SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-338-10
DATE: 2012-01-27

RE: Engineered Coatings Ltd., Cindy Nardangeli, Peter Nardangeli, Sandra Corbett and Thomas Corbett - Plaintiffs /Respondents

AND:

Jacques Daoust, Philip Handy, Ralphie’s Painting, JDCMI Coatings and Jacques Daoust Costing Management Inc. – Defendants/ Applicants

BEFORE: The Honourable Mr. Justice James W. Sloan

COUNSEL:
Anthony Keller, for the Defendants /Applicants

Donald G. Kidd, for the Plaintiffs/ Respondents

HEARD: January 16, 2012

ENDORSEMENT

[ 1 ] This action (“ECL Action”) was commenced in Guelph in May of 2007 as file #334/07 and transferred to Kitchener in 2010 as file # CV-338-10.

[ 2 ] Jacques Daoust had previously sued Engineered Coatings Ltd., ECL Engineered Coatings Ltd., Cindy Nardangeli, Peter Nardangeli, and Thomas Corbett in Kitchener under file # C-209-02 in February 2002 (“Daoust Action”).

[ 3 ] A third action was commenced in 2002 under file number 13534-02/OT which arose out of dealings the above mentioned parties had with the Royal Bank. The Royal Bank brought an action against Jacques Daoust, Cindy Nardangeli, Peter Nardangeli, Sandra Corbett and Thomas Corbett. This action was settled with respect to Mr. Daoust in 2007 and has been transferred to the Kitchener Court.

[ 4 ] Mr. Daoust brings this motion for summary judgement seeking to dismiss the ECL Action. Mr. Keller has filed an affidavit of his law clerk in support.

[ 5 ] In response Mr. Kidd filed a responding affidavit from his law partner Randy Brant.

[ 6 ] The motion before me proceeded on the narrow issue of whether or not it was proper for Mr. Kidd to file and rely on Mr. Brant’s affidavit. Mr. Brant is a partner of Mr. Kidd and was previously the lawyer of record for ECL in this action.

[ 7 ] Mr. Keller asks that I strike Mr. Brant’s affidavit and grant Mr. Daoust summary judgment on the grounds set out in his material.

[ 8 ] The options at my disposal are to find that:

a. the affidavit is proper and schedule a hearing date for the motion;

b. the affidavit is improper, strike it out and grant summary judgment for Daoust;

c. the affidavit is improper and give Mr. Kidd an opportunity to file new material; or

d. parts of the affidavit are improper and give Mr. Kidd an opportunity to file new material.

[ 9 ] Mr. Keller relies entirely on the judgment of Justice Gordon in Weber v. Erb & Erb Insurance Brokers Ltd., [2006] O.J. No. 1279 (Ont. S.C.) .

[ 10 ] In Weber, at paras. 37-8, Gordon J. held that it was improper for the law partner of Counsel to rely on an affidavit whose content was made up of hearsay evidence, including information from the very counsel arguing the motion.

[ 11 ] His Honour also took exception to the fact that the law partner’s affidavit was filed on the premise that the client was unavailable when such was not the case.

[ 12 ] Gordon J. states that it is unacceptable for persons in the employ of a law firm to tender affidavits in contentious proceedings as the evidence should be from a deponent with actual knowledge, usually the client.

[ 13 ] Essa (Township) v. Guergis, (1993) 15 O.R. (3d) 573 (Div. Ct.), is a 1993 Divisional Court case which does not appear to have been brought to Gordon J.’s attention and in that case both the Law Society of Upper Canada (“LSUC”) & The Advocate Society were interveners.

[ 14 ] The motions judge in the Essa case ruled that affidavits filed by Mr. Thompson, a junior lawyer in the firm representing Essa, could not be used on the motion. Essa appealed to the Divisional Court.

[ 15 ] The Divisional Court noted that the LSUC Rules of Professional Conduct (“LSUC Rules”) differed from the Canadian Bar Association (“CBA”) Code of Professional Conduct (“CBA Code”).

[ 16 ] While the CBA Code prohibits counsel from using an affidavit of one of their partners or associates, the LSUC Rules do not.

[ 17 ] The Divisional Court noted that in Ontario lawyers frequently appear on motions where their partners have filed affidavits even when the matters are extremely controversial.

[ 18 ] The Divisional Court concluded that since Mr. Thompson did not intend to act as counsel on the matter, the motion could proceed on the affidavits filed.

[ 19 ] In G-Civil Inc. v. Canada (Minister of Public Works & Government Services), [2006] O.J. No. 5092 (Ont. S.C.) , Power J. distinguished the Weber decision because the matters deposed to by the associate lawyer were within his knowledge and none of the contents were contentious, as they dealt with procedural steps taken in the action and late notice of a jurisdictional issue.

[ 20 ] In McNevan v. Agrico Canada Ltd., 2011 ONSC 2035 , the Superior Court accepted affidavit evidence sworn by an assistant at the counsel’s law firm despite the fact that it was largely based on a dated affidavit sworn by the client and it left the court without the “best evidence” because:

a. affidavits offer some circumstantial guarantee of trustworthiness with respect to the receipt of hearsay as they are sworn under oath; and

b. Rule 1.04(1) of the Rules of Civil Procedure , R.R.O. 1990, REGULATION 194, states that “these rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. ”

[ 21 ] In Ontario v. Rothmans Inc., 2011 ONSC 5326 , the Superior Court accepted affidavit evidence sworn by a law clerk in the Crown law office because

a. the clerk was not precluded from filing the affidavit by subrule 4.02(1) of the LSUC Rules ; and

b. having already struck a portion of the affidavit for other reasons, all that remained of the affidavit was a statement claiming the clerk downloaded various documents whose authenticity would still have to be proven.

[ 22 ] Mr. Keller specifically takes issue with paras. 4-10, 15, 18-20.

[ 23 ] Para. 4 is factual in nature. If Mr. Keller wants to cross-examine Mr. Brant he is certainly entitled to do so.

[ 24 ] The evidence set out in para. 5 should come from the client as they would possess this knowledge. Doing otherwise shields the client from possible cross-examination and is therefore inappropriate.

[ 25 ] The statements in para. 6 should be supported with letters and not just be Mr. Brant’s understanding.

[ 26 ] In para. 7 it is inappropriate for Mr. Brant to give evidence based on hearsay obtained from Mr. Kidd, counsel on the motion.

[ 27 ] Paras. 8-9 appear to be facts within Mr. Brant’s personal knowledge and are therefore acceptable.

[ 28 ] With respect to paras 10 & 15, the letters (etc.) (as set out with respect to reasoning regarding para. 6) should be attached as exhibits so the court has the best evidence before it to bolster Mr. Brant’s evidence.

[ 29 ] Paras. 18 & 20 are improper since Mr. Brant is submitting his opinion on what the law is.

[ 30 ] Para. 19 should be the client’s evidence and all government notices (etc.) should be attached. It is also improper to set out what Mr Brant thinks is the law in his affidavit. That is for Mr Kidd to do by argument or case law.

[ 31 ] In summary I find that paras. 5-7, 10, 15, 18-20 are improper. I therefore strike out Mr. Brant’s affidavit with leave for Mr. Kidd to file new responding material by February 15, 2012.

[ 32 ] If the parties are unable to agree on costs Mr. Keller shall forward his brief submissions on costs to me by February 10, 2012. Mr. Kidd shall forward his response to me by February 20, 2012. Mr. Keller shall then forward his reply, if any, to me by February 27, 2012.

[ 33 ] This matter shall be adjourned to the ready list on Monday February 27, 2012 unless the parties arrange another date with the trial coordinator.

[ 34 ] I am not seized of this matter.

James W. Sloan J.

Date: January 27, 2012