Representative Giving Evidence (LTB)

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Date Retrieved:	2025-08-03
CLNP Page ID:	2516
Page Categories:	[Hearing Process (LTB)]
Citation:	Representative Giving Evidence (LTB), CLNP 2516, <https://rvt.link/g1>, retrieved on 2025-08-03
Editor:	Sharvey
Last Updated:	2025/07/28

Landlord and Tenant Board Rules of Procedure

1.6 In order to provide the most expeditious and fair determination of the questions arising in any proceeding the LTB may:

...

(q) exercise its discretion to permit a party's legal representative to give evidence where appropriate;

Karas et al. v. Her Majesty the Queen et al., 2011 ONSC 5181 (CanLII)

[26] The overarching test to be applied on a motion to remove a lawyer from the record is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the lawyer. This determination is very fact specific and based on an examination of all of the factors in the case and the specific reason why the motion is being brought. The task of the court is to uphold and preserve the integrity of the justice system while ensuring that litigants are not deprived of their counsel of choice without good cause (see Gaeten Chip Stand Inc. v. Twp. Of North Glengarry, 2005 CanLII 39884 (SCJ) at para 8 citing Everingham v. Ontario (1992), 1992 CanLII 7681 (ON SC), 8 O.R. (3d) 121 (Div.Ct) at p. 127 and see Macdonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at paras 16, 47-51 and 65-66).

[27] While there is no rule of law prohibiting counsel from appearing as a witness, the courts have consistently indicated that such is extremely undesirable. The difficulties that result from counsel representing a party and appearing as a witness in the same matter are well established. In Urquhart v. Allen Estate, [1999] O.J. No. 4816 (SCJ), Justice Gillese stated as follows at paras 27 -28:

“When counsel appears as a witness on a contentious matter, it causes two problems. First, it may result in a conflict of interest between counsel and his client. That conflict may be waived by the client as indeed, was done in this case. The second problem relates to the administration of justice. The dual roles serve to create a conflict between counsel’s obligations of objectivity and detachment, which are owed to the court, and his obligations to his client to present evidence in as favourable a light as possible. This is a conflict that cannot be waived by the client as the conflict is between counsel and the court/justice system.

Counsel are independent officers of the court. The trial judge must be able to rely upon plaintiff’s counsel for a high degree of objectivity. The overriding value, in these circumstances, is concern for the proper administration of justice. A distinction must be drawn between the role of counsel as an independent officer of the court and the role of a witness whose objectivity and credibility are subject to challenge. The dual roles that [counsel] intends to fulfill compromises the integrity of the system. As I can see no way to alter the process that respects the rights of both parties, fulfills the needs for due process and maintains regard for the dictates of the proper administration of justice, in these circumstances plaintiffs’ counsel cannot be permitted to continue. I note that even if I were to exercise my discretion and permit him to continue, procedural problems may very well arise. If they did so, it is likely that it would require me to abort the trial at that time. Such a course of events would result in more prejudice to the plaintiff than does dealing with the issue now.”

[28] The Law Society of Upper Canada’s Rules of Professional Conduct address the issue of lawyer as witness and specifically prohibit counsel, subject to any contrary provisions of law or the discretion of the tribunal before which the lawyer is appearing from acting as both advocate and witness. A lawyer who is a witness in proceedings is not permitted to appear as advocate in any appeal from a decision in those proceedings. Rule 4.02(2) of the Rules of Professional Conduct provides as follows:

“Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted.”

The commentary to Rule 4.02(2) sets out some of the dangers where a lawyer who is a witness also appears as advocate:

“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.”

[29] While the Rules of Professional Conduct are not binding on a court, the Rules are persuasive as an important statement of public policy (see Urquhart v. Allen Estate, [1999] O.J. No. 4816 (SCJ) at para 16 and Macdonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at paras 16, 18 and 49).

[30] When considering the removal of a lawyer from the record on the basis that the lawyer will also be a witness, the court adopts a flexible approach and considers each case on its merits. The Divisional court in Essa (Township) v. Guergis; Membery v. Hill, 1993 CanLII 8756 (ON SCDC), [1993] O.J. No. 2581 (Div.Ct.) at para 48, set out a number of factors which should be considered on a motion to remove a lawyer on the ground that the lawyer will be a witness at trial. The factors include:

“-the stage of the proceedings;

-the likelihood that the witness will be called;

-the good faith (or otherwise) of the party making the application;

-the significance of the evidence to be led;

-the impact of removal counsel on the party’s right to be represented by counsel of choice;

-whether the trial is by judge or jury;

-the likelihood of a real conflict arising or that the evidence will be “tainted”;

-who will call the witness if, for example, there is a probability that counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising;

-the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.”

...

[54] It is also out of concern for the proper administration of justice that courts have removed counsel where counsel’s other interests interfere or appear to interfere with their duty to their clients and to the court. Lawyers have been removed where they have non-pecuniary interests. For example, where there is an intimate personal relationship, which is not the case here, lawyers have been removed from the record on the assumption that the lawyer cannot conduct the litigation with the necessary emotional detachment (see McWaters v. Coke, 2005 ONCJ 73 (CanLII), [2005] O.J. No. 996 (OCJ) at para 201 and Chouinard v. Chouinard, 2007 CanLII 36076 (ON SC), [2007] O.J. No. 3279 (SCJ) at paras 21-27).

MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235

In Canada, some courts have applied Rakusen but the trend is to apply a stricter test which reflects the concern for the appearance of justice. P. W. Kryworuk, op. cit., points out that Canadian courts are largely applying the stricter American test or are applying a stricter version of Rakusen "in light of current attitude towards `conflict of interest, justice and the appearance of justice and even the concept of "fairness"'".

A few statements from recent cases will serve to illustrate the judicial mood in Canada. In Steed & Evans Ltd. v. MacTavish (1976), 1976 CanLII 640 (ON SC), 12 O.R. (2d) 236, Goodman J. stated, at pp. 237-38:

The applicant in proceedings of this kind must come to Court with clean hands and justice must not only be done but it must be seen to be done.

In my view it would be almost impossible for them to cleanse from their minds any information which they may have received while acting on behalf of any of the defendants in the past relating in any way to the subject-matter of these proceedings. It is true that there has been no allegation or submission made by counsel for the defendants herein indicating any specific use or misuse of information obtained confidentially by reason of a solicitor-and-client relationship, but the fact remains that the possibility of that occurring is very real.

...

The Appropriate Test

What then should be the correct approach? Is the "probability of mischief" standard sufficiently high to satisfy the public requirement that there be an appearance of justice? In my opinion, it is not. This is borne out by the judicial statements to which I have referred and to the desire of the legal profession for strict rules of professional conduct as its adoption of the Canadian Code of Professional Conduct demonstrates. The probability of mischief test is very much the same as the standard of proof in a civil case. We act on probabilities. This is the basis of Rakusen. I am, however, driven to the conclusion that the public, and indeed lawyers and judges, have found that standard wanting. In dealing with the question of the use of confidential information we are dealing with a matter that is usually not susceptible of proof. As pointed out by Fletcher Moulton L.J. in Rakusen, "that is a thing which you cannot prove" (p. 841). I would add "or disprove". If it were otherwise, then no doubt the public would be satisfied upon proof that no prejudice would be occasioned. Since, however, it is not susceptible of proof, the test must be such that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest? In this regard, it must be stressed that this conclusion is predicated on the fact that the client does not consent to but is objecting to the retainer which gives rise to the alleged conflict.

Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?

In answering the first question, the court is confronted with a dilemma. In order to explore the matter in depth may require the very confidential information for which protection is sought to be revealed. This would have the effect of defeating the whole purpose of the application. American courts have solved this dilemma by means of the "substantial relationship" test. Once a "substantial relationship" is shown, there is an irrebuttable presumption that confidential information was imparted to the lawyer. In my opinion, this test is too rigid. There may be cases in which it is established beyond any reasonable doubt that no confidential information relevant to the current matter was disclosed. One example is where the applicant client admits on cross-examination that this is the case. This would not avail in the face of an irrebuttable presumption. In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge. Not only must the court's degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden.

The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be a danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at a disadvantage. Questions put in cross-examination about personal matters, for example, would create the uneasy feeling that they had their genesis in the previous relationship.