Vapor Canada Limited (Plaintiff)
v.
John A. MacDonald, Railquip Enterprises Limit
ed, and Vapor Corporation (Defendants)
No. 2
Trial Division, Noël A.C.J.—Ottawa, August
19, November 25, 1971.
Civil Rights—Practice—Witness, whether entitled to coun-
sel—Canadian Bill of Rights—Right of counsel to intervene
in proceeding, extent of.
Plaintiff brought action against three defendants for
infringement of a patent and disclosure of trade secrets. An
affidavit by W concerning the patented invention was filed
by one of the defendants. W was a draftsman employed by
a firm involved in the manufacture of the patented article
but which was not itself a defendant. W accompanied by
counsel appeared for the purpose of being cross-examined
on his affidavit at the office of defendants' solicitors in
Montreal. Plaintiff applied to the Court for an order prohib
iting W from being represented by counsel.
Held, that the motion is dismissed, but while counsel for a
witness may attend the cross-examination of his client on an
affidavit and assist him by his advice, he may intervene in
the proceedings only if the client's fundamental rights or
interests guaranteed by the Canadian Bill of Rights may be
affected, e.g., his right to the protection afforded by secs.
4(1) and 5 of the Canada Evidence Act against
self-crimination.
MOTION.
Redmond Quain for plaintiff.
J. Nelson Landry for defendants.
R. H. Barrigar for affiant.
NOEL A.C.J.—By this motion plaintiff prays
that an order be issued prohibiting Robert
Watkin, an employee of Canadian Pacific Limit
ed, on his cross-examination on his affidavit
filed by the defendants, from being represented
by counsel appearing on his behalf. This motion
resulted when Watkin, for the purpose of being
cross-examined by counsel for the plaintiff,
accompanied by Mr. Barrigar, a counsel,
appeared on November 16, 1970, at the office
of the attorneys for the defendants'.
Counsel for the plaintiff did not await that
Mr. Barrigar intervene in the proceedings, but
objected strenuously to his mere presence at
the proceedings and were it not for the fact that
Mr. Barrigar took the position at that time that
he was entitled not only to be present during
Mr. Watkin's cross-examination, but also to
intervene in his examination either by way of
making objections or by asking questions, I
would have been inclined to dismiss the plain
tiff's motion on the basis that although it may
well be that Mr. Barrigar may not intervene in
the proceedings, there would be no necessity to
deal with the motion at all if he did not. Mr.
Barrigar, however, took the same stand before
me adding that as Watkin, the witness, had
interests that differed from that of the defend
ants, he was entitled to be represented and
protected by counsel who could participate in
the proceedings. He also submitted that this
was a right given to a witness by section 2(d) of
the Canadian Bill of Rights which says that
. . . in particular, no law of Canada shall be construed or
applied so as to
(d) authorize a court, tribunal, commission, board or other
authority to compel a person to give evidence if he is
denied counsel, protection against self crimination or
other constitutional safeguards;
The present action deals with the infringe
ment of a patent dealing with heaters and there
are allegations as well of disclosure being made
of trade secrets. There is, therefore, a possibili
ty that the witness may be involved in a fraudu
lent act covered by the Criminal Code. The
witness, a draftsman, is an employee of Canadi-
an Pacific Limited, who is involved in the
manufacture of a part of the patented invention.
This company consulted the firm of Mr. R. H.
Barrigar who then met with the witness Watkin.
The latter, in his affidavit of November 18,
1971 which deals with the patented invention,
states that all the matters sworn to arose in
connection with the carrying out of his duties
and responsibilities as an employee of Canadian
Pacific Limited. He also states that he is satis
fied that his interests as an affiant are different
from the interests of Vapor Canada Limited,
the plaintiff, and Mr. John A. MacDonald, Rail-
quip Enterprises Ltd. and Vapor Corporation,
the defendants. He also states that he has no
previous experience in testifying in a litigious
matter and has no knowledge of what kind of
questioning is proper and what kind of ques
tioning is improper. He then concluded that he
is not satisfied that counsel for any of the
defendants could adequately represent his inter
ests and particularly he is not satisfied that
unless Mr. Barrigar, or some counsel of his
choosing, represents him upon the cross-exami
nation on his affidavit, his rights and interests
may he prejudiced to his injury.
Counsel for the plaintiff, at the hearing, took
the position that only parties to a proceeding
before the Court may be represented by counsel
and that witnesses cannot. He, however, agreed
when the Court pointed out that the rule is that
trials must be conducted in public unless, for
some special reason, the Court orders it to be
heard in camera. The present proceedings are
proceedings in open court as no order has been
issued by the Court authorizing them to be
heard in camera. This, however, does not mean
that because counsel can be present during the
cross-examination, as an officer of the Court
under section 11(3) of the Federal Court Act, or
as a mere spectator, he has carte blanche to
cross-examine the witness or object to any
question put to him. This, of course, is a func
tion which must be left to counsel for the par
ties only and no other counsel is entitled to
intervene unless, of course, the fundamental
rights of a witness are denied or would other
wise remain unprotected, in which case the
Canadian Bill of Rights may come into play.
This, however, should occur in exceptional
cases only and only when such fundamental
rights are infringed and, in my view, does not
entitle a witness to the services or the right of
counsel at all times. If such a practice were
allowed to develop, the adversary system,
which is the basis of all trials before our courts,
would rapidly deteriorate and the beneficial
effect of cross-examination in bringing out the
facts, would be diminished and even in some
cases be entirely lost 2 . I do not believe that
Parliament, when passing the Canadian Bill of
Rights intended to cut down or do away with
this effective means of sifting facts. The
Canadian Bill of Rights, in my view, deals with
the protection of fundamental rights and its
sections, including section 2(d), must be read
with this in mind. If a witness, by his evidence,
may place himself in a position where he may
self-criminate himself and be denied the consti
tutional safeguards which give him the protec
tion afforded by sections 4(1) and 5 of the
Canada Evidence Act whereby no answer given
by him may criminate him if he requests such
protection and other constitutional safeguards,
which do not apply to the present case such as,
for instance, the presumption of innocence and
the benefit of doubt, he may then be in need of
the assistance or help (the French text uses the
word secours) of counsel. When, on the other
hand, he is merely testifying on matters which
do not involve any incrimination, or other con
stitutional safeguards, he must answer the ques
tions he is asked and no counsel should inter
vene on his behalf.
It follows, I believe, that counsel for the
witness may attend the cross-examination of his
client on his affidavit and assist him by his
counsel. He may not, however, intervene in the
proceedings unless his client's personal funda
mental rights or interests under the Canadian
Bill of Rights may be affected which, I take it to
mean here, his right not to criminate himself (la
protection contre son propre témoignage) by the
evidence he may be called upon to give or his
`right to whatever constitutional safeguards
(toute garantie d'ordre constitutionnel) he is
entitled to. This should not, however, be con
strued as allowing counsel for the witness to
obstruct or to interfere unduly in the very
important process of cross-examination of the
witness. Should counsel conduct himself in
such a manner, the Court, upon a proper motion
will have no alternative but to deny such coun
sel the right to appear with, however, the liberty
to the witness to procure the services of other
counsel.
Counsel for the C.N.R. also appeared on this
motion and stated that he was in the same
position as counsel for the witness in that a
number of employees of the C.N.R. would be
called to testify. In such an event, the rights of
counsel to attend will be similar to those of
counsel of the present witness and shall be
limited in the same manner.
The above motion is dismissed. Costs shall be
in the cause.
[In Montreal—Ed.]
2 The manner in which witnesses may testify is set down
in articles 306 et seq. and particularly article 314 of the
Quebec Code of Civil Procedure which says that
314. When a party has ceased examining a witness he
has produced, any other party with opposing interests
may cross-examine such witness on all the facts in issue
and may also establish in any manner whatever grounds
he may have for objecting to such witness.
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.