Gajic v. M.N.R.
T-673-98
Hargrave P.
19/5/98
11 pp.
Action involving claim for tax, penalties, interest assessed on improper basis, paid in error-Federal Crown did correct thing through refund authorized by Order in Council, ought not be party herein-Provincial Crown unjustly enriched by reason of plaintiff's payments, has refused to make refund-In triumph of law over justice, plaintiff having no claim at law, no remedy against provincial Crown-Action struck out-Provincial Crown denying fairness, justice by refusing to review plaintiff's case-Plaintiff could not succeed against federal Crown as having no reasonable cause of action-As preliminary matter, counsel for province of British Columbia sought to speak to own affidavit-Practice to be discouraged and, except in special circumstance, to be barred as totally improper-Solicitor not competent to conduct litigation in which he is witness-Improper, unacceptable for solicitor to take affidavit even in interlocutory matter where he attests to matters of substance and might expose himself to being cross-examined on matters covered by solicitor and client privilege-To require counsel to comment upon evidence given by another counsel engaged as such in same action not in interests of legal profession-Situation leading to complete impropriety as Bench would be called upon to discuss with counsel weight to be attached to evidence-Counsel, in swearing affidavit on behalf of client, should be circumspect about needlessly lending good name, reputation to someone who has no sense of justice or honor, for it reflects not only on counsel but in the eyes of honest lay litigant and perhaps of public generally, and lowers esteem in which they hold legal profession-No remedy for plaintiff even though provincial Crown unjustly enriched.