Tag: admissibility of hearsay evidence
In Drummond v Cadillac Fairview, the Court of Appeal for Ontario considered the issue of the admissibility of hearsay evidence on a motion for summary judgment. The facts in Drummond are quite simple. The plaintiff tripped on a skateboard while shopping at the Fairview Mall in Toronto, owned by the defendant. The plaintiff brought an action for occupier’s liability, supported by an affidavit sworn by him. The defendant, Cadillac Fairview, responded by bringing a motion for summary judgment.
At the hearing of the motion, not only did the judge dismiss Cadillac Fairview’s motion for summary judgment, but it granted summary judgment in favour of the plaintiff (a remedy that the plaintiff was not seeking). Cadillac Fairview appealed and was successful at the Court of Appeal.
In granting the appeal, the Court identified serious concerns regarding the hearsay evidence relied on by the plaintiff in responding to Cadillac Fairview’s summary judgment motion. The plaintiff’s responding affidavit relied heavily on statements purportedly made by his fiancée and his daughter, and two unidentified staff members working at the mall. The trial judge agreed that these statements were hearsay but admitted them nonetheless under the business records exception to the hearsay rule and under Rule 20.02 of the Rules of Civil Procedure.
The Court of Appeal rejected the admission of the hearsay statements. While the Court agreed that Rule 20.02 permitted the admission of affidavit evidence “made on information and belief”, the Court also noted that the Rule permits a trier of fact to draw an adverse inference if a party with personal knowledge of contested facts does not give evidence.
The Court of Appeal found that the information relayed by the plaintiff from his fiancée and his daughter “went to the heart” of his claim. The plaintiff’s failure to have his fiancée or daughter swear their own affidavits with respect to the key facts at issue caused the Court to have considerable reservations about admitting their evidence. The Court of Appeal ultimately held that the finding of liability against Cadillac Fairview was based on an “erroneous admission of hearsay evidence on key, contested issues” and reversed the decision.
On motions for summary judgment, courts will expect the parties to put their best foot forward, including the nature and source of relevant evidence. As can be seen in this case, a party’s failure to do so can have serious consequences.
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In Modonese v. Delac Estate, 2011 BCSC 82 (CanLII) the deceased left her property to her two children equally in her Will but the bulk of her estate consisted of her house, which was transferred into joint tenancy with her son. The son and his wife and children had always lived with the mother in her home except for a 3-year period after an episode of violence by the son against the deceased. At the end of the day, the son was not a credible witness and the Court accepted evidence that the deceased intended her estate to be shared equally between her son and her daughter.
Mondonese v. Delac Estate contains some useful discussion (below) regarding the “principled approach” to admissibility of hearsay evidence and the factors to be considered in determining whether there was undue influence.
To be admissible, hearsay evidence must be:
a) Necessary – the only available means of putting that evidence before the Court; and
b) Reliable – there is no real concern about the truth of the statement because of the circumstances in which it was made and it can be sufficiently tested by means other than cross examination.
The two instances where the question of undue influence arises are:
a) Where the gift was the result of influence expressly used by the donee for the purpose; and
b) Where the relations between the donor and donee around the time of the gift were such as to raise a presumption that the donee had influence over the donor.
To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own "full, free and informed thought" in that:
a) No actual influence was used or there was no opportunity to influence the donor;
b) The donor had independent legal advice or the opportunity to obtain it;
c) The donor had the ability to resist any such influence; and
d) The donor knew and appreciated what she was doing.
Other relevant factors include undue delay in prosecuting the claim, acquiescence or confirmation by the deceased, and the magnitude of the benefit or disadvantage.
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