In the recent decision of Rudin-Brown et al v. Brown, 2021 ONSC 3366, Justice H. J. Williams discusses the admissibility of audio recordings.
This case involves Carolyn Brown, who is 91 years old, Gordon Brown (Carolyn’s son who lives with her), Christina (“Missy”) Rudin-Brown (Carolyn’s daughter) and Jeanne Brown (Carolyn’s sister-in-law). Around 2008, Missy noticed Carolyn was having some memory problems which became more obvious around 2012. Gordon maintains that other than occasional memory lapses, Carolyn was fine until June 2017 when her memory declined suddenly and noticeably.
In September 2016, Carolyn signed powers of attorney appointing Gordon as her attorney for property and personal care. The 2016 powers of attorney replaced her 2009 powers of attorney which appointed Jeanne as her attorney for property, and Missy and Gordon as her attorneys for personal care. Carolyn also signed a new will in September 2016 appointing Gordon as the executor and the beneficiary of the residue of her estate, replacing her 2009 Will which appointed Jeanne as the executor and divided the residue of her estate equally among Gordon, Missy and Zachary Brown (the son of Carolyn’s late daughter, Sandra).
There were two competing applications before the court for the guardianship of Carolyn – one was brought by Missy and Jeanne and the other by Gordon. These applications were consolidated by Justice Kershman and a trial was ordered.
Although there were a few issues dealt with in this trial, for the purposes of this blog, I will focus on the court’s decision on the issue of whether the recordings of Carolyn’s conversations made by Gordon were admissible and if so, how they may be used as evidence.
Gordon sought to introduce into evidence 15 recordings of Carolyn’s telephone conversations he made in 2017. Also, Missy and Jeanne tendered one of Gordon’s recordings and an excerpt from another. In deciding whether these recordings were admissible, the court considered many factors including the origin of the recordings, whether Carolyn knew and fully approved of these recordings, as well as the probative value and prejudicial effect of admitting these recordings into evidence.
Among other things, Justice H. J. Williams clearly noted that “the manner in which evidence is obtained, no matter how improper or illegal, is not an impediment to its admission at common law”. It was important for the court to consider and weigh the prejudicial effect of the evidence against the probative value. Specially, the court noted that:
“The court nonetheless maintains a general exclusionary discretion to exclude otherwise admissible evidence if the prejudicial effect outweighs the probative value. Evidence may be excluded under this cost-benefit analysis if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time to present the evidence that is not commensurate with its value, or if it is misleading in that its effect on the trier of fact is out of proportion to its reliability as probative material.”
The court found Missy’s side of the recorded conversations to be more probative than prejudicial and the conversations between Gordon and Carolyn to be highly probative and therefore admitted. The court had concerns regarding Carolyn’s side of the recorded conversations, particularly because Carolyn was not able to testify. The court discussed the fact that Gordon only produced the recordings he thought were relevant as well as considered whether Carolyn’s side of the conversations truly represented Carolyn’s views and state of mind.
Importantly, the court did not accept Gordon’s evidence that Carolyn knew he was recording her and that she had authorized him to do so. The court noted that during a conversation, Carolyn did not want to speak about something with “you know who around”, referring to Gordon. If she had known that all her conversations were being recorded, Gordon being around would have been irrelevant. As a result, the court found that “Carolyn did not agree to have her conversations recorded, or, if she did, she did not appreciate what she was agreeing to.”
Interestingly, the court noted that although “surreptitious audio and video recordings should be strongly discouraged by the courts” because they foster distrust and have a toxic effect on future relationships, if the recordings and the evidence that flowed from them were excluded in this case, the court would be “left to decide the case based on a record [the court knows] to be incomplete.”
On the issue of the audio recordings, Justice H. J. Williams “with some reluctance, concluded that the recordings are admissible” and the court “will place little weight on Carolyn’s side of the conversations.”
For a more in-depth discussion on this case and admissibility of audio recordings, please listen to last week’s podcast on Hull on Estates.
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A party has a prima facie right to test the evidence given by a witness through cross-examination. This is a critical means to building a body of evidence to support one’s case. However, if a party does not make adequate efforts to avail themselves of the opportunity to cross-examine, they may lose this benefit. The Honourable Madam Justice Sylvia Corthorn of the Ontario Superior Court of Justice addresses this issue in her recent decision in Clayton v. Clayton et al., 2020 ONSC 7592.
Clayton involves an application to remove the trustees of two trusts that form part of an estate. The applicant in this case brought a motion for an order striking the affidavit sworn by one of the respondents and trustees, Shirley. Pursuant to a notice of cross-examination, Shirley was to be cross-examined on her affidavit on November 22, 2019. However, prior to the commencement of cross-examinations, Shirley’s counsel advised that she would not be produced for cross-examination due to concerns about her mental capacity. Counsel agreed that an assessment of Shirley’s capacity to be cross-examined was necessary and consequently, she was not cross-examined. The applicant did not obtain a certificate of non-attendance with respect to Shirley’s cross-examination and no notice to cross-examine Shirley on a subsequent date was served.
The geriatric assessment of Shirley was scheduled for May 2020 and then postponed to the fall of 2020 due to COVID-19. There was no evidence before the court as to whether this assessment was ever done. The hearing of the application was likewise delayed as a result of the pandemic. The application is currently scheduled to be heard in January 2021.
At no point after November 2019 did the applicant pursue cross-examination of Shirley. When the application returned to court in September 2020, the applicant took the position that Shirley’s affidavit cannot be used on the application in light of her supposed incapacity and the respondents’ alleged refusal to permit cross-examination. The applicant then brought a motion requesting that the affidavit be struck in its entirety on the grounds that the admission of this evidence would be prejudicial to the fairness of the hearing and constitute an abuse of process.
Justice Corthorn dismissed the applicant’s motion. She found that he did not take any steps, prior to bringing this motion, to seek the assistance of the court in determining the steps required to address concerns with respect to Shirley’s affidavit and whether she could be cross-examined. She also considered that the application had already been adjourned three times and that the applicant had not requested a further adjournment to permit cross-examination of Shirley. Justice Corthorn affirmed that the court has discretion to prevent or limit cross-examination where it is in the interests of justice to do so. She decided that in this case, it is fair to both the process and the parties to admit Shirley’s affidavit and leave the issue of the weight to be given to her evidence to be determined with the benefit of the complete record. The parties would also have the opportunity to make submissions with respect to the weight to be given to Shirley’s evidence, and this will permit the court to control the process and avoid an abuse of it.
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In today’s podcast, Natalia Angelini and Kira Domratchev discuss the Ontario Court of Appeal decision of Dujardin v Dujardin, 2018 ONCA 597, and the admissibility of an expert’s evidence with respect to the deceased’s capacity.
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