Court File and Parties
Court File No.: 628/18 Date: 2018-08-10 Superior Court of Justice - Ontario
Re: Anser Farooq, Applicant And: Heather Dawn Hawkins, Respondent
Before: The Honourable Mr. Justice A. Pazaratz
Counsel: Ms. S. Balcharan, Agent, for the Applicant Mr. J. Dhaliwal and Ms. J. L. Feldman, Counsel, for the Respondent
Heard: August 10, 2018
Endorsement
Overview
1This is a high conflict file transferred from Peel.
2As I comment on the procedural irregularities which have rendered today a complete waste of time, I would note the endorsement of March 7, 2018 by Justice Daley in Brampton who stated: “Simply put, this case management meeting was an absolute waste of time and the fault for that rests with both parties and counsel.”
3Before me today is the Applicant’s motion dated June 22, 2018. The Applicant father basically seeks compliance by the mother with respect to certain “information sharing” provisions in a final order dated October 11, 2017, relating to the parties’ four children.
4So far so good.
The Evidentiary Issue
5But the only affidavit material in support of the Applicant’s motion is an affidavit of a lawyer Hamzah Iqbal who describes himself as “a lawyer assisting counsel, Shivani Balcharan.”
a. Mr. Iqbal is not the Applicant’s lawyer. b. As of June 25, 2018 Ms. Balcharan wasn’t the Applicant’s solicitor of record either. The Applicant had filed a Notice of Change of Representation on March 7, 2018, terminating Ms. Balcharan’ services and indicating he would be representing himself. c. Indeed, Justice Daley’s endorsement of March 7, 2018 includes at paragraph 2: “Matters quickly spun out of control – with the Applicant terminating his counsel’s retainer in front of the court and taking over submissions on his own.”
6So the only evidence the Applicant has provided in support of his motion is an affidavit from a lawyer (who is not his lawyer) who is assisting a lawyer (who is not his lawyer).
a. Mr. Iqbal’s affidavit includes some non-controversial historical summary. b. But it also includes very specific evidence about who did what; allegations of misconduct or inappropriate behaviour by the Respondent; bad faith by the Respondent; and allegations of specific non-compliance by the Respondent with respect to the existing order. c. Mr. Iqbal would not have had any personal information about any of this. d. Even Ms. Balcharan (who periodically is involved either as counsel or as agent) wouldn’t have had personal knowledge of the facts which form the basis of the Applicant’s motion. e. This is basically double hearsay through two lawyers.
7The Respondent mother filed her own affidavit sworn August 1, 2018 disputing the Applicant’s motion, and denying the allegations against her.
8The Applicant could have – and should have – filed his own affidavit setting out his narrative and the facts he was relying on. He didn’t.
9The Applicant could have – and should have – filed his own affidavit if he was disputing the Respondent’s evidence in her affidavit. He didn’t.
10Instead, when the matter was called this morning, Ms. Balcharan attended as agent for the Applicant. (For inexplicable reasons, the Applicant initially wanted to wait outside of the courtroom while his motion was being dealt with, but since he represents himself, I asked that he attend in the courtroom for his motion.)
11Ms. Balcharan asked the court to consider receiving a supplemental affidavit on behalf of the Applicant – yet another affidavit signed by a lawyer Osman Alwi. Once again Mr. Alwi didn’t pretend to have any personal information about anything. Mr. Alwi simply started his affidavit with “I am assisting the Applicant’s counsel/agent, Ms. Balcharan in this matter and as such I have knowledge of the matters to which I herein depose.”
12Ms. Balcharan explained that the sole purpose of Mr. Alwi’s affidavit was to resist what was anticipated to be a request for an adjournment by the Respondent’s counsel.
a. But Mr. Dhaliwal on behalf of the Respondent didn’t request an adjournment. He indicated he was quite prepared to argue the motion based on the lengthy materials in the record. b. After I alerted Ms. Balcharan to my concern about lawyers filing affidavits on behalf of clients, Ms. Balcharan advised that she was withdrawing Mr. Alwi’s affidavit because it was no longer relevant.
13But that still left us with Mr. Iqbal’s affidavit.
Principles on Lawyers' Affidavits
14There 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. Among the instructive cases: Pavao v. Ferreira, 2018 ONSC 1573 (SCJ); CAS v. N.A.-M., 2018 ONSC 978 (SCJ); Ceho v Ceho, 2015 ONSC 5285 (SCJ). Some basic principles emerge:
a. Rule 14(17) of the Rules of Civil Procedure sets out how evidence may be presented on a motion. This includes affidavits. b. Rule 14(18) requires that “an affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.” c. Rule 14(19) specifies the limited circumstances in which an affidavit can contain information obtained from another person (and the source must be named). d. Rule 14(19) is permissive, not mandatory. Its primary function is to provide a controlled exception to the hearsay rule. A judge retains the discretion to refuse to admit the hearsay evidence based on information and belief when the information is being led for the truth of its contents. e. The caselaw recognizes that a failure to attribute hearsay evidence is not in itself fatal in circumstances where it is possible to glean the source of the information from attached exhibits, or circumstances where the matters referred to are not contentious. f. There are very few circumstances in which lawyers – or staff members of law firms – should be filing affidavits on behalf of parties, in contentious proceedings. This should be limited to summarizing non-contentious facts or documents, or providing an agreed upon chronology. On some procedural motions a lawyer’s affidavit might assist in focussing on the legal issue. g. But as a general rule – particularly in family court (and especially in family proceedings relating to children) -- parties should always file their own affidavits setting out their first-hand knowledge, observations and experiences. If there are unique circumstances in which a party cannot file their own affidavit, those circumstances should be specifically set out. h. There is no Rule that allows lawyers – or lawyers assisting lawyers – to file affidavits on behalf of parties, setting out contentious factual information, or advancing evidence dealing with the substance of a claim. If there’s any doubt about what’s contentious and what’s not, the safer course is to simply have the party file an affidavit setting out all of the evidence. i. Motions are very important in family proceedings. Even when proper affidavit materials are filed, the court must still struggle with dealing with untested materials. It is inappropriate to needlessly add a further layer of uncertainty, by allowing lawyers to tell the story and advance the narrative, in circumstances in which the party could and should be telling their own story. j. Affidavits by lawyers or legal staff are problematic because they are not so easily subject to scrutiny. Parties can be cross-examined on their affidavits. But it is much more cumbersome and impractical to raise the issue of cross-examining lawyers or legal staff. k. Speaking plainly, having a lawyer or legal staff member swear an affidavit on behalf of a client is lazy, and breaches counsel’s responsibility to advance a client’s evidence in a proper and admissible manner.
Analysis
15In the case before me, the Applicant took over during submissions by Ms. Balcharan.
a. He indicated that he himself is a lawyer so he knows the rules. b. He acknowledged the basis of the court’s concern about improper affidavit evidence. c. He acknowledged that there was no reason he couldn’t have signed his own affidavit. But he said he felt it was better to have someone else sign an affidavit, so he could make arguments relying on that evidence. d. He suggested he could instantly rectify the problem by having the matter stood down while he signed an affidavit attesting to all of the contents of Mr. Iqbal’s affidavit of June 25, 2018. e. Not surprisingly, the Respondent’s counsel objected to the Applicant’s suggestion that – mid-way through argument of the motion – evidentiary problems could be overcome by having the Applicant sign a fresh affidavit.
16I make no comment as to the merits of the Applicant’s position.
a. But his motion relies entirely on an affidavit of a lawyer which is completely inappropriate and presumptively inadmissible. b. Ms. Balcharan should have known this. c. And as a lawyer Mr. Farooq should have known this.
17The Applicant insisted he wanted his motion to be argued. The Respondent consented to the motion proceeding. The Applicant and his agent/lawyer must assume responsibility for the fact that they insisted on arguing a motion where their defective materials meant that there was no possibility of succeeding.
18Counsel 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.
Disposition
19The Applicant’s motion is dismissed, without prejudice to being addressed as follows.
a. These parties already have a four day trial set for the sittings of November 26, 2018 in relation to other child-related issues. Because they each keep hiring and then firing their lawyers, when Justice Madsen set this trial date she made it peremptory on both parties whether they have counsel or not. b. The issues in the Applicant’s motion dated June 22, 2018 may be dealt with at the oral hearing. c. These parties have a history of consuming excessive judicial resources in an inefficient and wasteful manner, and I am not going to allow the Applicant to bring another motion on these same issues. He had his chance to proceed by motion, and really he wasted that opportunity. Because we are dealing with children’s issues, I will still allow him to pursue his claims. But he will have to do it at the oral hearing.
Costs
20The Respondent seeks costs in the sum of $2,500.00.
21The Applicant says the amount being claimed is excessive, and it should be reduced pursuant to Rule 24(4) of the Rules of Civil Procedure because even though the Respondent was successful today, she had acted unreasonably by failing to provide information set out in the October 11, 2017 order. He says the Respondent forced him to bring this motion and that his motion had the salutary effect of causing the Respondent to partially rectify her failures. But he says there is still important information the Respondent has not provided.
22As I mentioned, I am not in a position to comment on the merits of the Applicant’s claims. If I am not in a position to determine who is right and who is wrong, then I am not able to address the fundamental question in Rule 24(4): Whether a successful party acted unreasonably.
23The only thing that is clear is that the Applicant’s motion was defective because of the evidentiary issue.
24The Respondent filed two offers dated August 6, 2018 which included the option of either having the Applicant’s motion dismissed without costs, or to adjourn the motion to allow a further exchange of information. The Respondent’s offers trigger Rule 18(14) of the Rules of Civil Procedure consequences.
25Notably the Applicant had filed an offer which did not trigger Rule 18(14) consequences. It included the Respondent paying the Applicant $3,000.00 costs.
26The Respondent was entirely successful and filed relevant offers to settle.
27The Applicant shall pay to the Respondent costs of this motion fixed at $2,500.00 inclusive of HST & disbursements.
Pazaratz J.
Date: August 10, 2018
