Page: 40
[101] As noted above, a motion was brought by the applicants to strike the Henein affidavit on
the ground that it was contrary to Rule 82 of the Federal Courts Rules. The motion to strike was
[102] Rule 82 provides as follows:
82. Except with leave of the
Court, a solicitor shall not both
depose to an affidavit and
present argument to the Court
based on that affidavit.
82. Sauf avec l’autorisation de
la Cour, un avocat ne peut à la
fois être l’auteur d’un affidavit
et présenter à la Cour des
arguments fondés sur cet
affidavit.
[103] The Rule has been applied not just to counsel of record but also to members of the same
law firm that represents one of the parties before the Court: Addo v OT Africa Line, 2006 FC
1099.
[104] In applying the Rule, the Court may accept an affidavit from a member of the firm of
solicitors representing a party on a motion where the affidavit is restricted to non-controversial
matters such as the furnishing of undisputed documents or the recitation of undisputed facts.
However, where such affidavits go further and include matters that are disputed or controversial
or are expressions of opinion or state of mind, the Court will be reluctant to accept or give
weight to such evidence: AB Hassle v Apotex Inc, 2008 FC 184 at para 46.
[105] As discussed by Stratas JA in Pluri Vox Media Corp v Canada, 2012 FCA 18 at paras 3
to 13, the purpose of Rule 82 is to prevent, as much as possible, “the invidious circumstances
that can arise when lawyers act as both witnesses and advocates in the same matter” (para 3). In
2013 FC 525 (CanLII)
withdrawn without prejudice to the applicants’ right to impugn the evidence at the hearing.
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