Weber v. Erb and Erb Insurance

Republished Excerpt of citation follows // Emphasis Added

Weber v. Erb and Erb Insurance Brokers Ltd., 2006 CanLII 9987 (ON SC), <>, retrieved on 2017-04-11

[16]      Evidence on behalf of the plaintiff on these various motions was presented by way of affidavits of Michael A. van Bodegom, sworn 11 October 2005 and 31 October 2005.  Mr. van Bodegom is a partner in the law firm representing the plaintiff in this action.

[18]      The motions came before me initially on 13 January 2006.  In the course of his submissions, Mr. Keller raised an objection to the plaintiff’s counsel relying on affidavits of his partner, Mr. van Bodegom, and requested these affidavits be struck on the following grounds:

i)                    hearsay evidence; and,

ii)                  evidence on an issue in dispute may not be tendered from a solicitor of the firm representing a party.

[19]      Mr. Keller sought a ruling on his objection before proceeding with the motion.

[20]      Although Mr. Keller had made reference in his factum to the improper use of a solicitor’s affidavit, Mr. Steele indicated he was caught by surprise as to the request the affidavits be struck.

[21]      Given the importance of the relief claimed, I declined to rule on Mr. Keller’s request and adjourned the motions to 10 February 2006 to allow Mr. Steele the opportunity to contact his client and obtain an affidavit from him.

[24]      I allowed a further adjournment to 24 February 2006 so that Mr. Steele might contact his client and respond to this new motion.  I also directed the plaintiff provide disclosure as to the sailing trip.

[25]      An affidavit, sworn by the plaintiff on 23 February 2006, was tendered, the same being sworn in the Republic of South Africa.  In the circumstances, I allowed a fax copy to be filed.

(v)                                                        Solicitor’s Affidavits

 [27]      Mr. Keller seeks a ruling prohibiting the use of the affidavits from Michael van Bodegom and striking same from the record.

[28]      The defendant’s first motion was served on plaintiff’s counsel on or about 22 August 2005, and was returnable in motions court on 31 August 2005.  Counsel agreed to adjourn to the long motion ready list for the week of 17 October 2005.  The two affidavits in question were sworn on 11 October 2005 and 31 October 2005.

[29]      The challenge on the use of these affidavits first appeared in Mr. Keller’s factum served prior to the return date of the motion on 13 January 2006.  I permitted adjournments on two occasions to allow Mr. Steele an opportunity to obtain affidavits from Mr. Weber.

[30]      Some years ago, The Law Society of Upper Canada considered the problems associated with solicitors providing evidence.  Rule 4.02, Rules of Professional Conduct, in its present form, provides as follows:

                         4.02  THE LAWYER AS WITNESS

                        Submission of Affidavit

                        4.02  (1)  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 submit his or her own affidavit to the tribunal.

                        Submission of Testimony

                        (2)  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.


                        (3)  A lawyer who is a witness in proceedings shall not appear as advocate in any appeal from the decision in those proceedings.

[31]      The commentary following this rule provides as follows:


                        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.

[32]      Further,

                        [37]  The Law Society of Upper Canada publication entitled Professional Development & Competence, Conflicting Duties,, provides this helpful comment to the profession:

                        Where a lawyer is both advocate and witness, concerns are raised about the proper administration of justice and about the appearance of impropriety.  The advocate who gives evidence puts her personal interests and credibility in issue.  Her professional role is necessarily changed as is her relationship with other counsel and with the adjudicator because those others are then entitled to comment about the credibility of her testimony, as well as about its weight and significance.  Her participation as a witness therefore compromises her role as lawyer and her duties to the court.  (P. Perell, Conflicts of Interest in the Legal Profession (Toronto:  Butterworths, 1995) 15 77-78).

[33]      The Rules of Professional Conduct are not binding on the court, but are persuasive as an important statement of public policy:  see MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 at para. 18 (S.C.C.).

[34]      The use of solicitor’s affidavits has long been prohibited for other than consent or undisputed matters.  Some years ago, the issue was addressed by Schroeder J.A. in Imperial Oil Ltd. v. Grabarchuk (1974), 1974 CanLII 869 (ON CA), 3 O.R. (2d) 783 (Ont. C.A.) In paragraph 2 he said:

                        Both counsel for the appellant and the respondent who appeared before this Court had made affidavits which had been submitted to the Court of first instance in support of and in opposition to the appellant’s application.  It was not until the question was raised by the Court that either counsel appreciated the impropriety of counsel who had been a witness in the proceedings appearing as counsel on the appeal.  This is a well-settled rule which the Court has strictly enforced over the years.  In the circumstances we felt it necessary to adjourn the hearing of this appeal to the May sittings in order to facilitate the appointment of other counsel for both parties.

[35]      Solicitor’s affidavits, as here, often contain hearsay evidence which, generally speaking, is unreliable.  The solicitor is exposed to cross-examination, a futile exercise as there is no personal knowledge but might, by necessity, expose communications between client and counsel.  In some cases, the purpose of the solicitor’s affidavit is to shield the client from cross-examination.  Such is improper.

[36]      The affidavits of Mr. van Bodegom were tendered as the client was not available.  As later seen, however, Mr. Weber was able to provide affidavits, signing same when in port after electronic communication with his counsel.

[37]      The principles enunciated in Rule 4.02 and in prior court rulings extends to partners of counsel as well as other members or employees of the firm.  In A. Shakoor Manraj v. Yaw Bour (1995), 44 C.P.C. (3d) 111 (Ont. Gen. Div.), Kitely J. prohibited counsel from appearing on a motion.  Although counsel was not the deponent of the affidavit, he was the source of the information relied upon by the deponent on a key factual matter.

[38]      Here, Mr. van Bodegom relies on Mr. Steele for significant information regarding the status of the action and of the client.

[39]      Far too often, affidavits from solicitors, or other persons in the employ of the law firm, are tendered in contentious proceedings.  This is an unacceptable practice.  The best evidence is from a deponent with actual knowledge, usually the client.  The solicitor, as here, relies on others for information.  As subsequently discovered, the information was incomplete which further demonstrates the dangers associated with the use of such affidavits.

[40]      If there are legitimate reasons for not tendering a proper affidavit from the client or persons with actual knowledge, such as the individual being at sea, counsel should be seeking leave to tender evidence in some other form.

[41]      In this case, there was ample time for counsel to obtain affidavit evidence from Mr. Weber.  Mr. Steele and Mr. Weber were able to communicate with each other, at least by electronic means.  The traveling itinerary was well known.  The affidavits should have been completed while Mr. Weber was in port long before the return date of the motions.  Further delay has resulted.

[42]      The issue now is whether the affidavits of Mr. van Bodegom should be struck or edited.

[43]      Editing, to remove supposed evidence relative to the issues in dispute, leaves only references to the litigation process, such as the examination for discovery and certain documents.  This evidence is not in dispute and could be provided by other means.

[44]      Editing would have the same result as striking the affidavits on these motions.  The remaining evidence might be of assistance on the defendant’s motion that was not heard, namely productions and answers regarding the examination for discovery of the defendant’s representative.

[45]      Accordingly, the affidavits of Mr. van Bodegom are struck from the record on the motions heard.

(vi)                                                      Motion To Set Aside

[46]      The focus of this motion is the extended trip of the plaintiff and non-disclosure of same.

[47]      Documentation from Picton Castle, the operators of these around-the-world voyages, indicates Mr. Weber applied for the 2005-2006 trip by e-mail on 19 March 2003.  He completed the application form and added the following comment:

                        “I have worked for many years at my occupation with a dream of world travel.  This cruise would be departure June 2005.  It would take 2 years to plan for that long an absence period.  I have no dependants, and adequate financial resources to participate.  I have a sense of humour, and enjoy lots of friends.”

[52]      On the motion heard 7 October 2004, Mr. Weber did not disclose his application for this voyage notwithstanding such was delivered to Picton Castle in March 2003 and was for a specific voyage, namely 2005-2006.  From the documentation received from Picton Castle, it is clear Mr. Weber knew, in March 2003, or shortly thereafter, he would be on an around-the-world sailing voyage as of June 2005.  His application was accepted, conditional on payment and medical fitness.

[53]      Even at this point, Mr. Weber has not made full disclosure.  There are other documents.  Mr. Weber says he does not have access to his records, no doubt as he is away; however, it must be noted he and his counsel have had seven months to prepare for this motion.  These documents could and should have been provided.  By providing affidavits from a partner in the law firm, Mr. Weber was initially shielded from inquiry which, in my view, is inappropriate.

[54]      An adverse inference may be drawn when a party fails to tender evidence of which he alone is in possession of or fails to call a witness who would have knowledge of the facts:  see Levesque v. Comeau, 1970 CanLII 4 (SCC), [1970] S.C.R. 1010 (S.C.C.); and Vieczotak v. Piersma (1987), 1987 CanLII 4403 (ON CA), 36 D.L.R. (4th) 136 (Ont. C.A.).

[55]      An adverse inference is appropriate in this case due to Mr. Weber’s neglect in providing complete disclosure.  Nevertheless, the limited documentation provided clearly establishes he knew of his intended absence long before the motion was argued on 7 October 2004. 

[56]      Furthermore, in his affidavit sworn 1 October 2004, Mr. Weber told the court he was ready to proceed to examinations for discovery and trial without further delay.  Given his six year delay in prosecuting this action, Mr. Weber was attempting to avoid the dismissal of his action by presenting an intention to move the action on in a diligent manner.

[57]      Rule 59.06(2)(a) and (d) provide as follows:

                        (2)  Setting aside or varying – A party who seeks to,

                        (a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

                        (d) Obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed.

[58]      To succeed on this motion, the moving party need only establish the fraud, or deception, relates to the issues that were material.  It is not necessary to show the fraud affected or might have affected the result:  see 100 Main Street East Ltd. v. Sakas (1975), 1975 CanLII 381 (ON CA), 8 O.R. (2d) 385 (Ont. C.A.); and Re Cook, [1950] O.W.N. 739 (Ont. H.C.J.).

[59]      Mr. Weber knew of his intended absence on this voyage and failed to disclose such on the original motion.  He misrepresented his availability to continue the litigation and, in essence, deceived the court on 7 October 2004.

[60]      A party has a duty to make full and frank disclosure on any particular relevant to the issue in dispute.  Silence is not acceptable.  Misrepresentation, or deception, in this case amounts to fraud, and I so find.

[61]      Even if it could be said Mr. Weber was unaware of his acceptance for the voyage, which I do not accept, he had a duty to disclose the application, deposit and intention to be absent if accepted.

[62]      On a motion to dismiss an action for delay, surely a motions judge would take into consideration the plaintiff’s intention to be absent for a year long voyage and thus unavailable for the litigation.  This trip was clearly relevant to the issue of delay and, in my view, non-disclosure of the event likely affected the result on the prior motion.

[63]      It is simply inconceivable a motions judge would dismiss the motion and allow the action to continue and, as well, permit a party to cause a further delay while away on a year long vacation.  In my view, had disclosure been provided, the motions judge would have considered either dismissing the action or allowing it to continue on terms, one of which would obviously have been to prohibit the plaintiff’s absence until completion of the trial.

[64]      The moving party has more than met the test under Rule 59.06(2).  The motion is granted.  The order of Glithero J. on 7 October 2004 is set aside.

[65]      I wish to add I am satisfied Mr. Weber remained silent as to his intentions until such were discovered by the opposing party.  Mr. Weber did not inform his own solicitor.  Had Mr. Steele been aware of his client’s plans, I am certain he would have made immediate disclosure.  No solicitor would attempt to actually shield a client in these circumstances as it would amount to participation in a fraud on the court.  Mr. Weber had no intention of disclosing his absence.  He assumed, incorrectly, he had control over this litigation and would prosecute his claim at his convenience.

(vii)                                                      Motion To Dismiss For Delay

[66]      This action was dormant from 1998 to 2004.  Mr. Weber chose not to pursue the lawsuit, claiming, in his affidavit of 1 October 2004, his financial circumstances prevented continuing.  In March 2003, he applied for an around-the-world voyage for 2005/2006 at a cost of $32,000.00 U.S. and informed Picton Castle he had “…adequate financial resources to participate…”.

[67]      The only conclusion available is that Mr. Weber misled the court in his initial affidavit.  He was able to fund the lawsuit but chose the vacation instead.  The year long sailing expedition was obviously a greater priority.

[68]      Once a lawsuit is commenced, it must proceed in a timely manner.  The parties have an obligation to be diligent, be available for each step in the process and accessible to instruct counsel as matters arise.

[69]      It is difficult to imagine a party leaving the jurisdiction on an extended vacation during a lawsuit.  It is inconceivable such would occur when the same party has already caused a six year delay.

[70]      In February 2004, Mr. Weber decided to re-activate this lawsuit.  Examinations for discovery and production of documents appear to be the only outstanding matters required to be completed before trial.  These steps remain incomplete.  Had Mr. Weber proceeded diligently, rather than pursuing a year long vacation, the discovery and production process would have been completed by the spring of 2005.  The trial would have been scheduled for the November 2005, February 2006 or, at worse, the May 2006 sittings.  As it is, if this action continues, the trial will not likely occur until 2008, particularly in view of the significant back-log which has recently developed in Kitchener.

[71]      As hereafter discussed, there is now good reason to question whether the documents relevant to the issues still exist.

[72]      The delay attributable to the plaintiff is now in excess of seven years.  The cause of action is said to have occurred in 1996.  The limitation period has long expired.

[73]      In its original motion in October 2004, it appears the defendant relied on the plaintiff’s delay and the presumption of prejudice arising therefrom.  On this motion, the defendants provide a more complete evidentiary basis which, it is noted, has not been challenged in the plaintiff’s responding affidavits.

[74]      Mr. Keller submits the plaintiff’s delay has caused prejudice to the defendant as follows:

a)            Mr. Weber has not produced documents from Regal Insurance regarding client transfers in February 1996, prior to termination, despite request which documents may no longer exist;

b)            the lawsuit involves events commencing in 1984 and there will be memory problems for witnesses;

c)            some witnesses have not been identified as a result of the non-disclosure of documents, namely clients, and it is unknown if these persons are able to testify or even alive;

d)            the company financial statements are required to disclose the lawsuit as a contingent liability which adversely affects the value of the company; and,

e)            Mr. Westfall is 59 years of age, suffers from cerebral palsy and wants to retire in the next few years and sell his shares but the value of his shares is impaired as a result of this litigation.  His health may be a concern when this action is called for trial two years from now.

[75]      Mr. Steele, in his submissions, only addressed the existence of documents.  He says in the circumstances of his client’s termination by the defendant on 15 February 1996, it is not unreasonable he has no documents.  He adds that inquiry has been made of Regal Insurance, the broker Mr. Weber has been with since termination, but there has been no response.  Mr. Steele argues this is beyond the plaintiff’s control.

[76]      Rule 24.01, Rules of Civil Procedure, allow a defendant, who is not in default, to move to have the action dismissed for delay in certain circumstances.  Here, the basis of the motion is failure to set the action down for trial within six months of the close of pleadings.

[77]      The pleadings closed in August 1997, nine years ago.

[78]      The principles on a motion to dismiss for delay have been considered on numerous occasions.  The relief claimed is a discretionary remedy.  There is, obviously, a reluctance to dismiss an action other than on its merits.  There must be good reason to do so.

[79]      In Clairmonte v. Canadian Imperial Bank of Commerce, 1970 CanLII 470 (ON CA), [1970] 3 O.R. 97 (Ont. C.A.), Jessup J.A. said:

                        The principles to be applied on an application to dismiss for want of prosecution are succinctly stated by Diplock, L.J., in Allen v. Sir Alfred McAlpine & Sons, Ltd., [1968) 1 All E.R. 543 at pp. 555-6:

                        What then are the principles which the court should apply in exercising its discretion to dismiss an action for want of prosecution on a defendant’s application?  The application is not usually made until the period of limitation for the plaintiff’s cause of action has expired.  It is then a Draconian order and will not be lightly made.  It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.  It is for the defendant to satisfy the court that one or other of these two conditions is fulfilled.

[80]      A presumption of prejudice to a defendant occurs on the expiration of a limitation period, which is rebuttable by evidence on behalf of the plaintiff:  see Worrall v. Powell, [1989] 2 O.R. 634 at 635-638 (Ont. C.A.).

[81]      The passage of time will affect witnesses’ memories.  At some point, it is logical to conclude a presumption of prejudice exists, that recollection of events by a witness will be vague, confusing and inconclusive even with the assistance of documents to refresh memory:  see, for example, McFetters v. Drau Realty Ltd. (1986), 1986 CanLII 2767 (ON SC), 55 O.R. (2d) 722 at 726 (Ont. Div. Ct.).

[82]      Borins J., in Belanger v. Southwestern Insulation Contractors Ltd. (1993), 1993 CanLII 5503 (ON SC), 16 O.R. (3d) 457 at 471 (Ont. Gen. Div.), summarized the principles on a Rule 24 motion, saying:

                        In order to succeed on a motion to dismiss a plaintiff’s claim for delay the defendant must establish that the delay has been unreasonable in the sense that it is inordinate and inexcusable and that there is a substantial risk that a fair trial will not be possible for the defendant at the time the action is tried if it is allowed to continue.  The second part of this proposition is often expressed as the likelihood of prejudice to the defendant giving rise to a substantial risk that a fair trial will not be possible when the case is actually tried.  Examples of prejudice are the death of a witness, the inability to locate a witness, the inability of a witness to recall important facts or the loss of important evidence.  In determining whether the delay has been unreasonable the court should consider the issues raised by the case, the complexity of the issues, the explanation for the delay and all relevant surrounding circumstances.  In considering whether the defendant has sustained prejudice the court should consider the availability of its witnesses, whether the evidence is largely documentary or based on the recollection of individuals, the efforts made by the defendant to preserve its evidence and any other relevant consideration.  Prejudice to the defendant is to be considered relative to the time the case will likely be reached for trial if permitted to proceed.  The court will then balance the right of the plaintiff to proceed to trial with the defendant’s right to a fair trial and make its decision.

[83]      Belanger was approved by our Court of Appeal in Christie Corp. v. Lee (1999), 29 C.P.C. (4th) 181 (Ont. C.A.).

[84]      In Woodheath Developments Ltd. v. Goldman (2001), 2001 CanLII 28019 (ON SC), 56 O.R. (3d) 658 (Ont. S.C.J.), aff.d on appeal (2003), 2003 CanLII 46735 (ON SCDC), 66 O.R. (3d) 731 (Ont. Div. Ct.), Master Dash conducted a comprehensive review of the authorities and, at para. 29, provided this summary:

                        [29]  In conclusion, in order to dismiss an action for delay, unless the delay is intentional and contumelious:

                        (a)  There must be an inordinate and inexcusable delay in the litigation for which the plaintiff or his solicitors are responsible.

                        (b)  The delay must give rise to prejudice to the defendant, in the sense that there is a substantial risk that a fair trial of the issues will not be possible at the time that the action is likely to go to trial.

                        (c)  Inordinate delay since the cause of action arose will give rise to a presumption of prejudice.  It will be presumed that the memories of witnesses will fade over time.

                        (d)  Undue delay following the passing of a limitation period will also give rise to a presumption of prejudice.

                        (e)  If there is a presumption of prejudice, there is no onus on a defendant to prove actual prejudice.  The plaintiff must lead satisfactory evidence to rebut the presumption of prejudice, failing which the action may be dismissed.

                        (f)  The presumption of prejudice may be displaced by evidence that the issues in the lawsuit do not depend on the recollection of witnesses for their resolution, or that all necessary witnesses are available and they recall their testimony in detail, and that all documentary evidence has been preserved.

                        (g)  If the presumption is rebutted, the onus shifts to the defendant to lead convincing evidence of actual prejudice.

[85]      In the case at bar, there must be a presumption of prejudice resulting from the passage of time.  The cause of action was in February 1996 although, no doubt, there are prior relevant events dating back to 1984.  The limitation period expired some years ago.  Common sense suggests individuals will have difficulties recalling events from ten or more years ago.  Such is compounded when relevant documents to the time period in question have not been produced by the plaintiff.

[86]      No evidence was tendered on behalf of the plaintiff to rebut this presumption.  Explanations for the delay are unsatisfactory.  The initial delay of six years was said to be the result of financial limitations but, as noted previously, Mr. Weber misled the court in October 2004 by not revealing his intended year long vacation.  Money that should have been used to fund the lawsuit went, instead, towards the voyage.

[87]      The year long delay now caused by this vacation is, in my view, inexcusable.  This delay was intentional and contumelious.  Clearly, the vacation is of greater importance to Mr. Weber than this lawsuit.

[88]      It appears from the aforementioned authorities, the presumption of prejudice, with no rebuttal, ought be sufficient to grant the relief claimed; however, as I read the appellate decisions, actual prejudice is a requirement, that there must be evidence of a substantial risk a fair trial will not be possible when the action is called for trial.

[89]      On the evidence tendered, I conclude actual prejudice has been established.  The impact of the disclaimer in the company financial statements and Mr. Westfall’s desire to retire and sell his shares are only possibilities.  It is not evidence of probable prejudice.  The lack of documents relevant to a material issue, however, is a significant matter.

[90]      Both parties complain, in the usual manner, of the failure by the other to answer undertakings and produce documents.  Fundamental to the defendant’s position are documents from Regal Insurance regarding client transfers prior to the termination of the plaintiff on 15 February 1996.  Mr. Weber has been a sub-broker with Regal Insurance since that date.

[91]      The defendant produced records regarding certain client transfers.  The plaintiff has not and, despite request, neither has Regal Insurance.  Regal Insurance is under no obligation.  Mr. Weber, given his working relationship with Regal Insurance, ought be able to provide the documents.  He offers no explanation as to his failure in this regard and, in fact, made no reference to any documents required of him.

[92]      In his prior affidavit, sworn 1 October 2004, at para. 68 referred only to the defendant’s business records saying:

                        68.  While this action is based upon oral contracts, there is some writing (as described above) in respect of those agreements.  As well, the conduct of the parties, as documented through business records, will illustrate what was the relationship before the alleged breaches.  The business losses should also be reflected in business records.

      [93]      Ten years later, it is appropriate an adverse inference be drawn as to the failure to produce the documents results from the documents not supporting the plaintiff’s position.

[94]      Further, the normal retention period for business records has now expired.  There is a strong probability the February 1996 records no longer exist.  The plaintiff offers no evidence to the contrary.  Failure to produce, or even provide an explanation, supports such an inference.  I so find.

[95]      Accordingly, I conclude there is actual prejudice to the defendant.  Without these documents, at the very least, there is a substantial risk a fair trial will not be possible.  The action is dismissed.

 (ix)                                                                   Summary

[101]       In result, the defendant’s motions are granted as follows:

a)            The order of Glithero J., granted 7 October 2004, is set aside; and,

b)            The action is dismissed.

[102]       If the parties cannot agree on the issue of costs, written submissions will be required.  Further direction will be provided upon the written request of counsel for either party.




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