The Polish Alliance of Canada v. Polish Association of Toronto Limited et al., 2011 ONSC 1851

CITATION: The Polish Alliance of Canada v. Polish Association of Toronto Limited et al., 2011 ONSC 1851 DIVISIONAL COURT FILE NO.: DC-443/10 DATE: 2011-07-05 ONTARIO SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT BEFORE: FERRIER, WILTON-SIEGEL and LAUWERS JJ.

BETWEEN:

THE POLISH ALLIANCE OF CANADA Plaintiff (Moving Party)

– and –

POLISH ASSOCIATION OF TORONTO LIMITED, MAREK MIASIK aka MAREK ADAM MIASIK, MARIA MIASIK, JAN ARGYRIS aka LOUIS JOHN ELIE ARGYRIS aka LOUIS JOHN ARGYRIS aka JOHN ARGYRIS, WLADYSLAW JASLAN aka WLADYSLA JULIAN JASLAN, HELENA JASLAN, EUGENIUSZ SKIBICKI, CZESLAWA ERICKSEN, STANISLAW ROGOZ aka STAN ROGOZ, ALBERT JOSEPH FLIS and RICHARD RUSEK Defendants (Responding Parties)

AND BETWEEN

POLISH ASSOCIATION OF TORONTO LIMITED, MAREK MIASIK aka MAREK ADAM MIASIK, MARIA MIASIK, JAN ARGYRIS aka LOUIS JOHN ELIE ARGYRIS aka LOUIS JOHN ARGYRIS aka JOHN ARGYRIS, WLADYSLAW JASLAN aka WLADYSLA JULIAN JASLAN, HELENA JASLAN, EUGENIUSZ SKIBICKI, CZESLAWA ERICKSEN, STANISLAW ROGOZ aka STAN ROGOZ, ALBERT JOSEPH FLIS and RICHARD RUSEK Plaintiffs by Counterclaim

– and –

THE POLISH ALLIANCE OF CANADA, ROBERT ZAWIERUCHA, TADEUSZ MAZIARZ, ELIZABETH BETOWSKI, DANUTA ZAWIERUCHA, TERESA SZRAMEK, ANDRZEJ SZUBA, ADAM SIKORA, ELZBIETA GAZDA, STANISLAW GIDZINSKI, STANISLAW IWANICKI and TADEUSZ SMIETANA Defendants by Counterclaim

COUNSEL: Andrew Stein, for the Plaintiff (Moving Party) Bernie Romano, for the Defendants

HEARD AT TORONTO: March 23, 2011

REASONS FOR JUDGMENT

lauwers j.:

[1] The plaintiff, the Polish Alliance of Canada (the "Alliance"), appeals to the Divisional Court from the decision of Allen J. at [2010] O.J. No. 2520 (S.Ct.) that upheld a ruling by Master L.S. Abrams. Molloy J. granted leave to appeal at [2010] O.J. No. 4295 (Div. Ct.).

[2] The Alliance moved before the Master under rule 34.15(1)(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to strike out Jozef Kazmierczak's affidavit, filed by the defendant the Polish Association of Toronto (the "Toronto Association"), on the ground that Mr. Kazmierczak had refused to answer proper questions during his cross-examination. The Master refused to strike the affidavit. Allen J. upheld the ruling.

[3] For the following reasons, the appeal is allowed in part to the extent noted below.

Factual Background

[4] In this action the Alliance and the Toronto Association dispute the ownership of substantial real estate assets. The Alliance seeks declaratory relief against the Toronto Association and others. The Toronto Association counterclaims for declaratory relief that, under the Constitution and various By-Laws of the Alliance, the General Convention that the Alliance held in December 2007 (the "Convention") was unlawful, the executive elected at the Convention were not validly elected, and certain resolutions adopted at the Convention which affect the property dispute were not validly enacted.

[5] The Toronto Association brought a motion to have Peter Waldmann removed as solicitor of record for the Alliance on the basis that he is in a conflict of interest and might also be a witness, since he was present at the Convention and advised the Alliance as to how it should be conducted.

[6] The Toronto Association filed Mr. Kazmierczak's affidavit in support of its motion. Mr. Kazmierczak was present at the Convention and is a member of a branch of the Alliance located in Barrie, Ontario. He is not a party to this action. However, together with others, he has brought an application against the Alliance (the "Barrie Application") seeking a declaration that the Convention was unlawful and that all resolutions passed at it are invalid; Richard Hammond represents the applicants in the Barrie Application. There is therefore considerable overlap between the two proceedings.

The Cross-examination of Mr. Kazmierczak

[7] Andrew Stein, counsel for the Alliance on the motion to remove Mr. Waldmann, began cross-examining Mr. Kazmierczak on his affidavit on August 21, 2009. Bernie Romano was present as counsel for the Toronto Association.

[8] When Mr. Stein tried to question Mr. Kazmierczak about the Barrie Application, Mr. Romano objected to any such questions because Mr. Hammond was not present and because, in his view, the questions would not be relevant to the Toronto Association's motion. Mr. Romano then said that he wanted to speak to Mr. Kazmierczak off the record. Mr. Stein objected, stating that this was improper since Mr. Kazmierczak was under cross-examination. Despite this objection, Mr. Romano left the room with Mr. Kazmierczak but returned very quickly. He advised Mr. Stein that he was adjourning the cross-examination so that Mr. Kazmierczak could seek legal advice from Mr. Hammond. Mr. Stein objected to the adjournment and told Mr. Kazmierczak that he was not permitted to discuss his evidence with Mr. Hammond. Mr. Romano then left with Mr. Kazmierczak.

[9] Later that day, Mr. Stein wrote to Mr. Romano, referred him to Rule 4.04 of the Rules of Professional Conduct of the Law Society of Upper Canada[^1], and asked him for confirmation "that you have advised Mr. Kazmierczak that he is not allowed to discuss his evidence or this case with anyone." Mr. Stein provided a copy of this letter to Mr. Hammond. He spoke with Mr. Hammond and then wrote him a letter confirming that "[y]ou indicated that you will not have contact with Mr. Kazmierczak in relation to this matter. You indicated that you do not expect to attend the cross-examination of Mr. Kazmierczak as you are not retained".

[10] Mr. Romano also spoke to Mr. Hammond on August 21, 2009, and sent a confirming letter to him on August 26, 2009 stating that he had adjourned the cross-examination "to permit Mr. Kazmierczak to seek legal advice." The letter concluded: "I understand you are going to discuss matters with Mr. Kazmierczak and advise of your position."

[11] On September 1, 2009, Mr. Hammond wrote to Mr. Romano advising that he saw nothing in Mr. Kazmierczak's affidavit that raised issues relevant to the Barrie Application. He took the position that "any questions related to the Application should be refused as irrelevant." He sent a copy of this letter to Mr. Stein on September 9, 2009.

[12] There is no doubt that Mr. Kazmierczak conferred with Mr. Hammond. When his cross-examination resumed on September 11, 2009, the first question Mr. Stein asked Mr. Kazmierczak was whether he had spoken to anyone about his cross-examination. He replied: "I spoke just ask my lawyer. On the last examination I spoke with my lawyer about another question what you asked me not related to this affidavit" [sic].

[13] Mr. Stein then asked Mr. Kazmierczak: "What was the question that you asked him that I asked you?" Mr. Romano instructed Mr. Kazmierczak not to answer on the basis of solicitor and client privilege. Mr. Romano took the position that Mr. Kazmierczak would not answer any questions with respect to the Barrie Application because they would not be relevant and because Mr. Kazmierczak's counsel, Mr. Hammond, had "required that those questions be refused."

The Reasons of the Master

[14] As mentioned, the Alliance moved to strike the affidavit of Mr. Kazmierczak. It sought that relief because Mr. Kazmierczak refused to answer questions about his consultation with his own lawyer, Richard Hammond, before the cross-examination resumed.

[15] Rule 34.15 provides as follows:

34.15(1) Where a person fails ...to answer any proper question,...or to comply with an order under rule 34.14, the court may,

(a) where an objection to a question is held to be improper, order or permit the person being examined to reattend at his or her own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer;

(b) where the person is a party or, on an examination for discovery, a person examined on behalf or in place of a party, dismiss the party's proceeding or strike out the party's defence;

(c) strike out all or part of the person's evidence, including any affidavit made by the person; and

(d) make such other order as is just.

(2) Where a person does not comply with an order under rule 34.14 or subrule (1), a judge may make a contempt order against the person.

[16] The entire decision of the Master on this issue is as follows:

As for the affidavit of Mr. Kazmierczak, I do not agree that it ought not to be before the court on the underlying motion. I understand why it was that Mr. Romano thought it appropriate that the witness consult with Mr. Hammond; and, there is no reason for me to believe, on the evidence before me, that Mr. Hammond interfered with the evidence given by Mr. Kazmierczak or improperly aided Mr. Kazmierczak in any way. Indeed, Mr. Kazmierczak's evidence is that he "... spoke with [his] lawyer, [Mr. Hammond] about [a] ... question ... not related to [the] affidavit [in question on the underlying motion]". I have no reason to doubt that this is so or to believe that Mr. Hammond or Mr. Romano interfered with the substantive aspects of Mr. Kazmierczak's cross-examination. I note that had leave been sought from me to permit Mr. Kazmierczak to consult with Mr. Hammond, leave would have been granted, albeit on terms (given the special circumstances here at play).

The Reasons of the Appeal Judge

[17] The Appeal Judge dismissed the Toronto Association's appeal, holding:

The Master's determination was a factual one. I have no reason to disturb her findings. She straightforwardly set out her reasons for declining to strike Kazmierczak's affidavit, making clear findings of fact based on the evidence before her.

The Reasons of the Leave Judge

[18] The Leave Judge observed at para. 33 of her endorsement that the issues before the Master related "to the administration of justice and the conduct of litigation generally" and involved "ethics and civility between counsel and the interplay between the rules governing civil litigation, common law principles and the Law Society's Code of Conduct."

[19] The Leave Judge granted leave to appeal, and explained at paras. 29-30 of her endorsement:

In my opinion, there is a good argument that the Master ought to have considered the question of onus before concluding there had been no interference with the evidence of the witness. In placing the onus where she did [on the moving party], and permitting the witness to shelter behind refusals to provide the content of the discussions, she made it impossible for the moving party to prove its case. It does not necessarily follow that the Master should therefore have struck out the affidavit. However, the Master failed to even consider what if any remedies might have been appropriate because she placed the onus on the moving party and found, in the absence of evidence, that there had been no interference with the witness.

In my opinion, this is a question of law, upon which the Master was required to be correct. There is good reason to doubt the correctness of the appeal judge's conclusion that this was a straightforward factual determination entitled to deference.

The Standard of Review

[20] The applicable standard of review on an appeal was expressed by Swinton J. in Fresco v. Canadian Imperial Bank of Commerce, (2010), 2010 ONSC 4724, 103 O.R. (3d) 659 (Div. Ct.):

[36] On appeal, the standard of review on a question of law is correctness. The standard of review for findings of fact is palpable and overriding error, while questions of mixed fact and law are on a spectrum. If a legal question can be separated out, it will be reviewed on a standard of correctness. Otherwise, questions of mixed fact and law will not be overturned absent palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, at paras. 8, 10 and 36-37).

This standard applies to decisions of a master: Zeitoun v. Economical Insurance Group, (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131, aff'd (2009), 2009 ONCA 415, 96 O.R. (3d) 639 (C.A.).

The Issues

[21] The issues before the Master and the Appeal Judge were whether it was proper for Mr. Kazmierczak to consult counsel during his cross-examination and, if not, what the consequences should be.

Applicable Law

[22] The protection of the integrity of the fact-finding process is essential to the truth-seeking function of the court, and is reflected in the laws of evidence and civil procedure, in the court's practices, and in the professional ethics expected of lawyers[^2]. It is a fundamental commitment of the system of justice. An important aspect of this process is the need to ensure that the testimony of a witness is that of the witness alone.

[23] In furtherance of this objective, it is a well-established legal principle that, in the absence of a court order or the consent of the other party or parties to a proceeding, a witness shall not communicate with legal counsel in the course of testifying at trial, in a cross-examination or at an examination for discovery.

[24] As Cory J. observed in R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, [1996] S.C.J. No. 122 at para. 13"The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth." The court's truth-seeking function plays out through cross-examination, as Charron J. noted in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, 274 D.L.R. (4th) 385 at para. 35:

Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence.

[25] The importance of the role of cross-examination in the truth-seeking process cannot be overestimated. Dean Wigmore observed: "the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law." Cross-examination, he asserted". . . is beyond any doubt the greatest legal engine ever invented for the discovery of truth."[^3]

[26] It seems self-evident that cross-examination cannot perform its vital truth-testing function if the evidence that the witness provides is actually the evidence of another:

A court before whom an issue is pending has a right to the independent and un-warped testimony of a witness; where the answers are furnished by another, the court obtains neither the language nor the memory of the witness, but only that of his teacher, and where such testimony has been offered and received a fraud is committed on the court.[^4]

[27] In short, the principle is that a witness must provide testimony in cross-examination without assistance. It is therefore improper for counsel to instruct the witness on what to say or to coach the witness during cross-examination.[^5]

[28] A number of rules and practices reflect this principle including, for example, a trial judge's discretion under rule 52.06(1) of the Rules of Civil Procedure to exclude witnesses,[^6] which carries with it the requirement in subrule 52.06(3) that "there shall be no communication to the [excluded] witness of any evidence given during his or her absence from the courtroom, except with leave of the trial judge, until after the witness has been called and has given evidence." As Sopinka et al. state in The Law of Evidence in Canada: "The purpose of excluding witnesses is to preserve a witness' testimony in its original state."[^7] Trial judges routinely admonish witnesses in the course of testifying not to talk to anyone about the evidence they have given or are about to give.[^8]

[29] The same principle applies, with necessary modifications, to examinations for discovery. Paul M. Perell and John W. Morden note in The Law of Civil Procedure in Ontario: "counsel for the party being examined should not interfere with the examination; the examiner is entitled to the evidence of the witnesses and not to that of counsel."[^9] This is clear from rule 31.06(1) of the Rules of Civil Procedure, which provides: "A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant . . ." Similarly, rule 31.08 provides:

Questions on an oral examination for discovery shall be answered by the person being examined but, where there is no objection, the question may be answered by his or her lawyer and the answer shall be deemed to be the answer of the person being examined unless, before the conclusion of the examination, the person repudiates, contradicts or qualifies the answer.

[30] As Professors Mewett and Sankoff note:

The primary reason for prohibiting communication between counsel and witness while testifying at trial is to prevent counsel from telling the witness what he or she should say. The same concern exists during a discovery, and consequently, the same basic restriction against counsel/witness communication should be in place.[^10]

[31] In McLeod v. Canadian Newspapers Co., (1987), 1987 4275 (ON SC), 58 O.R. (2d) 721, [1987] O.J. No. 2598 (S.Ct.), Master Sandler commented on the impropriety of communications between witness and counsel in a discovery and held at pp. 727-28, para. 11:"...it seems to me that there is an analogy to be drawn between the conduct of a lawyer in communicating with his witness/client during an adjudicative proceeding on the one hand, and during a non-adjudicative proceeding such as an examination for discovery or cross-examination before a special examiner on the other. Particularly because there is no judge or master present to supervise the conduct of the lawyer and the witness, counsel should show great restraint and take care not to make unnecessary or inappropriate intrusions into the discovery or cross-examination being conducted of his client so as to interfere with the rights of discovery or cross-examination by the opposite party. In an extreme case, the party risks an order for a second discovery or the dismissal of his claim or defence, and the lawyer risks disciplinary proceedings before the Law Society[^11]."

[32] Rule 31.08 applies with necessary modifications to cross-examinations on affidavits under rule 39.02 by virtue of rule 1.04(2) of the Rules of Civil Procedure. In 413528 Ontario Ltd. v. 951 Wilson Avenue Inc., supra, at p. 47, Master Sandler applied the McLeod reasoning to a cross-examination on an affidavit, observing: "The prohibition is designed to prevent a counsel from interfering with the evidence being given by the witness during cross-examination or aiding the witness in any way."

[33] In some contexts, such as long discoveries and trials, an absolute prohibition on contact between counsel and the witness might be impractical[^12]. Where counsel believes some contact with the witness is necessary and opposing counsel does not agree, the party seeking such contact should adjourn the examination and move for directions under rule 34.14.

The Master's Decision

[34] The Master clearly understood that the circumstances in this case engaged the prohibition against communications between a witness and his legal counsel in the course of giving testimony, in this case, in a cross-examination. In such circumstances, the Master was required to address the issue of whether the court could be satisfied that any subsequent evidence of the witness was truly the independent testimony of the witness unaffected by any influence of his legal counsel.

[35] It is my understanding that the content of Mr. Kazmierczak's communications with Mr. Romano and with Mr. Hammond was not disclosed on the basis of solicitor and client privilege. The Master was therefore handicapped because of an incomplete evidentiary record.

[36] In such a situation the court must, in effect, put the party in breach to an election: to waive privilege and provide full disclosure of the circumstances of the breach and the content of the communications, including privileged communications, or if the party does not wish to waive privilege, to withdraw the witness's evidence. If the party in breach elects to provide full disclosure, then the innocent party will be free to cross-examine the witness and others, including counsel, as witnesses, in pursuit of a remedy for the breach. Once the evidence is available, the court can assess which of the remedies available under rule 34.15 should be applied.

[37] The Master did not proceed in this manner, however. Instead she concluded that she could rely entirely on the transcript of the re-convened cross-examination in which the witness merely stated that he spoke with his lawyer about a question that the witness said was not related to his affidavit in the proceeding. The Master did not have any affidavit evidence before her from either the witness or his legal counsel regarding the substance of the conversation between them. By proceeding in this manner, she also denied the plaintiff an opportunity to cross-examine the witness on the substance of the conversation between the witness and his counsel.

[38] The Master thereby effectively placed the onus on the plaintiff to establish facts that would cast doubt on the reliability of the witness's testimony. She erred in law by reversing the onus of proof and made a palpable and overriding error in reaching her conclusion on the basis of the necessarily incomplete facts before her.

The Appeal Judge's Decision

[39] As set out above, the Appeal Judge upheld the Master's decision on the basis that it was a factual decision and, implicitly, that the plaintiff had failed to demonstrate a palpable and overriding error in respect of such finding.

[40] For the reasons set out above, I am of the opinion that the Appeal Judge erred in reaching this conclusion.

Determination of this Court

[41] Therefore the decisions of the Master and of the Appeal Judge must be set aside.

[42] The Alliance seeks an order striking out Mr. Kazmierczak's affidavit and evidence. Counsel was, however, unable to refer the court to a single case in which that form of relief has been granted. Such a strong remedy should be a last resort, reserved for those rare situations where coaching by counsel during cross-examination might irremediably taint the witness's evidence and thereby impair the integrity of the fact-finding process, or where cross-examination about the coaching before or at trial might not expose the truth.[^13] The court should, however, be reluctant to exclude relevant evidence, consistent with the fundamental purpose of the law of evidence which is, after all"to facilitate the introduction of all logically relevant facts without sacrificing any fundamental policy of the law which may be of more importance than the ascertainment of truth."[^14]

[43] Accordingly, the matter is remitted to the Master for a determination based on any evidence that the defendants may elect, as noted in para. 36 above, to produce from the witness and his legal counsel regarding the substance of the conversation between them, for which purpose leave to adduce further evidence is granted to the defendants. For greater certainty, nothing herein prevents the plaintiff from exercising its rights of cross-examination in respect of such evidence or its rights under Rule 39.03 in such proceeding.

Costs

[44] The Alliance, the moving party, is entitled to costs. If the parties cannot agree on the quantum, the court will accept written submissions on a respective ten-day turnaround, beginning with the moving party and ending with the moving party's reply.

Lauwers J. Ferrier J. Wilton-Siegel J.

Date of Release: July 5, 2011

[^1]: Rule 4.04(d) of the Rules of Professional Conduct of the Law Society of Upper Canada provides: Subject to the direction of the tribunal, the lawyer shall observe the following rules respecting communication with witnesses giving evidence: (d) during cross-examination by an opposing lawyer, the witness's own lawyer ought not to have any conversation with the witness about the witness's evidence or any issue in the proceeding; Commentary: If any question arises whether the lawyer's behaviour may be in violation of this rule, it will often be appropriate to obtain the consent of the opposing legal practitioner or leave of the tribunal before engaging in conversations that may be considered improper. This rule applies with necessary modifications to examinations out of court.

[^2]: I rest this decision on the common law and the court's inherent jurisdiction to control its own process, and not on Rule 4.04(d) of the Rules of Professional Conduct of the Law Society of Upper Canada as binding legal authority. Like Master Sandler in McLeod v. Canadian Newspapers Co. (1987), 1987 4275 (ON SC), 58 O.R. (2d) 721, [1987] O.J. No. 2598 (S.Ct.), at para. 11, while I find the Rule to be helpful, I do not see it as equivalent to the Rules of Civil Procedure.

[^3]: John Henry Wigmore et al., Evidence in Trials at Common Law, Chadbourn rev. (Toronto: Little, Brown and Company, 1974), sec. 1367 at 32.

[^4]: G.W. Warvell, Essays in Legal Ethics, 1902 reprint (Littleton, Co.: Fred B. Rothman & Co., 1980) at 113, cited in Alan W. Mewett & Peter J. Sankoff, Witnesses, loose-leaf (Scarborough: Carswell, 1991) at section 6.2 (a) at page 6-4.

[^5]: Mewett and Sankoff, supra, section 6.2(a) at page 6-4, section 6.3 (a) at pages 6-6, 6-7. There are exceptions to the general rule that are not germane to this decision.

[^6]: See generally Mewett and Sankoff, supra, section 2.3 at page 2-34 and following.

[^7]: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3rd ed. (Toronto: LexisNexis, 2009), section 1620 at page 1099.

[^8]: Failure to comply can result in a mistrial: Drosos v. Chong, [1992] O.J. No. 520 (Gen. Div.); the evidence can instead be discounted: Crawford v. Ferris, [1953] O.J. No. 249 at paras. 4-6 (H.C.J.).

[^9]: Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, (Markham, Ont.: LexisNexis, 2010) at 502.

[^10]: Mewett and Sankoff, supra note 3, section 6.3 (b) at p. 6-10.1.

[^11]: See also, Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2006), 2006 35612 (ON SC), 83 O.R. (3d) 438 (S.C.), per Master McLeod at paras 14, 16, 27, 30, 39, 43 (6,11); Kudlak v. Sutherland (2006), 14 C.P.C. (6th) 133, [2005] O.J. No. 3395 (S.Ct.) per Pierce J. at para. 16; Kay v. Posluns (1989), 1989 4297 (ON SC), 71 O.R. (2d) 238, [1989] O.J. No. 1914 (H.C.), per Steele J. at paras. 23, 24, 51.

[^12]: See John Sopinka, Donald B. Houston & Melanie Sopinka et al., The Trial of an Action, 2nd ed. (Toronto: Butterworths, 1998) at 128 -29; Mewett and Sankoff, supra, at section 6.3 (b) at page 6-10.1; and 413528 Ontario Ltd. v. 951 Wilson Avenue Inc. (1989), 1989 4066 (ON SC), 71 O.R. (2d) 40 (S.C.), per Master Sandler at 46-47.

[^13]: Contra, Sopinka et al, The Trial of an Action, supra, at page 127: "There is no rule of evidence which would render inadmissible the evidence of a witness with whom an improper communication was made while the witness was under cross-examination. The fact of such communication might, however, be a consideration in the weight to be given to the testimony." And see Sopinka et al., The Law of Evidence in Canada, supra, at section 116.133, page 1142: "It is questionable whether, in addition to being a rule of ethical conduct, this rule is one of evidence which can result in rejection of evidence. Breach of the rule may, however, affect the weight to be given to the evidence."In our view, the issue is broader, as these reasons set out.

[^14]: Sopinka et al, The Law of Evidence in Canada, supra, section 1.36 at page 12.