COURT FILE NO.: CV-17-583406-00CP DATE: 2019/05/21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTIAN EDUARDO GUTIERREZ Plaintiff

• and -

THE WATCHTOWER BIBLE AND TRACT SOCIETY OF CANADA, WATCH TOWER BIBLE AND TRACT SOCIETY OF PENNSYLVANIA, and WATCH TOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. Defendants

Counsel: Bryan C. McPhadden and E. Sakure for the Plaintiffs Mahmud Jamal and W. David Rankin for the Defendants, Watch Tower Bible and Tract Society of Pennsylvania and Watchtower Bible and Tract Society of New York, Inc. Glenn Zakaib and David Elman for the Defendant, The Watchtower Bible and Tract Society of Canada

Proceedings under the Class Proceedings Act, 1992

HEARD: May 2, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] This preliminary motion to strike three affidavits in their entirety raises the issues of: (a) the use of preliminary motions to strike affidavits as opposed to having the admissibility of affidavit evidence determined by the motion's judge or master at the hearing of the motion; (b) the circumstances in which an affidavit should be struck for contravening the Rules of Civil Procedure; and, (c) the use and misuse of lawyer's affidavits as evidence on interlocutory motions.

[2] In this proposed class action under the Class Proceedings Act, 1992,[^1] the Plaintiff Christian Eduardo Gutierrez sues: (a) The Watchtower Bible and Tract Society of Canada ("Watchtower-Canada"); (b) Watchtower Bible and Tract Society of Pennsylvania ("Watchtower-Pennsylvania"); and, (c) Watchtower Bible and Tract Society of New York, Inc. ("Watchtower-New York").

[3] Mr. Gutierrez has a pending motion to add parties; namely: (a) Melissa White and Sandra Hall, as parties' plaintiff; and (b) Christian Congregation of Jehovah's Witnesses ("the Congregation"), as a party defendant.

[4] There is also a pending motion brought by Watchtower-Pennsylvania and Watchtower- New York to have the action stayed as against them on the grounds that this court does not have jurisdiction simpliciter over these foreign defendants. Both the joinder motion and the jurisdiction motion are scheduled to be heard on August 2, 2019.

[5] In support of his joinder motion and in opposition to the foreign Defendants' jurisdiction motion, Mr. Gutierrez has delivered three affidavits from Peter Tuovi, who is a partner of McPhadden, Samac, Touvi LLP, the law firm that is lawyer of record and the proposed Class Counsel for Mr. Gutierrrez's proposed class action.

[6] Watchtower-Pennsylvania and Watchtower-New York now bring a preliminary motion to strike all three of Mr. Tuovi's affidavits on the grounds that the affidavits are: (a) non-compliant with the Rules of Civil Procedure; and (b) improper lawyer's affidavits that are non-compliant with the Rules of Civil Procedure and the Rules of Professional Conduct and if not struck would disqualify Bryan C. McPhadden of McPhadden, Samac, Touvi LLP from arguing the motion.

[7] For the reasons that follow, the three affidavits are struck with leave to deliver an Affidavit of Documents from Mr. Tuovi confined to documents that: (a) were exhibits to his three affidavits; and (b) are relevant to the joinder motion or the jurisdiction motion.

B. Procedural and Factual Background

[8] On September 23, 2017, Mr. Gutierrez commended a proposed class action against Watchtower-Canada, Watchtower-Pennsylvania, and Watchtower-New York. The action is against a religious organization for institutional sexual abuse. The essential allegation is that the Defendants failed to maintain adequate policies and procedures to prevent and to address sexual abuse within the organization.

[9] After Mr. Gutierrez commenced his action, a year passed, and on August 3, 2018, Mr. Gutierrez brought a motion to add Mesdames White and Hall as plaintiffs and the Congregation as a defendant and to amend the Statement of Claim accordingly.

[10] The joinder motion was supported by a 106-page and 42-paragraph affidavit (with exhibits A to R) from Mr. Tuovi dated August 3, 2018. This is Mr. Tuovi's first affidavit.

[11] On October 4, 2018, Watchtower-Pennsylvania, and Watchtower-New York brought a cross-motion to challenge the jurisdiction of the Ontario court. The motion was supported by affidavits of Richard Devine, Gary Breaux, and Thomas Jefferson Jr., all dated October 3, 2018. Mr. Devine is an officer and director of Watchtower-Pennsylvania. Mr. Breaux is an officer and director of Watchtower-New York, and Mr. Jefferson, Jr. is an officer and director of the Congregation.

[12] As it is a matter that goes to relevancy, it is worth noting that the foreign Defendants submit that the Ontario court does not have a real and substantial connection with them. They make no submission that if the court has jurisdiction simpliciter, then the Ontario Court is nevertheless forum non-conveniens. The cross-motion is about the non-discretionary aspects of a jurisdiction motion. In other words, if the foreign defendants, who have not attorned to the court's jurisdiction, lose the jurisdiction motion, they concede that the Ontario court is forum conveniens.

[13] Later in October 2018, Watchtower-Pennsylvania, and Watchtower-New York delivered an affidavit dated October 24, 2018 from Rodney Jung, who is a director of Watchtower-Canada.

[14] On January 2, 2019, in response to the jurisdiction motion and as the reply affidavit for Mr. Gutierrez's own joinder motion, Mr. Gutierrez delivered a 294-page, 113-paragraph affidavit (with exhibits A to QQ) sworn by Mr. Tuovi dated January 2, 2019. This is Mr. Tuovi's second affidavit.

[15] On January 11, 2019, there was a case conference, and I scheduled May 2, 2019 as a date for bringing any preliminary motions and a date for the joinder and jurisdiction motions. That date was later changed to August 2, 2019.

[16] In February 2019, Watchtower-Pennsylvania and Watchtower-New York delivered affidavits from Joel Taylor, Mr. Devine, and Mr. Jefferson Jr., all dated February 26, 2019. Mr. Taylor is an associate general counsel for Watchtower-New York. These affidavits were the reply affidavits for the jurisdiction motion.

[17] In March 2019, Watchtower-Pennsylvania, and Watchtower-New York delivered another affidavit from Mr. Taylor dated March 8, 2019.

[18] The evidentiary record for the two motions was thus closed, and later in the month of March, the witnesses for Watchtower-Pennsylvania, and Watchtower-New York were cross-examined on their affidavits.

[19] Counsel for the foreign defendants, however, did not cross-examine Mr. Tuovi on his two affidavits, and, instead, the foreign Defendants' counsel wrote to Mr. Gutierrez's counsel to confirm that the foreign Defendants would move to strike out the affidavits on May 2, 2019, the date that had been scheduled for preliminary motions, such as a refusals motion.

[20] The cross-examinations were completed, but on April 4, 2019, Mr. Gutierrez delivered a third affidavit of Mr. Tuovi dated April 2, 2019 in response to the to Watchtower-Pennsylvania, and Watchtower-New Yorks' jurisdiction motion. The affidavit was 82 pages with 15-paragraphs with four exhibits.

[21] As noted, the third affidavit was delivered after the cross-examinations of the foreign Defendants' affiants. Apparently following the adage that it is better or easier to seek forgiveness than permission, Mr. Gutierrez, did not obtain leave pursuant to rule 39.02(2) of the Rules of Civil Procedure to deliver his third affidavit.

[22] On April 25, 2019, Mr. Gutierrez delivered a fourth affidavit from Mr. Tuovi dated April 25, 2019. This affidavit was in response to the motion now before the court brought by Watchtower-Pennsylvania, and Watchtower-New York to have Mr. Tuovi's three affidavits struck from the record.

[23] In his three affidavits that are the subject matter of the preliminary motion, Mr. Tuovi expresses what is hearsay evidence; i.e., he was not a participant in the events who saw, heard, or did anything himself.

[24] The bulk of Mr. Tuovi's evidence is a matter of rearticulating what he has been told by his law firm partner, Bryan McPhadden, who has carriage of this action for Mr. Gutierrez. The Tuovi affidavits states that: "[e]xcept where otherwise specifically indicated below, I am advised of the following by Mr. McPhadden and verily believe same to be true."

[25] There are no paragraphs of the Tuovi affidavits where Mr. Tuovi has personal knowledge of any facts. There are, however, a few paragraphs where the source of Mr. Tuovi's information and belief is given as being Mr. Gutierrez or as being Mesdames White and Hall, the proposed new plaintiffs.

C. Discussion and Analysis

1. Jurisdiction to Strike Affidavits

[26] For the purposes of this motion to strike Mr. Tuovi's three affidavits, the relevant rules are rules 1.04 (1), 4.06 (2), 25.11, 37.10 (6), 39.01 (4), 39.02 (1)(2) which state:

INTERPRETATION

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceedings on its merits.

Contents [Affidavit]

4.06 (2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.

STRIKING OUT A PLEADING OR OTHER DOCUMENT

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

Factum [on Motions]

37.10 (6) A party may serve on every other party a factum consisting of a concise argument stating the facts and law relied on by the party.

Contents - Motions

39.01(4) An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

EVIDENCE BY CROSS-EXAMINATION ON AFFIDAVIT

On a Motion or Application

39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.

(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

[27] As appears from the above rules, the Rules of Civil Procedure permit hearsay evidence for motions. An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit. A statement in an affidavit that: (a) does not state the source of the affiant's information; or (b) contains inadmissible hearsay, legal and factual argument belonging in the factum, inflammatory rhetoric, or offensive allegations made for the purposes of prejudicing another party may be struck out in whole or in part.[^2] Similar to the court's jurisdiction to strike paragraphs in pleadings, or documents filed on an application, the court may strike out paragraphs in an affidavit that are frivolous, scandalous, or vexatious or that may prejudice or delay the fair hearing of a motion.[^3] Legal argument and legal submissions belong in a factum and not an affidavit and may be struck out.[^4]

[28] Typically, a motion to strike paragraphs from an affidavit is made at the same time as the primary motion. The general and prevalent rule is that it is for the court that hears the motion to determine whether material should be struck from an affidavit, and a pre-emptive motion should be determined only in the clearest cases.[^5] In 1196303 Ontario Inc. v. Glen Grove Suites Inc.,[^6] Justice D.M. Brown, as he then was, said that the proper time to strike an affidavit was at the hearing of the motion or application and that a pre-emptive motion should only be brought in the rarest and most extraordinary cases. In Jacob v. Playa El Agua Development Limited Partnership,[^7] Master MacLeod, as he then was, stated that it only in extraordinary cases would a preliminary motion be appropriate.

[29] In Neighbourhoods of Windfields Limited Partnership v. Death,[^8] Justice D.S. Ferguson said that evidence should not be struck on an interlocutory motion unless there is some special reason to do so. One special reason might be where the affidavit is clearly improper and would inevitably give rise to extraordinary cost or difficulty for the opposing party.[^9] Another special reason arises when the affidavit contains clearly irrelevant and scandalous material that impugns the character of a party.[^10]

[30] In Neighbourhoods of Windfields Limited Partnership v. Death, Justice Ferguson reasoned that pre-emptive motions to strike affidavits were not productive because: (a) granting such a preliminary motion will encourage more such motions and contribute to cost and delay; (b) the motions are unnecessary because the motions judge will be in an equally good or better position to determine admissibility; (c) judges, including motions judges, know how to disregard inadmissible evidence and not have it influence their judgment; and, (d) the motions judge can sanction any inappropriate introduction of evidence by disregarding it and awarding costs.

[31] In Anderson v. Hunking,[^11] Master Glustein, as he then was, stated:

9. In a trial, a judge hears all evidence and decides if it is inadmissible, whether as hearsay, improper opinion, or irrelevant, scandalous, or vexatious. There is no preliminary vetting by another court to determine relevance. In a motion or application, evidence is to be by affidavit. There is no distinction in principle supporting the view that on a motion or application, another court should take a preliminary view of the evidence and decide its admissibility (except if there is a rare situation when the very disclosure of the evidence before the court hearing the substantive motion could result in significant prejudice, such as disclosing privileged information or settlement discussions).

10. Courts hearing substantive motions are well capable of determining which statements in an affidavit are hearsay, legal opinion, irrelevant, or inflammatory. Further, it is for the court hearing the substantive motion or application to consider the evidence it seeks to rely upon, and evidence which may be relevant to the trier of fact on the motion or application should not generally be vetted in a preliminary hearing prior to the substantive hearing.

[32] However, in Holder v. Wray,[^12] Justice Emery said that whether the motion to strike is appropriately made before the hearing of the motion is a matter that must be considered on a case-by-case basis.[^13] Thus, there are cases, in which courts on a pre-emptive motion have struck affidavits before the hearing of the motion on the basis that: (a) the deponent failed to state the source of the information;[^14] (b) the deponent raised legal arguments;[^15] or (c) the deponent made allegations that were scandalous, frivolous, or vexatious.[^16] In in Holder v. Wray,[^17] Justice Emery adopted a hybrid approach and struck some offending paragraphs from the affidavits but deferred a decision about other impugned paragraphs to the judge hearing the motion. This hybrid approach was also adopted by Justice Harvison Young, as she then was, in Lockridge v. Ontario (Director, Ministry of the Environment).[^18]

[33] In Allianz Global Risks US Insurance Co. v. Canada (Attorney General),[^19] then Master MacLeod, who, it may be recalled, favoured the approach of discouraging pre-emptive motions to strike stated:

19. In summary, with respect to interlocutory motions for production of documents, a preliminary motion will generally not be the preferable approach. Any issues of admissibility, relevance or weight should generally be dealt with by the judicial officer hearing the main motion. Rule 25.11 may be appropriate to deal with clearly scandalous or improper affidavit material or with abuse of process where it can be demonstrated that it is more efficient to deal with the record in advance than it will be to complicate the hearing of the main motion and leave the parties uncertain as to whether or not they must respond to the improper material.

[34] In Holder v. Wray,[^20] Justice Emery said:

40. An advance ruling on striking all or parts of an affidavit can save the court the time of hearing and deciding evidentiary issues. A motion to strike can screen out evidence that is ultimately extraneous to the real issues between the parties, and that only increase the high cost of litigation. The motion to strike, used judiciously, provides the means by which to weed out frivolous or vexatious evidence that could require reply evidence, and might otherwise widen the scope of any cross-examination that is later found unnecessary. Although there are arguments for and against striking an affidavit in whole or in part prior to the main event, it is a discretionary order to make in the right circumstances. One "special reason" to make such an order in advance of the main hearing would be where the affidavit at issue is "clearly improper and it would inevitably give rise to extraordinary cost or difficulty for the other party." See Allianz Global Risks at paragraphs 18 and 19, and Neighborhoods of Windfields Ltd. Partnership v. Death, 2007 31756.

[35] By way of my own summary, in the majority of cases, rather than a pre-emptive motion to strike affidavits in whole or in part for non-compliance with the Rules of Civil Procedure, it is preferable that the judge or master hearing the substantive motion rule on the admissibility of the evidence. However, there is no absolute rule, and a pre-emptive motion may be appropriate where either efficiency or fairness require that disputes about the factual record be determined before the substantive motion. On a case-by-case basis, it will be for the judge or master hearing the pre-emptive motion to decide whether to strike the impugned material or to defer the issues of admissibility to the judge or master hearing the substantive motion.

2. The Lawyer as Witness

[36] Also relevant to the determination of this motion to strike is Rule 5.2-1 of the Law Society of Ontario's Rules of Professional Conduct. This rule addresses the professional responsibilities when the lawyer or lawyers of a law firm act in the dual role of advocate and witness in a client's proceedings. Rule 5.2-1 imposes constraints on a lawyer or law firm acting in a dual capacity. Rule 5.2-1 states:

Submission of Evidence

5.2-1 A lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless

(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or

(b) the matter is purely formal or uncontroverted.

Commentary

A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer's own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the advocate's right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.

[37] The case law reveals that it is improper for the deponent of an affidavit to act as counsel and rely on his or her affidavit.[^21] An advocate cannot avoid the rule that he or she cannot be a witness and advocate through the device of having someone else swear the affidavit based on information and belief from the lawyer.[^22] It is improper for a lawyer to appear as advocate on a matter where the lawyer is the source of the information concerning an important and contentious matter before the court, even where the lawyer is not the deponent of the affidavit.[^23]

[38] If it is clear from the outset of a proceeding or if it becomes clear during the proceeding that the advocate will be a material witness, he or she should be disqualified and removed as lawyer of record.[^24] The disqualification arises even if counsel does not intend to testify because his or her involvement in the matter based on participation and actual knowledge of the events rather than based on just taking instructions from his client creates a conflict between his or her duty to the court and his or her duty to the client.[^25]

[39] The case law explains that an advocate cannot be a substantive witness in his or her client's litigation because as an advocate, he or she has a duty to the administration of justice to be objective and detached from the client's litigation, which duty could conflict with the advocate's duty to present the client's case in as favorable a light as possible.[^26] In my text, Conflicts of Interest in the Legal Profession,[^27] written before I was a judge, I wrote:

B. THE DUAL ROLE CLASS

The presence of a conflict of interest is clear in the Dual Role Class. When also acting as an advocate, the lawyer who gives evidence puts his or her personal interests and credibility in issue, and his or her professional role and relationship with other counsel and with the adjudicator is changed because they are entitled to comment about the credibility of the advocate as witness and about the weight and significance of the advocate's evidence. The advocates participation as witness comprises his or her role and duties to the court.

In most jurisdictions, both the rules of professional conduct and the case law regard a dual role as a conflict of interest and prescribe against it; if the lawyer is to give evidence, then he or she should withdraw as counsel at the trial or hearing. The prohibition is not absolute because of the possibility of exceptional circumstances. [...]

[40] In Imperial Oil Ltd. v. Grabarchuk,[^28] the Ontario Court of Appeal stated that the rule against a lawyer serving as a witness and advocate was well-known and strictly enforced by courts. Other cases, however, have found that it is extremely undesirable, although not absolutely prohibited, for a lawyer to play a dual role of witness and counsel in a proceeding.[^29]

[41] It is also undesirable that a lawyer or law firm be lawyer of record when a member of the firm will be a substantive witness in a proceeding, and this prospect provides grounds for disqualification of the law firm. However, having regard to the prejudice it may cause to the litigant who retained the lawyer, the approach of the courts is to disqualify a lawyer or law firm only in clear cases when a member of the firm will be a substantive witness, and courts are careful not to make a disqualification order prematurely.[^30]

[42] If there is only a potential that a lawyer from the firm will have substantive evidence and be a witness for the firm's client, then on a motion to have the law firm disqualified, the court considers a number of factors in determining whether to disqualify including: (a) how likely the lawyer will be a witness; (b) the materiality and significance of the lawyer's evidence; (c) the likelihood of a real conflict or that the evidence will be tainted; (d) the stage of the proceedings; (e) the timeliness of the motion; (f) the impact of removal of counsel on his or her client's right to be represented by counsel of choice; and (g) the good faith of the party making the application; (h) the mode of trial, whether judge alone or judge and jury; (i) who will call the lawyer as witness; and (j) the current and past relationship between the lawyer and the parties involved in the litigation.[^31]

[43] In Mapletoft v. Christopher J. Service,[^32] Master MacLeod, as he then was provided the following guidelines for the use of lawyers' affidavits:[^33]

15. For the guidance of counsel in future, I propose the following guidelines:

(a) A partner or associate lawyer or a member of the clerical staff may swear an affidavit identifying productions, answers to undertakings or answers given on discovery. These are simple matters of record, part of the discovery and admissible on a motion pursuant to Rule 39.04. Strictly speaking an affidavit may not be necessary but it may be convenient for the purpose of organizing and identifying the key portions of the evidence. Used in this way, the affidavit would be non-contentious.

(b) If it is necessary to rely on the information or belief of counsel with carriage of the file, it is preferable for counsel to swear the affidavit and have other counsel argue the motion. This approach will not be appropriate for highly contentious issues that may form part of the evidence at trial. If the evidence of counsel becomes necessary for trial on a contentious issue, it may be necessary for the client to retain another law firm.

(c) Unless the evidence of a lawyer is being tendered as expert testimony on the motion, it is not appropriate for an affidavit to contain legal opinions or argument. Those should be reserved for the factum.

3. Analysis

[44] Mr. Gutierrez's primary argument to resist the motion to strike Mr. Tuovi's three argument was that the proper time to consider the affidavits was at the hearing of the joinder and jurisdiction motions. He submitted that this pre-emptive motion to strike should not have be brought.

[45] There was an in terrorem or opening the flood gates edge to this argument with the proposition that dealing with the foreign Defendants' pre-emptive motion in the case at bar would set a precedent that would encourage time-consuming motion activity of the most tedious sort and would offend rule 1.04 (1)'s aspiration that the Rules of Civil Procedure be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceedings on its merits. There was the suggestion that to decide the motion properly, I would have to analyze each and every paragraph of Mr. Tuovi's three affidavits and make rulings much like a judge or master will do on a refusals motion where the relevancy and propriety of questions and answers are determined before the hearing of the interlocutory motion, application, or trial.

[46] I was not persuaded by these arguments. I agree with Justice Emery in Holder v. Wray,[^34] where he said that whether the motion to strike is appropriately made before the hearing of the motion is a matter that must be considered on a case-by-case basis. In the overwhelming majority of cases, the admission of evidence can be effectively and properly addressed at the hearing or trial, and it is not necessary or productive to bring a pre-emptive motion. I would, however, not limit pre-emptive motions to rare and extraordinary cases, whatever that might mean in the context of ruling on the admissibility of evidence. The utility of a pre-emptive interlocutory motion ultimately depends on the exigencies of each particular case.

[47] In the immediate case, I conclude that the preliminary motion was appropriate, and I reject the notion that the foreign Defendants can be faulted for bringing a pre-emptive motion to require Mr. Gutierrez to comply with the Rules of Civil Procedure and to prevent Mr. Gutierrez's counsel from having a disqualifying conflict of interest.

[48] Further, in the immediate case, Mr. Gutierrez's case is a case-managed proceeding under the Class Proceedings Act, 1992. I am seized of the joinder and jurisdiction motions, and there is no reason for me not to decide the matter of the propriety of Mr. Tuovi's affidavits now. And it is both necessary and efficacious to settle the evidence for the joinder motion and for the jurisdiction motion so that the parties can respectively properly deliver factums and prepare for the argument of the motions.

[49] Turning then to how to decide the case at bar, I am persuaded by Watchtower-Pennsylvania and Watchtower-New Yorks' arguments that all three of Mr. Tuovi's affidavits are: (a) non-compliant with the Rules of Civil Procedure; and (b) are non-complaint with the Rules of Professional Conduct and the Rules of Civil Procedure and if not struck, then Mr. McPhadden would be disqualified from arguing the motions.

[50] As for non-compliance with the Rules of Civil Procedure, affidavits, and for that matter pleadings, notices of motion, notices of application, are not the place for a party or his or her lawyer to make written arguments. Pursuant to rule 37.10 (6), the place for a written "concise argument" is the factum.

[51] The rule that argument is for the factums and not for the affidavits has been egregiously dishonoured in the case at bar. The following seventeen paragraphs of Mr. Tuovi's first affidavit are arguments or personal opinions of a lawyer for a party: 8, 9, 12, 13, 14, 18, 19, 20, 22, 24, 29, 30, 31, 32, 33, 35, and 41. The following sixty-eight paragraphs of Mr. Tuovi's second affidavit are arguments or personal opinions of a lawyer for a party: 4, 6, 12, 13, 16, 17, 20, 21, 22, 23, 24, 25, 28, 30, 31, 32, 33, 35, 37, 38, 39, 41, 44, 45, 46, 47, 48, 52, 53, 56, 57, 62, 63, 64, 66, 67, 69, 71, 73, 74, 76, 77, 78, 79, 81, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 106, 107, 109, 110, and 113. The following six paragraphs of Mr. Tuovi's third affidavit are arguments or personal opinions of a lawyer for a party: 9, 10, 11, 12, 13, and 14.

[52] Some of these ninety-one paragraphs of argument would not even be appropriate argument for a factum because they express personal opinions of counsel and should they reappear I will have to deal with them at the hearing of the motions. For present purposes, the prevalence of the non-compliance is so overwhelming and there is also the problem of the misuse of a lawyer's affidavit that Mr. Tuovi's three affidavits should be struck out in their entirety.

[53] In coming to this decision, I was concerned, however, that there were portions of Mr. Tuovi's affidavit that should be saved because there could have been proper ways to proffer the evidence without offending rule 25.11 or the rules about lawyer's affidavits.

[54] By way of illustration, I have frequently encountered affidavits where a lawyer or a para-legal will depose without editorial comment or argument as follows:

I, AA, of the City of Toronto, in the Province of Ontario,

MAKE OATH AND SAY:

1. I am a Legal Assistant/Clerk with the law firm BCD LLP, counsel for the plaintiffs in this action, as such I have knowledge of the matters to which I depose.

2. I have also been provided with information by BB and CC, the lawyers with primary carriage of this file, which I believe to be true. I make this affidavit solely to provide evidence in relation to the [...] motion in this class proceeding.

3. Attached at Exhibit "1" is a copy of the Statement of Claim.

4. Attached as Exhibit "2" is a copy of the Order of Justice [...] dated [...] along with his/her Reasons for Decision, which are attached as Exhibit "3."

5. Attached as Exhibit "4" is a letter dated [...] written by [...] to

6 Attached as Exhibit "5" is a report dated [...] authored by ...

[...] etc.

A similar approach could have been used in the case at bar with respect to the documents that are appended as exhibits to Mr. Tuovi's three affidavits and the admissibility of those documents could have quite appropriately been determined at the hearing of the motion.

[55] As it happens, I am advised that some but not all of the affidavits were used on the cross-examinations of the foreign Defendants' affiants and thus these documents may be before the court in any event.

[56] In these circumstances, in my opinion, the fair and appropriate approach is to strike the three Tuovi affidavits but grant Mr. Gutierrez leave to deliver an Affidavit of Documents from Mr. Tuovi for the purposes of the joinder and jurisdiction motions. The affidavit may contain only documents that: (a) were exhibits to his three affidavits; and (b) are relevant to the joinder motion or the jurisdiction motion.

[57] There is a separate reason for striking Mr. Tuovi's third affidavit. Mr. Gutierrez cross-examined on the affidavits delivered by the foreign Defendants, and under rule 39.02 (2), he was prohibited from delivering Mr. Tuovi's third affidavit without leave or consent. Mr. Gutierrez did not obtain consent or obtain leave to deliver the third affidavit. I am, therefore, striking out the third affidavit for contravening rule 39.02 (2), but, for the above reasons, on terms that Mr. Tuovi may deliver an Affidavit of Documents confined to documents that: (a) were exhibits to his three affidavits; and (b) are relevant to the joinder motion or the jurisdiction motion.

[58] Technically speaking, the above conclusions are dispositive of the preliminary motion brought by Watchtower-Pennsylvania and Watchtower-New York, but this is a teaching moment and the proper use of lawyer's affidavits is an important matter for the administration of justice.

[59] As I have already indicated, I agree with Watchtower-Pennsylvania, and Watchtower-New York that had Mr. Tuovi's affidavit not been struck then Mr. McPhadden and any other lawyer from McPhadden, Samac, Tuovi LLP would have a disqualifying conflict of interest and could not argue the motions.

[60] In this regard, it should be appreciated that with the exception of the few paragraphs of hearsay information sourced from Mesdames White and Hall all of Mr. Tuovi's testimony is based on information sourced from Mr. McPhadden, who is the lawyer who will be arguing the joinder and jurisdiction motions. The case at bar is not a case where an advocate on an interlocutory motion presents non-controversial evidence from his or her associates or partners; rather, Mr. McPhadden, through the mouthpiece of Mr. Tuovi, would be presenting his own controversial evidence and improper argument at the hearing of the interlocutory motion. The result is that there is the conflict of interest of Mr. McFadden being both an advocate and a witness on an interlocutory motion.

[61] There is a subtle point to be noted here. The problem is not so much that Mr. McFadden is the source of Mr. Tuovi's information and belief; rather, the problem is the manner in which Mr. Tuovi deposes. Although portions of his deposition might have admissible, the manner in which he presented the evidence was unacceptable and not admissible.

[62] Because of the manner of presentation of the evidence, Mr. Tuovi did not proffer purely formal or uncontroverted evidence, although in some instances, he might or could have. For example, typically, on an interlocutory motion, it is not controversial to proffer evidence that a letter was sent and to attach the letter as an exhibit. The content of the letter may or may not be hearsay depending on the purpose for which the letter was introduced as evidence. The relevant and admissible evidence may simply be that a letter was sent independent of the truth of the factual assertions, if any, made in the letter.

[63] Similarly, if the deponent lawyer himself or herself is the investigator or researcher that finds a document, say on the internet, as was the case with many documents in Mr. Tuovi's affidavits, it may be incontrovertible that that's where the document may be found. With the source of the document identified, then an exception to the hearsay rule might be triggered, including the overarching hearsay exception based on reliability and necessity.

[64] In the case at bar, however, Mr. Tuovi did not do his own research, but he rather relied on information from Mr. McFadden, which just doubles down on the hearsay problems. But even putting those problems aside, the major point is that however one analyses the proffering of the three Tuovi affidavits, the affidavits offend the rules about the use of lawyer's affidavits on an interlocutory motion. The manner of presentation in the immediate case has Mr. McFadden as both advocate and affiant. Unless the Tuovi affidavits are struck, there is a disqualifying conflict of interest.

[65] With the affidavits struck and with Mr. Tuovi delivering an unadorned Affidavit of Documents, Mr. McFadden is not disqualified and may argue the motions in August.

D. Conclusion

[66] For the above reasons, Mr. Tuovi's three affidavits are struck with leave to deliver an Affidavit of Documents from Mr. Tuovi confined to documents that: (a) were exhibits to his three affidavits; and (b) are relevant to the joinder motion or the jurisdiction motion.

[67] My inclination is to order the costs of this motion to Watchtower-Pennsylvania, and Watchtower-New York because of the non-compliance with the Rules of Civil Procedure and the non-compliance with the case law about lawyer's affidavits. I, however, leave it to the parties to address the matter of costs. If they are unable to do so, then Watchtower-Pennsylvania, and Watchtower-New York may make costs submissions within twenty days of the release of these Reasons for Decision followed by Mr. Gutierrez's submissions within a further twenty days.

Perell, J.

Released: May 21, 2019

COURT FILE NO.: CV-17-583406-00CP DATE: 2019/05/21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTIAN EDUARDO GUTIERREZ Plaintiff

• and -

THE WATCHTOWER BIBLE AND TRACT SOCIETY OF CANADA, WATCH TOWER BIBLE AND TRACT SOCIETY OF PENNSYLVANIA, and WATCH TOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC. Defendants

REASONS FOR DECISION

PERELL J.

Released: May 21, 2019

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