Pluri Vox Media Corp. v. Canada, (2012) 426 N.R. 162 (FCA)

• Judge: Stratas, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 18, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 426 N.R. 162 (FCA);2012 FCA 18

Pluri Vox Media Corp. v. Can. (2012), 426 N.R. 162 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. JA.028

Pluri Vox Media Corp. (appellant) v. Her Majesty the Queen (respondent)

(A-219-11)

Pluri Vox Media Corp. (appellant) v. Minister of National Revenue (respondent)

(A-331-11)

(2012 FCA 18; 2012 CAF 18)

Indexed As: Pluri Vox Media Corp. v. Canada

Federal Court of Appeal

Stratas, J.A.

January 18, 2012.

Summary:

The appellant moved to settle the contents of the appeal book. The dispute between the parties concerned three documents which the appellant wanted to include in the appeal book. The appellant also moved for leave to tender an affidavit of its lawyer who intended to present argument on the motion.

The Federal Court of Appeal, per Stratas, J.A., granted leave to tender the affidavit. The court ordered that the appeal book was to contain the documents listed in the appellant's proposal, except for three impugned documents.

Barristers and Solicitors - Topic 801

Duty to court - Counsel as a witness - General - The appellant moved to settle the contents of the appeal book - The appellant sought leave under Federal Court Rule 82 to tender an affidavit of its lawyer who would also be presenting argument on the motion - The Federal Court of Appeal, per Stratas, J.A., stated that the purpose of rule 82 was to prevent, as much as was reasonably and practically possible, the invidious circumstances that could arise where lawyers acted as both witnesses and advocates in the same matter - Rule 82 reflected accepted rules of professional conduct developed by lawyers' governing bodies across Canada and should be interpreted in light of those rules - As the appellant's lawyer was resident in Ontario, it was appropriate to refer to the Law Society of Upper Canada's Rules of Professional Conduct which were very similar to those existing in other Canadian jurisdictions - Problems could arise where a lawyer acted on a motion both as a witness on controversial matters of fact and as an advocate - An unacceptable conflict could ensue - Further a lawyer had certain obligations of fairness and responsibility as an advocate - Many of those obligations had the potential to be broken if the lawyer became a participant in the fray - When the court interpreted and applied rule 82, such concerns should be "front of mind" - The more that those concerns were present, the more the court should exercise its discretion against allowing a lawyer's affidavit - The court should also take into consideration whether the evidence could be supplied by anyone other that the lawyer - See paragraphs 2 to 8.

Barristers and Solicitors - Topic 801

Duty to court - Counsel as a witness - General - The appellant moved to settle the contents of the appeal book - The appellant sought leave under Federal Court Rule 82 to tender an affidavit of its lawyer who would also be presenting argument on the motion - The Federal Court of Appeal, per Stratas, J.A., noted that the lawyer was the sole shareholder of the appellant - His affidavit merely exhibited three documents for use on the motion to settle the appeal book - The affidavit did not comment in any way on the three documents and did not recount any of the facts that might be controversial - Also, the three documents were uncontroversial and of minimal importance - Assuming that the lawyer had a law partner, associate lawyer, student-at-law or legal assistant, it would have been preferable if the three documents were exhibited in an affidavit from one of those persons - However, given the uncontroversial nature of the documents, their minimal importance to the motion and the motion's straightforward nature, the court admitted the affidavit - See paragraphs 9 to 14.

Barristers and Solicitors - Topic 892

Duty to court - Presentation of evidence - Duty respecting affidavit evidence of counsel - [See both Barristers and Solicitors - Topic 801 ].

Practice - Topic 3683

Evidence - Affidavits - Use of - Affidavits by lawyer - Limitations - [See both Barristers and Solicitors - Topic 801 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - The appellant moved to settle the contents of the appeal book - The parties' dispute concerned three documents which the appellant wanted to include in the appeal book - The Federal Court of Appeal held that the three documents were not eligible for inclusion where they were not part of the record of the first instance court - Some of the appellant's submissions "smacked" of an attempt to argue that the documents met the test for inclusion in the appeal book as fresh evidence - Federal Court Rule 351 governed - The applicable test was whether the evidence was discoverable with reasonable diligence before the end of the trial, was credible and was practically conclusive of the appeal - If that threefold test was not met, Canadian Council for Refugees et al. v. Canada (F.C.A.) permitted admission in unusual circumstances where the interests of justice required it - The appellant had not satisfied the threefold test and there were no unusual circumstances where the interests of justice required the admission of the documents - The three documents were not to be included in the appeal book - See paragraphs 15 to 19.

Practice - Topic 9053

Appeals - Record on appeal - Content of record on appeal - [See Practice - Topic 9031 ].

Practice - Topic 9455

Appeals - Factum, case on appeal or appeal book - Content of - [See Practice - Topic 9031 ].

Cases Noticed:

Entral Group International Inc. et al. v. MCUE Enterprises Corp. et al. (2006), 354 N.R. 29; 2006 FCA 289, refd to. [para. 16].

Canadian Council for Refugees et al. v. Canada, [2008] N.R. Uned. 49; 2008 FCA 171, refd to. [para. 17].

Statutes Noticed:

Federal Courts Rules, 1998, rule 82 [para. 2].

Authors and Works Noticed:

Law Society of Upper Canada, Rules of Professional Conduct, rule 4.01 [para. 7]; rule 4.02 [paras. 5, 6].

Counsel:

Martin Reesink, for the appellant;

Tamara Watters, for the respondent.

Solicitors of Record:

Barrister, Ottawa, Ontario, for the appellant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

These motions were dealt with in writing, without the appearance of the parties, by Stratas, J.A., of the Federal Court of Appeal, who delivered the following reasons for order at Ottawa, Ontario, on January 18, 2012.