In a recent decision from the British Columbia Court of Appeal, Mayer v Mayer Estate, 2020 BCCA 282, the court considered an application to reopen a trial to admit new evidence or to have a mistrial declared (the “post-trial application”). The post-trial application arose as a result of an email between the respondent’s daughter-in-law (who had been assisting the respondent with the litigation) and the respondent’s counsel. The appellant had obtained the email from the deceased’s computer. The deceased and the respondent had shared an email address, and when the appellant connected the computer to the internet some emails were downloaded from the shared account, including the email in question. The appellant took the position that the email that she had obtained impugned the respondent’s credibility by contradicting evidence she had given in the previous proceedings. The post-trial application was dismissed, and the appellant appealed the decision.
The Court of Appeal dealt with the question of the email fairly briefly. The post-trial application judge had concluded that the email was a communication that was subject to solicitor-client privilege. The Court of Appeal appears to have accepted that finding.
The content of the email is not specifically set out in the decision, but appears to have related to the purpose for which the respondent had made certain transfers to the deceased. It appears that, notwithstanding the finding that the email was privileged, the court still considered whether the contents of the email did impact the respondent’s credibility.
The respondent swore affidavit evidence in the original proceedings that she had made two transfers to the deceased to assist him in paying some tax debts. The email apparently indicated that at the time the respondent swore her affidavit, she knew that the deceased did not, in fact, have any tax debt. The post-trial application judge’s analysis stated that it appeared the deceased may have been untruthful with the respondent at the time the transfers were made, and probably used the funds for something other than tax debts, which he did not have. However, the respondent’s evidence in this regard was not a lie, because at the time of the transfer, all she knew was what the deceased had told her, namely that he intended to use the funds to pay his tax debts.
Additionally, the post-trial application judge had already addressed minor inconsistencies of this nature in the respondent’s evidence in his reasons from the original proceeding, noting that they were not consequential and fully explained by the respondent.
The Court of Appeal dismissed the appeal. In making this decision, the Court of Appeal notes that “it is apparent that the appellant is seeking largely to re-argue the case as originally tried before Justice Crossin, particularly as to credibility, which is not open to her.”
The Court of Appeal also awarded the respondent special costs (on a higher scale), based on its conclusion that the very serious allegations made and maintained by the appellant against the respondent constituted “sufficiently reprehensible conduct to merit rebuke in the form of an award of special costs”.
Although scenarios may exist where new evidence could have such an impact on credibility that it would warrant reopening a trial, one should be careful to fully assess the nature and strength of such evidence. The award of special costs also serves as further caution that serious allegations such as fraud and perjury should be made very selectively, when they are appropriate and fully supported by the evidence.
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An Order excluding all the parties from each other’s examinations for discovery was made in an estate matter before the Hon. Justice Myers. In Boodhoo v. Persaud, the Plaintiff is one of the Deceased’s surviving daughters, while the Defendants are the Deceased’s brother and sister-in-law. During the initial stages of litigation, the Defendant Uncle was removed as the Estate Trustee of the Boodhoo Estate in 2012 and he was ordered to account for the duration of his administration. By the time of the present hearing before Justice Myers, the accounting was still deficient. At the same time, the Plaintiff was also pursuing allegations against her uncle’s wife for her involvement in the administration of the Estate.
In applying the test for the exclusion of witnesses in Lazar v. TD General Insurance Company, 2017 ONSC 1242, Justice Myers found that “all of the parties have cause to be worried that others will tailor their evidence based upon what they hear at examinations for discovery”. Where the credibility of the parties appears to be crucial, especially in the absence of documentary records, his Honour ordered that:
“Counsel for the parties and anyone who attends discoveries with them shall not disclose any evidence given by a party on examination for discovery to any other party in advance of the completion of all of their respective examinations by answering all undertakings and refusals (if any). Nor shall any counsel or their staff provide any transcripts or summaries of transcripts of any of the examinations for discovery to any of the parties prior to the completion of all of their respective examinations by answering all undertakings and refusals (if any).”
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One of the purposes of having viva voce testimony at trial is so that the trier of fact is able to determine a witness’s credibility and attach the appropriate weight to his/her evidence.
While the determination of a person’s credibility may appear to be a rather personal assessment, according to Madam Justice D.A. Wilson, this is not case at law:
 As I noted in Rider v. Grant, 2015 ONSC 5456 (CanLII) at para. 90:
In deciding issues of credibility, it is not simply a matter of accepting the evidence of one party over another based on how the witness performed in the witness box. Rather, “the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” Faryna v. Chorny,  2 D.L.R. 354 (B.C.C.A.)
Moreover, in the case of 1483677 Ontario Ltd. v. Howard, 2015 ONSC 6217, as excerpted above, Justice Wilson did not find a particular witness to be worthy of belief where,
- there were discrepancies between the witness’s testimony at trial and his evidence during an examination for discovery; and
- the witness was unable to provide a reasonable explanation for the discrepancies between his testimony and the documentary evidence, such as e-mails.
On the other hand, a different witness who responded to questions directly, and without hesitation, even if his answer may have an negative impact on his case was found to be “forthright” and “honest”. The objectivity and fairness of a witness’ testimony was also preferred.
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This week on Hull on Estates, Rick and Sean discuss evidence issues in estate matters when a main party is deceased. They reference "Burns Estate and Mellon"; a 2000 Court of Appeal Case cited in 34 Estates and Trusts Reports, 2nd Edition, p.175.