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

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

[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.”