 121 N.R. (S.C.C.) at p. 11, [18] code of professional conduct is designed to serve as guide to lawyers and typically it is enforced in disciplinary proceedings. See, for example, Law Society of Manitoba v. Giesbrecht (1983), 1983 CanLII 2810 (MB CA), 24 Man.R. (2d) 228 (C.A.). The courts, which have inherent jurisdiction to remove from the record solicitors who have conflict of interest, are not bound to apply code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction. Nonetheless, an expression of professional standard in code of ethics relating to matter before the court should be considered an important statement of public policy. The statement in Chapter should therefore be accepted as the expression by the profession in Canada that it wishes to impose very high standard on lawyer who finds himself or herself in position where confidential information may be used against former client. The statement reflects the principle that has been accepted by the profession that even an appearance of impropriety should be avoided." felt it necessary to deal extensively with the first issue of Mr. Lienaux's removal, in spite of his willingness to withdraw for the December 2, 1991, application, because of its effect on the argument that removal should be for the entire application and applications directly flowing from it or in opposition to it. have struggled to see if there is any basis upon which Mr. Lienaux could make the argument and remain on record for the purpose of the defence's application to strike, and can find no basis for such limited participation. The boundaries of Civil Procedure Rule 14.25 are quite broad, and I am satisfied that with his removal from the original application, it would not be proper for him to continue on an application directly related or arising from it. It will be impossible to avoid comment on his affidavit, his evidence. These applications are so closely related that it seems to me that it is improper to act in one, that it's improper to act as counsel in the other. The matter of Mr. Lienaux's amendment has been granted so that he is entitled to amend the plaintiff's originating notice of December 2nd, 1990, to allege negligence. In granting that motion it will be up to Mr. Flinn and Ms. Ring to advise the court whether or not they are still able to proceed with the application to strike, scheduled for Wednesday, the 22nd of January at 11:00 a.m., and until so advised that application will stand. On the matter of costs, it seems to me that this matter ought to have been finessed and not dealt with before court. Certainly substantial amount of time and effort has been put in by both the defendant and the intervenor. award costs to the defendant in the amount of $650.00 and costs to the intervenor as requested of $150.00, both costs will be paid forthwith. J. Halifax, Nova Scotia January 16, 1992 1989 S. H. No. 70128 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: KAREN L. TURNER‑LIENAUX and THE ATTORNEY GENERAL OF NOVA SCOTIA, representing THE CIVIL SERVICE COMMISSION and THE VICTORIA GENERAL HOSPITAL', being agents of Her Majesty the Queen in the right of the Province of Nova Scotia and PATRICIA GUILE
The plaintiffs original application was supported by her solicitor's affidavit. The Defence wanted the solicitor removed. The solicitor agreed to withdraw from the original application but wanted to appear on the Defence's interlocutory application to strike. Ordering the solicitor not to continue in the original or any related applications, that a lawyer has a duty not to give evidence in a matter in which he or she is involved as counsel except in merely formal or uncontroverted matters. Here the applications were so closely related that where it was improper to act in one, it was improper to act in the other.