I had the pleasure of recently attending the Six-Minute Estates Lawyer 2022 which was offered by the Law Society of Ontario. Andrea Hill of Turkstra Mazza Associates and our own Ian Hull co-chaired this program. As its name implies, this program is structured to provide six-minute presentations on various estates law topics. This year, topics included: joint asset planning, gifts mortis causa, limitation periods in estate and passing of accounts, guardianship, dealing with insolvent estates and much more. I would like to highlight a presentation on the corroboration of evidence as it is a foundational concept that bears directly on estate litigation.

In his presentation on the Corroboration of Evidence in Estate Matters, Brendan Donovan of Donovan Kochman LLP, reminds us of the importance of sections 13 and 14 of the Evidence Act, R.S.O 1990, c. E. 23 (the “Evidence Act”). Both sections create an exception to the common law rule that the evidence of one witness may be sufficient to meet the burden of proof. Instead, an opposite or interested party in an action by or against heirs, next of kin, executors, administrators, or the deceased’s assigns is obligated to corroborate their evidence of any matter occurring before the deceased’s death, with some other material evidence. This same obligation arises in the context of an action by or against an incapable person. The requirement for corroboration of evidence in these contexts is intended to counterbalance the inherent disadvantage of a deceased person who cannot provide evidence due to their non-existence, and of an incapable person who may not be in a position to provide evidence due to their incapacity.

Corroborative evidence is “evidence from a source extraneous to the witness whose evidence is to be corroborated, that is relevant to a material fact in issue and that tends to show that the witness whose evidence needs corroboration is telling the truth” (as stated in Pepe v State Farm Mutual Automobile Insurance Company, 2011 ONCA 341). The term “extraneous” does not require that the person providing corroborative evidence is neutral or non-partisan. Also, corroborative evidence does not need to be directed to any particular fact or part of the evidence, and does not need to confirm all of the particulars of the evidence in order to be “material”. However, one must review the case law to determine what is sufficient corroborative evidence.

The Ontario Court of Appeal outlined a roadmap for the application of section 13 of the Evidence Act in Paquette v Chubb, [1988] OJ No. 1355:

1. Corroborative evidence must be independent of the evidence of an opposite or interested party, which shows or tends to show that the opposite or interested party is speaking truthfully on a material issue in the proceeding;
2. Corroborative evidence may be in the form of direct evidence, circumstantial evidence or a combination of both;
3. Where corroborative evidence is circumstantial evidence, it must be independent evidence which renders it probable that the evidence of such party, upon a material issue, is true;
4. Several pieces of circumstantial evidence, taken together, may corroborate the evidence of an opposite or interested party so long as this evidence, cumulatively, meets the test for corroboration;
5. The trial judge is to determine which item(s) of evidence bear corroborative potential; and
6. In determining whether evidence bears corroborative potential, that evidence must be viewed in the context of the entire evidence adduced without reference to any explanation which may be offered on behalf of the deceased’s representatives (as this is a matter for the trier of fact to consider separate from the corroborative potential of the evidence).

Corroborative evidence is an important feature of estate litigation, and certainly one that invites creative thinking and strategizing in reviewing the facts and gathering evidence. A careful review of the case law will provide insight on the scope and types of corroborative evidence that may win the day.

Thanks for reading,

Ashley Naipaul