CHAMBERS SECRETS
PAPER 5.5
Chambers Practise: One Master’s Views
These materials were prepared by Master Douglas Baker, Supreme Court of BC, Vancouver, BC, for the
Continuing Legal Education Society of British Columbia, February 2009.
© Master Douglas Baker
5.5.1
CHAMBERS PRACTISE: ONE MASTER’S VIEWS1
I.
Preliminary Topics ............................................................................................................... 2
A. Dress ..................................................................................................................................... 2
B. Cell Phones ........................................................................................................................... 2
C. Punctuality............................................................................................................................ 2
II.
The Hearing ......................................................................................................................... 3
A. Arrival................................................................................................................................... 3
B. Time Estimate....................................................................................................................... 3
C. The Clerk.............................................................................................................................. 3
D. Standing ................................................................................................................................ 3
E. Jurisdiction............................................................................................................................ 4
F. Client Present? ...................................................................................................................... 4
G. Introduction and Delivery (“Stand and Deliver”) ................................................................. 4
H. Adjournments ....................................................................................................................... 5
I. Preliminary Objections......................................................................................................... 5
J. Chambers Briefs.................................................................................................................... 6
K. Materials in General.............................................................................................................. 6
L. Cases and Authorities ........................................................................................................... 6
M. Submissions........................................................................................................................... 6
N. Sit Down ............................................................................................................................... 7
O. Objections............................................................................................................................. 7
P. Reply..................................................................................................................................... 7
Q. Sur-Reply .............................................................................................................................. 7
R. Listening ............................................................................................................................... 7
S. Costs ..................................................................................................................................... 8
T. Decision or Reasons.............................................................................................................. 8
U. Settling an Order................................................................................................................... 8
III.
Appendix A⎯Afffidavits ..................................................................................................... 9
IV.
Appendix B⎯Excerpts from the Judgment of Spencer J. in Creber v. Franklin
(1993) B.C.J. No. 890 Van. Registry No. D083222 ............................................................. 11
1
The views and opinions in this paper are those of the author; other Registrars, masters or judges may
disagree (but most probably agree).
5.5.2
I.
A.
Preliminary Topics
Dress
The appropriate standard for dress in court was long ago set by Southin J.A. As bencher, Treasurer of
the Law Society (as the position was previously known), trial and appellate judge she insisted on
“black shoes and starched linen.” She once adjourned a case in which I was appearing so that other
counsel (appearing with an unbuttoned collar) could go to the barristers’ room and “…return dressed
as a gentleman.”
It is common to make light of such expectations, but in my view Southin J.A. was absolutely correct
in her expectations. Courts are special places and advocacy on behalf of a client is a special calling.
Both demand appearance and decorum of the highest order. I personally always (with one possible
exception) appeared in court, be it Provincial or Supreme (including Registrars’ hearings) in white
shirt and black shoes. The exception (and my memory may be failing me) was an unexpected call one
afternoon to appear in Provincial Court in Burnaby.
There are few, if any, duties or responsibilities for lawyers higher than representing a client in court.
The reason for appearing in court does not matter; whether it concerns fixing a date, adjourning,
arguing a chambers matter, or conducting a trial, respect for the process, the client’s trust, and the
institution require white shirts and black shoes. And I am not blind to gender: female counsel need
not dig out white blouses and “sensible” black shoes. They need only to recognize the obligation and
dress accordingly. Shirt collars should, without exception, be fastened and ties “done up.”
I do not carry my expectations further and (as in the oft-repeated and apocryphal story) advise counsel
that I “…cannot hear them” unless properly dressed. I will not address counsel in open court on the
topic of dress unless I think the standard has been egregiously broken or flaunted. If counsel are
caught short in their office and have to literally run to court, we understand. They must explain the
reason for their casual attire and either obtain the court’s indulgence, or stand the matter down until
they can return. It’s actually not a bad idea to keep a spare shirt, jacket, and tie (or the female
equivalent) in your office for just such occasions.
B.
Cell Phones
Turn the things, together with their satanic cousins the Blackberry, Palm Pilot, and pager, OFF. I can
guarantee you nothing irritates and distracts me more than the ringing of a cell phone in court. If it
happens while you are giving argument or submissions, you should be just as angry, as it means the
court is instantly distracted from your point and its concentration disrupted. Similarly, if you intend
to use a laptop, either turn it on before court or turn off the sound features that announce Windows.
It is just as distracting as a cell phone.
C.
Punctuality
Counsel are, in my view, good at being on time. Plan to arrive at chambers at least 15 minutes before
chambers are called (i.e., be there by 9:30 a.m.). That is the minimum allowable time for connecting
with opposing counsel, greeting others, and getting settled in. Chambers day is always a social day for
counsel, and that’s a good thing. But greetings, chat, and gossip should occur outside the courtroom,
and preferably before chambers or during breaks.
If you expect to be unavoidably late, do two things: first, advise your friend (or any other counsel who
will be in court) of your absence and ask that they, in turn, advise the court. Second (and on any
occasion when you are either late or absent when your matter is called), begin with a quick apology to
the court. Unless asked, do not give lengthy reasons⎯just say you’re sorry.
5.5.3
II.
A.
The Hearing
Arrival
If you do not know opposing counsel, do not know the other party (if self-represented), or are unsure
if anyone is appearing, before court begins always ask (loudly) something like “…is anyone appearing
on Bank of Montreal v. Liebowitz,” or “…is anyone appearing for Liebowitz?”. You may feel a bit
uncomfortable loudly announcing your presence, but you are doing the court a big favour.
Check in with the clerk. This is required and essential if your matter is opposed. Even if it is not
opposed, but is perhaps unusually technical or time-consuming, advise the clerk of that and suggest
you be put to the end of the uncontested matters. Again, not only the court but your fellow
practitioners as well will appreciate that.
Briefly refresh your position with opposing counsel. It may well be that your position has modified,
or that fewer points are in issue. You owe it to your friend and to the court to establish that before
chambers, so that time is not wasted.
B.
Time Estimate
If your matter is opposed discuss times with your friend. Ask how long he or she expects to take,
think honestly of your own required time (allowing for reply as well, of course) and add about five
minutes for the court’s questions or decision. Then advise the clerk of your time estimate.
C.
The Clerk
Bear in mind that organizing the chambers list is a complicated, demanding, and stressful responsibility
for the chambers clerk. She may not have “done chambers” for some time, and may require your
patience. If you need to talk to her once chambers has commenced, PASS HER A NOTE. Do not
attempt to talk directly to her. The note should be short and to the point, and should say something
like “No. 12 – Bank of Montreal and Liebowitz – we have a consent – need 5 minutes.” Always
remember that keeping the chambers clerk on your side is a very good idea, and in your client’s
interests. Rude, abrupt, or dismissive conduct toward court clerks is simply bad advocacy.
D.
Standing
It is rarely a problem, but give some thought to your standing. Almost always you have standing to
appear on your client’s matters in court, but there are exceptions. In some matters (including, for
example, multiple defendants or third parties) your client’s interests may be only marginally or
distantly affected. There is, of course, absolutely nothing wrong with appearing with a watching brief
on the application. If so, it’s a good idea to advise the court immediately of the reason for your
attendance (“we’re just here to watch, Your Honour”).
One exception to this is an application under Rule 28 for the examination of a non-party witness. The
other party to the litigation does not have standing to appear on the application2 and I, for one, will
quickly point that out to counsel.
2
Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1973), 3 B.C.L.R. 1 at 2.
5.5.4
E.
Jurisdiction
Masters, being judicial snow plows for Justices, like to hear whatever they can, but, alas, must admit to
the occasional limit to their jurisdiction. It is a good thing, occasionally, to review the Practise
Directives issued from time to time by the Chief Justice; they are conveniently contained in the
various guides to the Rules of Court (e.g., “The White Book” by Bouck, Turriff, and Dillon). Masters,
as examples, cannot decide matters that call for the inherent jurisdiction of the court, contempt
matters, committal of any party, appeals from the registrar, final orders in foreclosure matters if
opposed, and injunctions (except those permitted in family law matters by the Family Relations Act.
Finally, masters cannot vary “final orders” such as those given respecting custody, access, or support in
final divorce orders. You need a judge to consider those issues.
On the other hand, a master can hear and decide applications to vary a judge’s order if the judge’s
order is interlocutory. The much misunderstood key is not that the judge made the order; it is the
interlocutory (vs. final) nature of the order itself.
F.
Client Present?
There is a variety of opinion on the advisability of having your client present during the application.
Generally, I think it’s a good idea, especially in family matters. First and most obvious, you then have
instant access to instructions, which is essential if negotiations take place. NOTE: you as counsel need
not consult a client for routine adjournments. You can agree to a short adjournment without
instructions, and explain it to the client later. At the very least, if negotiations are a possibility, you
should have quick telephone access to your client.
Second, it is often a good thing for the client to see you at work. He or she will understand how your
time is often consumed in waiting in the queue, negotiating, or reviewing the materials. Finally, it is
usually good for the client to observe first hand your discussions with the court. It may well help you
to explain an unhappy result to the client if he or she has been present and heard the court’s
comments. Of course, it is always a good idea to advise the court of your client’s presence. The court
may temper some of its comments accordingly, or perhaps even address (with your permission)
comments directly to the client.
Sometimes a client has a disability; deafness is a common concern. If your client is hard of hearing,
advise the court so that its comments can be loudly made. You may want to ask the court’s
permission for the client to sit at counsel table. BUT NOTE: in the Supreme Court clients remain in
the body of the courtroom, and do not cross the bar into the well of the court without the court’s
permission.
Of course, watching you work may give the client the wrong impression. To some, all you are doing
is “talking,” and everyone can talk. Good lawyers, well prepared, like good athletes or artists, often
give the impression that it’s easy, and anyone can do it.
G.
Introduction and Delivery (“Stand and Deliver”)
Always introduce yourself to the court, no matter how frequently you appear. If you have several
matters that day, strictly speaking you need to introduce yourself only the first time. Be sure the clerk
is getting it, and it never hurts to spell your last name. Some counsel seem to feel the only acceptable
way to introduce yourself is “Smith, your Honour, initials J.P.” There is nothing wrong with
introducing yourself as “Jane Smith, your Honour”, or “If it please the court, Jane Smith.”
Speak loudly. There was a time, not too long ago, when a significant portion of the bench (invariably
aging white males) was literally hard of hearing. Judges are younger now, and technology in the
courtrooms better, but you should still raise your voice above your normal speaking or conversational
volume. A good tip: speak to the bench as if the judge were sitting 10 feet farther back. Even in
5.5.5
modern courtrooms the hum of computers, fans, and background whispering of other people in the
room can contribute to a noisy environment. What you have to tell the court is important⎯ensure
that the court hears and records it, by speaking clearly and loudly. But don’t shout.
Introduce your motion properly. Do not just leap into, for example, the contents of the affidavits.
Master Donaldson routinely tells counsel: “tell me what you want, tell me the authority for it, and tell
me why you should get it.” I haven’t encountered a better or more succinct guide to chambers
advocacy. Tell the court “this is an application for _____ in matrimonial (or motor vehicle accident
etc.) proceedings.” If your motion has several paragraphs of relief, carefully and specifically advise the
court exactly which paragraphs are before the court that day.
If you have consents, advise the court at the outset and carefully “dictate” those terms to the judge or
master. Remember that all consents are still court orders, and “subject to your Honour’s approval.”
NOTE: if you have worked a consent out before court or in the hall, unless it is a very simple and
brief one, write it down and review the written note with your friend. It is frustrating to have one
counsel advise the court of a consent, only to have the other lawyer begin to qualify or contradict the
terms. Be clear from the outset, and write the terms down.
DO NOT ask the court if it has “read the materials.” While that might seem a reasonable and
considerate question from counsel’s perspective, many judges and masters dislike the question. It is
very much like asking “did you do your homework?” Just begin your submissions. If the master has
read the materials he or she will probably tell you that (often, unfortunately, interrupting your
submissions in the process).
H.
Adjournments
If you seek an adjournment, tell your friend before chambers. Agree on a reasonable time for the
application, and advise the clerk before chambers. The usual advice to the clerk is something like “ten
minutes on the adjournment and, if it’s refused, 45 minutes for the application itself”.
I.
Preliminary Objections
If you have a preliminary objection, again, tell your friend before chambers. Objections may relate to
late affidavits (or procedure in general), contents of affidavits, or jurisdiction. If it’s a jurisdiction
question, he or she may agree, and have the file transferred to Judge’s chambers. With late affidavits,
examine your own thinking and be clear; are you seeking to exclude the affidavit (rarely done by the
courts), or are you just venting your frustration to the court? Challenging the contents of an affidavit
is a whole topic to itself. Many judges or masters, I think, consider the arguments to be tedious and
possibly trifling. I do not. I respect counsel who have carefully reviewed opposing affidavits and who
have considered the admissibility of their contents. I do not recommend a voire dire on every affidavit,
but badly drawn materials should be challenged. Typically the only evidence the court has in
chambers is in the affidavits, and counsel should be fully conversent with Rule 51 (“Affidavits”),
particularly Rule 51(10) (“Contents of Affidavits”). If you are going to challenge portions of the
affidavits, it is extremely helpful to have an extra copy of the affidavit, with the challenged portions
either highlighted or underlined, for the court to annotate. Second, consider the time your challenge
will take; consideration of admissibility usually takes at least 30 and sometimes 60 minutes. That time
must be added to the time for the application at large. There are many cases that discuss affidavit
contents, but a quick, emphatic, and, frankly, searing comment on the quality of affidavits can be
found in Spencer J.’s reasons in Creber v. Franklin.3 I have included Spencer J.’s comments on the
affidavit materials in Appendix B.
3
(1993) B.C.J. No 890.
5.5.6
J.
Chambers Briefs
A relatively recent innovation, chambers briefs can be very helpful aids, particularly with longer or
more complex applications (they are, of course, mandatory for applications over 30 minutes4). The
help is not only to the sitting judge or master, but to you as well, as nothing will focus your approach
and delivery like the discipline required to sit down and put your case down on paper. Do not hand
up your brief and then read from it. That’s not advocacy. Use the brief as a guide and read from it
now and then when a quote from the evidence or legal authorities is needed. The brief is an excellent
aide memoire to the judge or master if the decision is reserved, and ensures that your perspective and
argument will be easily available to the judge or master at a later date. You can find a few examples of
chambers briefs in CLE materials on chambers or civil litigation in the courthouse library.
K.
Materials in General
The form and content of the motion is, of course, strictly defined by Rule 44(3) and Form 55. The
heads of relief in the motion must be numbered separately. You must state in the motion the legal
authority for the relief sought. It is not sufficient to simply invoke “the inherent jurisdiction of the
court,” or “The Family Relations Act.” Case authority requires that your motion direct the other side
to that particular Rule of Court or statutory basis for your relief.
Affidavits also have their own requirements, and there is ample judicial comment on this (see
Preliminary Objections, above). Refer to Appendix A for more specific directions and advice
regarding affidavits and their use.
L.
Cases and Authorities
If you have just one or two cases, just hand copies up to the clerk. If you have more than, say, three, it
is a good idea to bind them somehow and stick an index on the package. In the past couple of years
counsel have begun to highlight those portions they want the court to note. Some judges or masters
may disagree with this, but I think most (including me) feel it’s a good practise. If you are referring to
a particular paragraph or passage, slow down when giving the reference to the court (“…paragraph 32
on page 56, your Honour”) until the court has located the reference, and give the judge or master a bit
of time to underline or notate the reference if he or she wants to. If you quote from the passage, read
it a bit slower than you’d talk, so that it sinks in.
And remember; cases aren’t the only authorities. It helps sometimes to include excerpts from the rules
and especially statute sections. It never works to say “…section ___ of the Business Corporations Act
says…” as invariably the court will want to know exactly what the provision says (unless, of course, it’s
a reference to oft-used portions of, for example, the Family Relations Act).
M.
Submissions
Speak up and slow down. Often counsel are so prepared, have reviewed their submissions so much, or
feel the points are so obvious, that they deliver a machine-gun speech. SLOW DOWN and watch the
master or judge from time to time. Is he or she writing? If so, pause and allow a couple of seconds for
note-taking. Don’t wait until the court looks up or invites you to continue. Just pace your comments
and allow for them to be properly recorded.
If the judge or master interrupts you or asks a question, it is a sign. Many counsel seem to treat
judicial comments as nuisances and distractions (which, truthfully, some are); don’t be one of those
counsel. Even if the comment or questions is a digression from your scripted submissions, remember
4
Rule 51A(12)(b).
5.5.7
that it reflects the court’s thinking and concerns. Good counsel see the comments as such, and often
turn the question to advantage. Answer the question, and then return to your script. Remember that
good advocacy is nothing more than persuasion. It is accomplished best through conversation with
the court (assuming, of course, that the judge or master is part of the conversation).
N.
Sit Down
When you are done, end quickly and crisply with a comment such as “subject to any questions your
Honour might have, those are my submissions.” Then sit down and remain seated until it is time to
reply, or to rise in response to a question from the bench. If you are in submissions and your friend
rises to object, SIT DOWN. Even if you feel the interruption or objection is inappropriate, sit down.
By doing so you indicate your respect for the court’s ability to deal with the matter. It is frustrating to
the court to try and deal with two standing counsel, both bent on making their own submissions.
With two counsel on their feet, the matter rapidly degrades from submissions to simple argument. Do
not participate in that argument.
O.
Objections
On a related note, be very cautious about interrupting your friend in his or her submissions. If he or
she misstates a fact (unless an immediately significant one) simply note it and address it in reply.
P.
Reply
Reply is the right of the applicant (assuming there is a basis for the reply). It constantly amazes me
how typically counsel, even very experienced ones, rise apologetically and ask for reply, always (and I
mean always) advising the court that “I just have a brief reply.” Reply is not meant, of course, just to
repeat and reinforce your original submissions. It is meant to address those points from your friend’s
submissions that were not addressed in your original submission, and should be restricted as such. It is
your right; simply rise and tell the court “I have a reply, your Honour” and set it out. Do not
apologize for the fact, and do not attempt to be overly brief. Take the time you need to properly
reply.
Q.
Sur-Reply
Many counsel, responding to the motion, do not understand sur-reply. It is a reply to the reply. It is a
sure sign of unschooled counsel when they rise, seemingly in the belief that the ping-pong game of
submissions can go on until either counsel exhaust all discussion or the court loses its patience. Surreply is not the right of the respondent, and counsel must request it, and be prepared to explain why
he or she is entitled to it. Otherwise he or she risks being told to sit down, possibly in front of a
client.
R.
Listening
I have already mentioned the importance of listening carefully to any comments or questions from the
bench. It is as (or perhaps more) important to listen to submissions and arguments made by the other
side. A large part of advocacy is listening, not talking. Consider whether or not your friend has even
addressed the issue, and what portions of his or her argument actually need response. Listen as well
for mistakes in facts or evidence and correct those mistakes in your reply.
5.5.8
S.
Costs
Rule 57(9) provides that costs follow the event. That means that, if the court says nothing about costs,
the successful party is permitted to draft the order with a term granting him or her costs. Still, it is
always the best practise to address costs with the master or judge. If costs are awarded, the
presumption is that they are not payable until the proceedings at large are finalized. To obtain an
order for costs payable forthwith usually requires conduct that is more than usually censurable.
T.
Decision or Reasons
The vast majority of chambers decisions are given orally immediately after submissions cease. WRITE
THEM DOWN. Be sure you have noted the various terms of the order given. If there is any doubt,
or if you need clarification, rise and enquire immediately. Most judges or masters will not resent this,
and it is far, far easier to clarify or correct an aspect of the order immediately, rather than wait several
weeks. If you are dealing with a self-represented litigant, the court will routinely grant your request to
dispense with approval.
If the judge or master reserves his or her decision, do not ask how soon you can expect them. Every
judge or master is keenly aware that counsel and clients want as quick a decision as possible, but
predicting the time frame is often difficult, and members of the bench often resent the question.
U.
Settling an Order
The proper procedure, of course, is for one counsel (usually the applicant’s) to draft the order and send
it to the other lawyer for his/her approval. If you disagree with the terms talk to your friend; a short
discussion may resolve the matter. If counsel cannot agree on the expression of the court’s decision,
the order must be settled. It is possible to bring the matter back before the original judge or master
(Rule 41(23), for example, provides for the court’s “special directions respecting the carriage, entry, or
service of an order”) but most judges or masters do gjdlnxdghdgjfgjumniu8gkfjgmgflpie the registrar
unarmed. At the very least you must obtain and present the chamber clerk’s notes. If there is any
question still remaining you must obtain and present a transcript of the court’s oral decision. The
transcript, in almost all cases, is preferable to the chambers clerk’s notes.
5.5.9
III. Appendix A⎯Afffidavits
Contents. Rule 51 establishes all of the important parameters for the form, content, and use of
affidavits. I will consider some of the sub-rules, but first a note on the proper swearing of an affidavit.
It goes without saying that the person taking the oath of the affiant must do so in his or her presence.
If the affidavit is sworn outside of British Columbia, the person taking the oath must be a notary; a
commissioner for oaths in that particular jurisdiction is not sufficient, as the commissioner’s authority
is territorial. Any alterations to the body of the affidavit must be initialled by the person taking the
oath.
Rule 51(2.1) requires that the affidavit be identified in the upper right corner by the name of the
deponent, the sequential number of that deponent’s affidavits in the proceeding, and the date of the
swearing. Most counsel now include this endorsement, and it is invaluable to the court in quickly
finding and referring to the correct affidavit.
Rule 51(8.1) requires that in addition to identifying each exhibit in the usual way (“Exhibit A…D.
etc.”) you must number, by page number, all of the affidavit materials in toto. Start with page 1 of
Exhibit A and run through to, e.g., Exhibit Q on page 38.
Sub-rule 10 is far and away the most important and substantive aspect of Rule 51. An affidavit is not a
carte blanche to hearsay. The affiant may only state in the affidavit what he or she may say in
evidence in trial. The exception to this rule is: if the matter is interlocutory, or if the court grants
leave, hearsay may be included. Further, hearsay evidence is only admissible if the source of the
hearsay is given.
Far too many counsel misunderstand or ignore this rule. It is routine to find affidavits that say:
“I was told…” (by whom?)
“Everyone in town knew…”
“I was told by Crown Life Insurance” (Insurance companies do not speak; their
representatives do)
“I learned…” (from whom, or by what means?)
“I heard that…”
None of these is admissible; all are unattributed hearsay.
Remember that basic case authority on the admissibility of hearsay5 applies, and that if use of hearsay
is demonstrably necessary and the evidence is itself is reliable, it is admissible.
Affidavits may only contain evidence. They are not vehicles for argument, speculation, or expression
of surprise, anger, or horror, unless that response is essential evidence on the point at hand. It very
rarely is.
Organization. Try and group the various paragraphs of your affidavit by topic. More and more
counsel (thankfully) are doing this, and using sub-headings such as “Marriage background,”
“employment history,” “property issues,” “child-rearing” or the like. Again, this is an aid to your own
organization of your thinking and presentation, but also helps the court greatly in focusing and
finding evidence quickly in court.
DO NOT slavishly address every paragraph of your friend’s affidavit unless you absolutely must. It is
extremely tedious to follow the thread in such “call and response” affidavits. Rather, consider first if
all paragraphs need response. They may be irrelevant to the application, or inadmissible. If so, simply
5
R. v. Khan (1990), 59 CCC (3d) 92 and R. v. Smith (1992), 75 CCC (3d) 257.
5.5.10
put a paragraph in your affidavit saying “My counsel has advised me that paragraphs 3, 5, 12, and 17
are irrelevant/inadmissible etc and I will therefore not respond, but reserve my right to do so in the
event the court disagrees.”
If you are responding to a redundant or repetitious affidavit, simply group all of the repetitive
paragraphs in your response: “In response to paragraphs 3, 12, 15, and 20 respecting occupancy of the
home, I say that…” The court always appreciates such evidence of forethought and analysis on the
part of counsel.
Finally, a general tip: more and more affidavits and thicker and thicker binders of evidence will not
win the day in chambers. This is a hard point for clients, who may feel that one more affidavit by a
neighbour or relative would have won the day, but be judicious and discerning in selecting and
including affidavits in your materials. Repetitious support affidavits are very rarely helpful, and the
court is limited, in the fast-paced hurly-burly of chambers, in its ability to absorb excessive numbers of
affidavits.
5.5.11
IV. Appendix B⎯Excerpts from the Judgment of Spencer J. in Creber v.
Franklin (1993) B.C.J. No. 890 Van. Registry No. D083222
THE AFFIDAVIT MATERIAL
¶ 18
Having dealt with the merits of the applications, I wish to say that I consider much of the
material filed on both sides to be of poor quality. In the respondent’s case, since she now acts for
herself, she may be excused for not knowing the requirements of Rule 52 and for failing to appreciate
what is and what is not relevant or probative of her case. That cannot be said for whatever the
solicitors may have drawn her material, nor for petitioner’s case for he has been represented by
counsel throughout. It may be that his affidavits were not drawn by his present counsel but by some
other lawyer. In my opinion no lawyer would be proud to have his or her name attached to such
poorly composed material. I refer to the following examples, and there are many more that could be
singled out.
¶ 19
There are unsworn letters attached to the affidavits that express the opinions of their authors.
Save where they may be admissible as expert opinions they are inadmissible. There are adjectival
descriptions by one side of the alleged acts or statements of the other. They are irrelevant. The
affidavits should state the facts only, without stooping to add the deponents descriptive opinion of
those facts. It should be left to argument to persuade the trier of fact what view he or she should take
of them. For counsel to permit affidavits to be larded with adjectives expressing an opinion about the
conduct of the other side contributes nothing to the fact finding process. On the contrary, it does a
disservice. It exacerbates existing ill feeling, it pads the file with unnecessary material and it wastes the
court’s time.
¶ 20
In this material there are descriptions by the petitioner of how he views some of the
respondent’s actions. The court is not concerned to know whether he was “shocked” or otherwise
offended by what the other did, unless that is made relevant by some condition induced in him which
explains some act attributed against him. It is the court’s opinion of a party's actions that is
important. Self-serving protestations of surprise, shock, disgust or other emotions claimed by a
deponent are a waste of time and counsel would do well to remember that. It is even more
objectionable when a deponent is permitted by counsel to swear what a third person’s feelings were as
the result of what the opposite party did, or swear to what a third person has or has not experienced in
his or her lifetime. If that is relevant at all, and it can rarely be so, then that third person should
depose to it directly and give the factual foundation upon which he or she relies. If it is to be tendered
by hearsay under Rule 51(10), then the source of the information and a belief in it must be deposed to.
¶ 21
There are many instances where the allegations and replies in this material meet only
obliquely. It is difficult to decide whether they contradict or carefully avoid contradicting each
other. There is an affidavit sworn by a Mr. Cavoukian in which he expresses an admissible opinion
about the characters of the petitioner and his new partner but then goes on to wish them, under oath,
“the very best.” Could anyone think that that has any relevance to this action?
¶ 22
I regret having to conclude these reasons with this criticism of the drafters of the material, but
I feel compelled to do so in defence of the chambers process which often sees many counsel waiting to
be heard while others waste the court's time with irrelevant material. Too many counsel, particularly
I regret to say in family matters, seem to have little acquaintance with the contents of Rule 51 and
with the cases that show what may and may not be put in an affidavit. They are responsible for the
great waste of paper and time and the escalating cost which flows from their lack of control over their
own proceedings. In this case I have disregarded whatever material is inadmissible irrelevant and I
direct that there shall be no costs nor disbursements awarded to either party in connection with this
motion or with the preparation of the affidavits in support of it.
SPENCER J.