JULIEN JOHN BEAUCHAMP, PETITIONER - v. -, 2023 SKKB 88

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 88 Date: 2023 04 25 Docket: DIV-SC-00057-2020 Judicial Centre: Swift Current BETWEEN: JULIEN JOHN BEAUCHAMP, PETITIONER - and - NORMA BEAUCHAMP, GREGORY BEAUCHAMP, JORDAN BEAUCHAMP, BEAUCHAMP FARMS LTD. and BEAUCHAMP ACRES LTD., RESPONDENTS AND: Docket: QBG-SC-00016-2021 Judicial Centre: Swift Current BETWEEN: GREGORY JARET BEAUCHAMP, JORDAN JAMES BEAUCHAMP, BEAUCHAMP FARMS LTD., and BEAUCHAMP ACRES LTD., PETITIONERS - and -

JULIEN BEAUCHAMP, NORMA BEAUCHAMP and NEW AGE FARMS LTD., RESPONDENTS Counsel: E.F. Anthony Merchant, K.C. for Julien John Beauchamp Michael R. Scharfstein and Courtney J. Fisher for Norma Beauchamp Sherry L. Fitzsimmons, K.C. for Gregory Beauchamp, Jordan Beauchamp, Beauchamp Farms Ltd. and Beauchamp Acres Ltd. ___________________________________________________________________________ FIAT DANYLIUK J. April 25, 2023 ___________________________________________________________________________ [ 1 ] I am the case management judge appointed by the Chief Justice regarding these matters.

The litigation has been going on for over two years. The parties should be concentrating on getting this dispute on to trial, but instead the skirmishing continues. [ 2 ] In March 2023 I heard numerous crossing applications. Some were more urgent than others, which has resulted in separate fiats being written.

In this continuing series of applications I have referred to the petitioner as “Julien”, the female respondent as “Norma”, and the male respondents (the sons of Julien and Norma) as the “Boys”. [ 3 ] This fiat pertains to only one issue: the results of Julien’s counsel filing a substantive affidavit sworn by a member of his firm, and the ability of said counsel to unilaterally withdraw that affidavit at his sole option. [ 4 ] Here’s what happened. In reply to evidence filed by Norma and the Boys, Julien’s counsel filed an affidavit sworn by a member of his firm, Ms. Karolee Zawislak.

As already noted, this affidavit was not as to uncontroverted matters. It was a substantive affidavit. [ 5 ] Mr. Merchant K.C. takes the position that if this creates a problem, including a problem with the Merchant Law Group continuing to represent Julien, then the affidavit will simply be withdrawn. In fact, Ms. Zawislak purports to swear to this even though it is an argument and not a fact, and that paragraph is likely an improper averment. The last paragraph of the Zawislak affidavit reads as follows: 19.

The evidence contained in this my affidavit is uncontentious, most appropriately comes from me and not on information and believe [ sic ], and not from Julien. But if by receiving this my affidavit, the issue of Merchant Law Group’s representation of Julien is questioned, then I withdraw the affidavit and it should not be received or considered by this Honourable Court. [ 6 ] Neither Ms. Zawislak nor Mr. Merchant K.C. is a neophyte. Both have been lawyers for well in excess of 40 years. The applicable principles should be well-known to both of these lawyers. [ 7 ] On behalf of Norma, Mr.

Scharfstein took exception to the Zawislak affidavit. While the Zawislak affidavit was served at a time that rendered it impossible to bring a formal application before me, by letter to the Court Mr. Scharfstein set out his opposition to this affidavit and his position that the filing of same resulted in the disqualification of the Merchant Law Group as counsel for Julien. [ 8 ] I have already indicated to counsel that I am not prepared to deal with the potential disqualification of a law

firm based on a letter. Given the timing, I do not fault Norma’s counsel; rather, I simply cannot deal with his request. Should Norma wishto seek to disqualify the Merchant Law Group from continuing to act for Julien, she should do so through the procedure called for in TheQueen’s Bench Rules, by serving a notice of application and supporting material. I will deal with that application as the case managementjudge. This fiat does not say how I will rule on such an application. [9] This, however, does not presently deal with the affidavit of Ms. Zawislak. Mr.

Merchant K.C. advanced noactual authority for what he termed the “conditional filing” of the Zawislak affidavit. He only submitted that “other judges have let medo this” but gave no concrete examples of which judges did so, and on which files. [10] Respectfully, I cannot agree with the position of the Merchant Law Group. There is no “conditional filing” ofaffidavits. At most, the withdrawal of evidence placed before a court is a discretionary order – and the discretion is the court’s, notcounsel’s. [11] I first observe that Mr. Merchant’s logic is flawed.

By extension, if counsel at any point put evidence before thisCourt and it turned out to have adverse consequences, then same counsel could simply withdraw that evidence and avoid any adverseeffects. So, by way of example, if Mr. Merchant called a witness at the trial of this matter and the witness was destroyed in cross-examination, then presumably he could simply withdraw that witness and have the Court treat the matter as if that witness had neverbeen called. This is clearly not a tenable result. [12] The proper (and only) procedure to withdraw an affidavit is to proceed by way of notice of application.

Counsel,and parties, are not entitled to simply stand up in the middle of proceedings and say “Oh, that evidence isn’t working for me so Iwithdraw it”. Litigation would be quite a mess if this was countenanced. [13] Even then, evidence cannot be withdrawn as of right and is subject to obtaining leave of the presiding court.Once a properly drawn application is before the court then the court must decide whether to exercise its discretion. In doing so, sevenfactors will be considered as set out at para. 36 of Gill v Gill, 2004 BCSC 518, 46 CPC (5th) 379 (the “Master Brine factors”), namely: 1.

Was the affidavit filed by mistake? 2. Has the affidavit been used, in the sense of having been before the court, during the course of considering an application? 3. Is there a pending application before the court for which a party has indicated it intends to rely upon the affidavit? 4. Is the application to withdraw the affidavit made as a strategic or tactical decision to deny the other party access to relevantinformation or the ability to cross-examine the deponent? 5. Would the other party be prejudiced in any way by the withdrawal of the affidavit? 6.

Are there policy considerations which would militate against a withdrawal of the affidavit? 7. Would the administration of justice be adversely affected by the withdrawal of the affidavit? [14] This Court must start with the well-established proposition that lawyers should not be advocates and witnessesin the same matter. This rule does not apply to any particular lawyer; the entire firm is bound by this ethical rule. It cannot be avoidedsimply by having some other lawyer in the same firm swear the affidavit or take the witness stand.

While this is trite law inSaskatchewan, reference may readily be had to the foundational cases of R v Ironchild (1984), 30 Sask R 269, (CA)and Re Bazant; Bilson, University of Saskatchewan Faculty Association and Bazant (1984), 33 Sask R 1, (CA). [15] A more recent expression of this rule is found in Phillips Legal Professional Corp. v Vo, 2015 SKQB 248, 473Sask R 48, where Justice Ball stated at para. 28: [28] Lawyers who act as counsel in a proceeding must not put their own credibility in issue by asserting as fact anything that is properlysubject to challenge.

This prohibition extends to testifying before a tribunal, giving evidence in the form of an affidavit, or effectivelybecoming an unsworn witness by making submissions about factual matters that should properly be proven by evidence. As well, alawyer may not do indirectly what cannot be done directly by adducing controverted evidence from members of his own law firm. See:Chapter 4.02 of the Code of Professional Conduct of the Law Society of Saskatchewan; Adams v Canadian Tobacco Manufactures’Council, 2010 SKQB 308, 360 Sask R 236.

Credibility concerns are compounded when a lawyer represents himself as a party to theproceeding, as Phillips has done in this dispute. [16] In Wanner v Christie, 2016 SKQB 147, Justice Layh disallowed such an affidavit and at para. 66 noted: [66] A local practice in Saskatchewan has clearly evolved, endorsed by the courts: no distinction will be drawn to permit lawyer “A” ina firm to swear an affidavit to permit lawyer “B” in the same firm to argue a position based on the statements in the affidavit, unless thecontents of the affidavit are merely formal or uncontroverted. [17] Here, this is exactly what Mr.

Merchant K.C. is attempting to do. It is improper. The Court cannot allow it. [18] Further, notwithstanding his unsupported assertion that “some judges let me do it”, Mr. Merchant K.C. shouldknow full well this is the rule and he has breached it. After all, he was counsel on the Adams case [2010 SKQB 308, 360 Sask R 236]cited by Justice Ball in Phillips, immediately above, which was decided about a dozen years ago. Indeed, he expressly acknowledged thewell-known rule in open court in Merchant Law Group v Compushare Ltd., 2008 SKCA 173 at para 2, 306 DLR (4th) 536.

How he cannow purport to disavow the rule remains a mystery to me. [19] Whether to grant a withdrawal of evidence order is a matter of pure judicial discretion. The Merchant Law

Group’s position that the Zawislak affidavit was “filed conditionally” and that they “reserved the right” to withdraw that affidavit iswithout legal foundation. In this regard see J.L.R. v M.V.H., 2020 SKQB 49 at para 9 (citing McMaster v Fletcher, (ONSC), [1938] 2 DLR 769 (QL) (Ont H Ct

J) at para 5): [9] First, relying on McMaster v Fletcher, (ON SC), [1938] 2 DLR 769 (QL) (Ont SC Ct) at para 5, he stated an orderremoving affidavits “is within the jurisdiction of the Master and purely discretionary”. Master Brine concluded in P.G. at para 18: [18] Although there does not appear to be any discussion of the authorities referred to above, [the court in McMaster] was of the viewthat the question of whether or not an affidavit filed in the court file is capable of being withdrawn is a matter within the discretion of thecourt.

Presumably this would, at least, fall within the power of the court to govern its own process. [20] Further in J.L.R. at para 10, Justice Tochor said: “Second, applicants are not to be permitted to withdrawaffidavits in order to avoid cross-examination”. See also Law Society of Upper Canada v Canada (Minister of Citizenship andImmigration), 2006 FC 1042 at para 29, 299 FTR 107. [21] As a result I do not accept Mr. Merchant’s assertion that he has a “unilateral right” to withdraw affidavits onceserved and filed, nor that he may file same “conditionally”.

Those assertions are simply incorrect. [22] In the case at bar there was an attempt on behalf of Julien to rely on the Zawislak affidavit during argument yetwithdraw it once the prospect of the exclusion of the Merchant Law Group became apparent. There is no satisfaction of the Master Brinefactors. The position is entirely self-serving and it is not a correct statement of the law. [23] The Zawislak affidavit stays part of the record on this matter.

As noted I am neither striking same norprohibiting the Merchant Law Group from acting on this matter, but neither am I foreclosing Norma or the Boys from bringing anapplication to exclude that firm. I leave it open to them to decide, and this fiat should not be taken as any indication of how I woulddecide such an application. J. R.W. DANYLIUK