Law Times

LAW TIMES 8 COVERING ONTARIO'S LEGAL SCENE | APRIL 8, 2019 www.lawtimesnews.com BY MICHAEL MCKIERNAN For Law Times L itigators say a recent fam- ily law decision serves as a warning to lawyers to clean up their affidavit practices. Ontario Superior Court Justice Alex Pazaratz used his recent ruling in Farooq v. Hawkins to express his displea- sure with the applicant's decision to solely support his motion in a high-conf lict family law dispute with a "completely inappropriate and presumptively inadmissible" lawyer's affidavit. "Counsel in this case — and in all cases — should clearly un- derstand that the court will not allow lawyers to simply subvert the Rules by having lawyers/law clerks advance vitally important information by signing affida- vits, 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 disap- proval 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 rul- ing 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 writ- ing an affidavit and the fact that they are governed by the same rules of evidence, which is sur- prising 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 situa- tions 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, explain- ing that procedural, disclosure- related or uncontested motions are the least risky. "There are times when le- gal 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 judg- ment, 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 op- posed to focusing on getting the evidence in, which is going to be problematic," she adds. According to Sohani, conve- nience 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 some- thing 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 moti- vation 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 ques- tioning by the opposing party on a contentious issue," Sohani says. "It's not appropriate to use a law- yer'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 affi- davits 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 privi- lege, and suddenly the commu- nications 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 ap- plicant Anser Farooq, a lawyer himself, brought a motion seek- ing compliance with a previous order from the mother of his four children in their high-conf lict family law matter. However, the only evidence filed in support of the motion was an affidavit from a lawyer who said he was assisting Fa- rooq's former counsel. In addi- tion to a non-controversial sum- mary of the file's history, the affi- davit also includes allegations of misconduct and inappropriate behaviour against the respon- dent that the affiant would have no personal knowledge of, ac- cording 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, Fa- rooq acknowledged at the hear- ing 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 dis- missed 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. LT Ruling illustrates lawyers must work on affidavits Better simplified procedure needed in civil courts P. 10 Judge orders punitive damages against insurer P. 11 Litigation FOCUS 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. Nida Sohani Nida Sohani says a recent ruling shows that 'lawyers sometimes don't put that much thought into writing an affidavit.' Focus on Containing contact information for more than 66,000 judges and legal professionals, more than 27,500 law offices, government departments, and law related offices, canadianlawlist.com attracts more than 325,000 page views a month and 110,000 unique visitors! Book your enhanced listing today! Contact Colleen Austin at 416.649.9327 or colleen.austin@tr.com www.canadianlawlist.com Enhance your presence on Canada's largest legal directory AVAILABLE ONLINE AND IN PRINT Untitled-2 1 2018-09-05 10:17 AM

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