“Counsel in this case — and in all cases — should clearly understand that the court will not allow lawyers to simply subvert the Rules by having lawyers/law clerks advance vitally important information by signing affidavits, in circumstances where the client could and should have set out the facts,” Pazaratz wrote, noting that he was not alone in his concern.
“There have been a number of recent decisions expressing the court’s very strong disapproval of the apparent growing practice of affidavits being filed by lawyers or by legal staff,” the judge added.
Nida Sohani, a lawyer with Toronto litigation boutique Gaertner Baron PC, who has researched the topic of lawyer’s affidavits for the Ontario Bar Association, says Pazaratz’s ruling is just the latest in a series of similar decisions, which she says seem to arise periodically.
“It’s a common theme with judges, and this judgment echoes what others have been saying for a while,” she says. “I think lawyers sometimes don’t put that much thought into writing an affidavit and the fact that they are governed by the same rules of evidence, which is surprising when you consider how important the evidence is that’s normally admitted that way.”
Still, Toronto lawyer Heather Douglas, who practises with AMR LLP, says there are situations when it may be appropriate for a lawyer or a member of their support staff to file an affidavit in one of their own cases.
“It all depends on the kind of motion,” she says, explaining that procedural, disclosure-related or uncontested motions are the least risky.
“There are times when legal staff will know more details than the actual parties about the documents that are being requested,” Douglas says. “But if it’s a motion for summary judgment, where you’re supposed to be putting your best evidence forward, that’s where you could get into trouble.”
“I’ve also seen affidavits that are very argumentative, as opposed to focusing on getting the evidence in, which is going to be problematic,” she adds.
According to Sohani, convenience is often the driving factor when lawyers file affidavits from colleagues and support staff.
“It’s much easier to have someone in the office sign something than to schedule the client to come in and explain what they’re swearing to,” she says. “When deadlines are coming up, it’s tempting to go down the hall and ask someone to swear one and send it over.”
On other occasions, the motivation may be tactical, she adds.
“If a lawyer has a client who they don’t think will withstand cross-examination well, they may want to shield them from questioning by the opposing party on a contentious issue,” Sohani says. “It’s not appropriate to use a lawyer’s affidavit for that purpose, but it’s not uncommon to see it.”
Stephen Cavanagh, the senior partner at Ottawa civil litigation boutique Cavanagh LLP, says lawyers who file their own affidavits for tactical reasons could actually end up exposing clients to greater danger, particularly if they cross the line between counsel and witness.
“It could give rise to a possible waiver of solicitor-client privilege, and suddenly the communications between the two could be fair game for examination,” explains Cavanagh. “That’s at the extreme end of the scale in terms of inappropriateness, but it does happen.”
In the Farooq case, the applicant Anser Farooq, a lawyer himself, brought a motion seeking compliance with a previous order from the mother of his four children in their high-conflict family law matter.
However, the only evidence filed in support of the motion was an affidavit from a lawyer who said he was assisting Farooq’s former counsel. In addition to a non-controversial summary of the file’s history, the affidavit also includes allegations of misconduct and inappropriate behaviour against the respondent that the affiant would have no personal knowledge of, according to Pazaratz’s judgment.
“The Applicant could have — and should have — filed his own affidavit setting out his narrative and the facts he was relying on,” the judge wrote.
According to the decision, Farooq acknowledged at the hearing that he could have signed his own affidavit but chose to have someone else sign one, in order to free himself to argue the motion.
Ultimately, the judge dismissed the motion without prejudice, allowing the issues to be tacked on to existing trial dates already set for other child-related issues in the case.