When can someone who is not a party to the litigation be examined? The Court may grant leave to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
Pursuant to Rule 31.10 of the Rules of Civil Procedure, such an order can be made if the Court is satisfied that:
a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
c) the examination will not,
i. unduly delay the commencement of the trial of the action,
ii. entail unreasonable expense for other parties, or
iii. result in unfairness to the person the moving party seeks to examine.
In Ryndych v. Hamurak, 1999 Carswellont 4061,  O.J. No. 4718, Molloy J. allowed the examination of the minister who performed a marriage ceremony between the defendant and the deceased, who died intestate. The plaintiffs had attempted to interview the minister but she refused to answer questions. The validity of the marriage was central to the case and it was very likely that the minister had information relevant to the issues in this action that was not available from any party. The Court commented that it would be unfair to require the plaintiffs to go to trial without having the opportunity to examine the minister who officiated at the wedding.
Further, the Court found that it was not necessary for the plaintiffs to serve their notice of motion on the non-party they sought to examine. The intention of the Rules was not to require service of the notice of motion on the non-party. The position of the non-party was protected under the Rules because a person affected by an order obtained without notice was entitled to bring a motion to have the order set aside. There was also no requirement that plaintiffs examine the defendant prior to examining the non-party.
Sharon Davis – Click here for more information on Sharon Davis.
In a recent article published in STEP’s Trust Quarterly Review, Audrey Giles profiles technological advances in the electronic recognition of handwriting. For example, The Center of Excellence for Document Analysis and Recognition (CEDAR) at the University at Buffalo, State University of New York has developed electronic processes for the assessment of handwriting. While such systems are funded by governments primarily concerned about white collar crime, forensic document examination is of great assistance to the estate litigator especially when trying to prove a fraud.
The difficulty is that, as Giles notes, while handwriting analysis can entail the comparison of hundreds of characteristics such as spacing between characters and the slope of letters, a signature is a very small sample which provides limited points of comparison for the document examiner. To further compound the challenge to the document examiner, all signatures demonstrate some degree of natural variation and different people will exhibit different degrees of variation in their signature. It is for this reason that the forensic document examiner will want as many samples of a true signature as possible before rendering an expert opinion.
The objective of the forensic document examiner is to provide opinion evidence for the consideration of the trier of fact as to whether a signature (on a Will for example) is that of the testator or a forgery. One tool in the arsenal of the examiner is the Video Spectral Comparator which can reveal pencil guide lines or impressions that may have been used by the forger in an attempt to duplicate the testator’s signature. Such attempts at forgery are remarkably crude when considered in the context of advances in scanners and software which present new challenges to those charged with trying to detect a fraud.
David Morgan Smith – Click here for more information on David Smith.
When is a potential witness incapable of being examined? Price J. examined this issue in Vokes Estate v. Palmer, 2009 CanLII 70132 (ON S.C.) in the context of a motion to compel a party to attend an examination under oath, where that party’s solicitor had earlier refused to allow him to take the oath or give a solemn affirmation.
Ultimately finding the witness capable of taking an oath and giving evidence, Price J. reviewed the authorities. The leading case of McGowan et al v. Haslehurst et al. (1977), 17 O.R. (2d) 440 (H.C.J.) states that parties should be able to avoid attendance at examinations for discovery on the basis of unsoundness of mind only in the clearest of cases. The onus of proof of unsoundness is on the party seeking to avoid the examination (Barnes v. Kirk,  2 O.R. 213 (ON C.A.).
Price J. also applied the principles applicable to testing the competency of witnesses giving evidence at trial. Under section 18 of Ontario’s Evidence Act, any person is presumed competent to give evidence, and therefore the onus is on the person to establish incapacity. The presiding judge must examine the proposed witness. Section 16(1) of the Canada Evidence Act prescribes questions for such an inquiry, namely: whether the witness understands the nature of an oath or solemn affirmation, and whether the witness is able to communicate evidence.
As a sidenote to this decision, Price J. reviewed and rejected a capacity assessment that found the potential witness incapable of giving evidence.
A review of this decision will be helpful to any practitioner dealing with questions of a potential witness’s capacity to give evidence.
Have a great week,
Christopher M.B. Graham – Click here for more information on Chris Graham.
You would expect that a minor or a party to a proceeding who is declared mentally incapable to manage his/her property and/or personal care (under sections 6 and 45 of the Substitute Decisions Act) would not be able to or required to participate in the litigation. However, this is not so.
Pursuant to Rule 31.03 (5)(b) of the Rules of Civil Procedure, a party under “disability” (defined to include minors and mentally incapable adults) can be examined for discovery if he/she is "competent to give evidence".
The onus of establishing incompetence rests on the party alleging it: Barnes v. Kirk,  2 O.R. 213 (C.A.).
Application of the Rule has led to varying decisions and approaches, a few of which I note below.
· a party under disability may be examined if competent to give evidence subject to the discretion of the court to impose limits where the examination would be oppressive, vexatious or unnecessary: Nyilas v. Janos (1985), 50 C.P.C. 91 (Ont. Master);
· an appointment for discovery should be struck out on the grounds of unsoundness of mind only in the clearest cases – the preferable course is to allow the trial judge to rule on the admissibility of the examination and the credibility of the witness: McGowan v. Haslehurst (1977), 17 O.R. (2d) 440 (H.C.);
· the right to examine a minor for discovery is not absolute – the court should interview the child before exercising its discretion in that regard: Bennett v. Hartemink (1983), 42 C.P.C. 33 (Ont. H.C.);
· a defendant was denied the right to examine a ten-year-old plaintiff where it was found that the examination would result in psychological herm to the child: Kidd v. Lake (1998), 42 O.R. (3d) 312 (Gen. Div.); and
· the court permitted the examination of two plaintiffs (ages 16 and 11) notwithstanding evidence that it might cause serious psychological damage: Nyilas v. Janos, supra.
Have a great day,
This week on Hull on Estates, Diane and Craig discuss what to consider when dealing with experts and expert reports in cross examination.