T-3600-76
Lex Tex Canada Limited (Plaintiff)
v.
Duratex Inc. (Defendant)
Trial Division, Addy J.—Montreal, May 28;
Ottawa, May 31, 1979.
Practice — Motion to strike out — Solicitor for defence
filed affidavit dealing with substantive matters relating to part
of motion in support of that part of the motion — Solicitor for
defence refused to answer questions put on cross-examination
by solicitor for plaintiff on ground of solicitor-and-client
privilege — All evidence of witness refusing to answer on
ground of solicitor-and-client privilege rejected — As this is
the only evidence tendered, the motion must fail — Federal
Court Rule 419.
APPLICATION.
COUNSEL:
G. A. Macklin for plaintiff.
R. Uditsky for defendant.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiff.
Greenblatt, Godinsky & Uditsky, Montreal,
for defendant.
The following are the reasons for order ren
dered in English by
ADDY J.: The present motion by the defendant
under Rule 419 is to strike out certain paragraphs
of the plaintiffs statement of claim. It is founded
in part on Rule 419(1)(a), that is, on the allega
tion that the statement of claim does not disclose a
cause of action. In considering this allegation the
Court is, of course, limited to considering the
statement of claim itself and no evidence can be
heard in support of the motion. For reasons which
I gave orally at the hearing, I held that the defend
ant could not succeed on the basis of Rule
419(1)(a).
The difficulty arises out of the remaining
grounds which are founded on subparagraphs (b)
to (f) inclusive of Rule 419(1), in support of which
evidence can be heard. An affidavit of the solicitor
for the defendant was filed in support of this part
of the motion. The affidavit is not limited to
merely identifying certain documents or corre
spondence but deals with substantive matters on
which this part of the motion is founded. The
affidavit contains the following statements:
3. ... the Defendant has an interest in not revealing to the
Plaintiff and thereby making public information with respect to
the sources of any of its raw materials;
4. ... the Defendant is seriously hampered in the preparation
of a Statement of Defence in this cause and thus suffers grave
and serious prejudice in the circumstances.
Counsel for the plaintiff cross-examined the
solicitor for the defendant on this affidavit and the
latter repeatedly refused to answer many of the
questions put to him on the grounds of solicitor-
and-client privilege.
The right of the party to fully cross-examine a
witness called by the opposite party on all matters
relevant to his testimony and to have those ques
tions answered, is one of the most fundamental
principles of our system of justice. An equally
fundamental right which, if anything, has been
even more jealously guarded by our Courts is that
enjoyed by every person to complete protection
against the divulging of any communication with
his solicitor pertaining to any legal cause or
matter.
The present case illustrates clearly and dramati
cally the impropriety of having the solicitor of any
party to a legal proceeding take an affidavit or
testify orally on behalf of his client regarding any
cause or issue as to which he has been consulted.
The rule has long been recognized by common law
courts, but of late seems to have fallen into disuse
to some extent, in interlocutory matters in any
event, largely because it is so much more conven
ient for the solicitor to take such affidavits.
Whatever might be the motive for doing so, it is
completely improper and unacceptable for a solici
tor to take an affidavit even in an interlocutory
matter where he attests to matters of substance
and might therefore expose himself to being cross-
examined on matters covered by solicitor-and-cli
ent privilege. In the case at bar, counsel for the
defendant quite candidly stated that it was precise
ly in order to avoid answering questions on certain
aspects of the case as to which any other repre
sentative of the defendant might be cross-exam
ined, that a decision was made to have the affida
vit taken by the solicitor. This, of course, brings
into focus all the more clearly the fundamental
injustice which might result from the practice.
Where, as in the present case, there is a refusal
on the part of the solicitor to answer on the
grounds of solicitor-and-client privilege resulting
in a denial of the other party's right to full and
complete cross-examination on all matters raised
in the affidavit, the Court has no alternative but to
reject all of the evidence of that witness. In the
case at bar this involves the solicitor's affidavit and
its exhibits. Since this is the only evidence ten
dered, the motion must necessarily fail.
During argument counsel for the defendant,
although stating that his client was not waiving his
solicitor-and-client privilege, invited the Court to
order the solicitor to answer certain questions
which he had refused to answer on those grounds
and the answers to which the Court might feel
would be relevant to determining the issue of the
propriety of the pleadings objected to. Any such
order, in my view, would not only be completely
improper but would be illegal and unenforceable
since the privilege is absolute and is worthy, in my
view, of the same degree of protection as the
independence of the judiciary itself, since it is
equally as fundamental to our system of justice.
Since the subject-matter of the motion appears
to be quite important and since the disposition of it
will not only determine the nature and the length
of future proceedings in the action but might also
greatly affect certain fundamental rights of the
parties, the motion is being dismissed without
prejudice to the right of the defendant to renew it
or to launch any other or further motion concern
ing the statement of claim providing he serves any
such new notice of motion on the plaintiff within
three weeks from the date of the order issued in
conformity with these reasons.
Having regard to the counter-motion of the
plaintiff requesting that a defence be filed forth
with in this matter, should the defendant fail to
serve a new notice of motion within the time above
limited, it will be obliged to serve and file its
statement of defence within ten days thereafter.
Any notice of motion of the defendant served
within three weeks as aforesaid may be made
returnable after long vacation.
Costs shall be to the plaintiff in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.