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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A recent decision of the Federal Court provides detailed instructions for proceeding with a virtual trial.
- the technology to be used;
- document management;
- counsel preparation to ensure they have the required hardware and software;
- witness preparation with respect to hardware, software;
- testimony protocols, including camera positioning, access to documents, and who can be present;
- how documents are to be put to a witness;
- what is to happen if there is a loss of internet connection;
- how objections are to be raised and dealt with;
- how the principle of “open courts” is to be addressed;
- testing of the systems before trial;
- access to Zoom “chat” functions.
The Direction also includes a schedule entitled “Information for Witnesses” which summarizes part of the Direction, and is to be provided to witnesses in advance of their testimony.
The decision is not a “Practice Direction” applicable to all virtual trials. However, it is comprehensive and should be considered by the parties and the trial judge in a case conference prior to the commencement of any other trial.
Justice Lafreniere begins the Direction by setting out the balancing act that the courts must engage in when dealing with trials during these COVID times. “The Court recognizes the importance of reducing the spread of COVID-19 and prioritizes the health and safety of all court participants, including members of the Court, registry staff, counsel, witnesses, stenographers and interpreters. At the same time, the Court must balance the need to maintain judicial operations. Bearing in mind these important factors, it has been ordered that the hearing of this trial continue remotely via videoconference.”
The show must go on. Albeit with a very different script.
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I recently read an interesting article by Helene Love titled “Seniors on the Stand: Accommodating Older Witnesses in Adversarial Trials”, that explored the intersection of age and its effects on witness testimony in trials. Helene’s article considers whether the legal and procedural rules that have been developed to ensure that only the most reliable evidence is used in a trial may disproportionately be excluding evidence from seniors. The paper assessed the risks associated with aging, as well as the practical and legal issues related to aging witnesses, and offered suggestions to accommodate senior witnesses within our current legal framework. I will summarize some of the key considerations below.
The objective of a trial is to discover the truth. Examinations of witnesses under oath allow the trier of fact to test the reliability of witnesses, making examinations during trial a fundamental aspect of the modern day trial. Interestingly, the basis for requiring live testimony of witnesses dates back to the 16th and 17th century trials by jury, whereby jurors were not prevented from relying on untrustworthy sources of information, and abuses of power were common. In order to enhance the reliability of trials and control the quality of evidence, judges created the requirement for witnesses to provide evidence in person. The reliability of a witness is typically assessed by a judge based on a witness’s ability to observe, recall, and then recount and event in the courtroom.
Reports indicate that within the next 20 years, the number of Canadians aged 65 years or older will double, meaning that there will be more senior citizens involved in the justice system. Given the significant increase in older persons acting as witnesses, there are a number of ways that aging can impact a witness’s ability to provide evidence during a trial.
Some of the risks associated with aging include:
- Attrition – depending on the complexity of a case, it can take months or even years to finally reach a trial date, meaning that there are increased chances that an older witness, particularly those over 80 years old, have an increased chance of dying before having a chance to take the witness stand.
- Changes to the Sensory Organs and the Brain with Age – biological changes to sensory organs and the brain can result in a decrease in perceptual acuity and gaps in memory.
- Mobility Issues – Health Canada reports that by age 75, 29% of men and 38% of women report at least one physical limitation, making it more difficult to attend court in person, particularly if that appearance is extended over a period of time.
- Strokes and Dementia – Individuals aged over 65 are ten times more likely to have a stroke, and individuals who have had a stroke are more than twice as likely to develop dementia. Dementia can involve a range of symptoms, including physical limitations such as limb stiffness to the most commonly known type of dementia, Alzheimer’s Disease. Individuals with cognitive impairments would not be competent to testify in a trial.
This begs the question, how can the legal system accommodate senior witnesses while maintaining accuracy and reliability as top priorities in the pursuit of the truth? I will address some of the main solutions proposed in the civil context (although there were a number of great alternatives proposed in the criminal context that I encourage you to read).
- Expedited trial scheduling or proceeding by way of summary trial. Although not discussed in this article, another possibility in Ontario may be to request a case management judge who can determine whether the case should be heard in an expedited manner.
- Obtain witness evidence at an earlier point in time through discoveries, pre-trial examinations, or affidavit evidence to be relied on at a later date.
- Use the principled approach to hearsay. The rule against hearsay states that earlier statements made by others outside of court are presumptively inadmissible because they were not made under oath, in the presence of the trier of fact and/or tested by cross examination. However, hearsay statements can be admitted for their truth if they are sufficiently necessary and reliable, as outlined in the leading Supreme Court of Canada case of R v Khelawon, 2006 SCC 57
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 In the 1692 Salem Witch Trials, 14 women and 6 men were executed on charges of witchcraft based entirely on supernatural visions that indicated the presence of witchcraft, the reliability of which went untested during the trial.
Sometimes, you are added as a party to a proceeding when you don’t really want to be. In other cases, a proceeding is started, and you are not a party, but want to be. What can be done about this? Intervention.
Under Rule 13.01(1) of the Rules of Civil Procedure, a person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims:
- an interest in the subject matter of the proceeding;
- that the person may be adversely affected by a judgment in the proceeding, or
- that there exists between the proposed intervenor and one or more of the parties a question of law or fact in common with one or more of the questions in issue in the proceeding.
Rule 13.01(2) adds another consideration. The court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding.
Intervention was considered in the decision of Arnold v. Arnold, 2019 ONSC 3679. There, the proceeding involved a Power of Attorney dispute between 3 of the incapable person’s children. The issue was whether a 2011 Power of Attorney, which appointed children 1, 2 and 3 as attorneys, governed or whether a 2019 Power of Attorney, which only appointed children 2 and 3 as attorneys governed.
The proposed intervenor was child 4. He was not named as attorney in any of the Powers of Attorney, and was not a party to the proceeding. Child 4 was diagnosed with schizophrenia and lived in his mother’s, the incapable person’s, house. He was receiving support from her. He sought to intervene to ensure that his needs were protected.
The court considered the criteria for intervening, and refused to allow child 4 to intervene.
As to the first criteria, the court found that essence of the application was who was to be responsible for the management of mother’s property, not how it was to be managed. While child 4 may have an interest in how the property was being managed, he had not genuine interest in who.
Regarding the second criteria, child 4 acknowledged that he was not adversely affected by the management of mother’s property, as long as the responsible person fulfills that role properly. The court added that child 4 would benefit from the determination of the question raised in the proceeding, as he would then know with whom he is dealing.
With respect to the third criteria, child 4 argued that he had potential claims as against his father’s estate and his mother for child support. The court found that the questions raised in those potential proceedings were not the same as the questions raised in the existing proceeding regarding who was to care for mother. Further, child 4’s lack of intervenor status would not prejudice his claims.
The court also found that allowing child 4 to intervene would result in undue delay and prejudice. The proceeding was already being expedited, and was scheduled to be heard two weeks after child 4’s motion to intervene. Allowing child 4 to intervene would likely delay the proceeding. Had child 4 moved to intervene sooner, this might not have been the case.
Costs were awarded against child 4. However, due to his being on ODSP, costs were awarded against child 4 in the amount of $4,000 to each of the other groups of litigants. Payment was deferred until child 4 received his share, if any, of his mother’s estate.
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In the Ontario Court of Appeal decision of R. v. Nurse, 2019 ONCA 260, the gestures of a dying man were relied upon to support a murder conviction.
In that case, N owed rent money to his landlord, K. Rather than pay, N lured K to his home, where K was repeatedly and viciously stabbed.
N denied that he was involved in the stabbing, and claimed that another unknown person had stabbed K.
While K was being treated by police on the scene, N approached K and the police. K, who was in obvious and extreme distress, pointed to his stomach stab wounds, and then pointed to N.
The trial judge found that the gesture fell within the “dying declaration” exception to the hearsay rule. The Court of Appeal agreed. They also agreed that evidence of the gesture was admissible under the principled approach to hearsay.
A dying declaration is usually a verbal statement or utterance. However, a gesture can also convey meaning, and may be considered to be a statement or utterance to which the dying declaration exception to the hearsay rule applies.
With respect to the dying declaration exception to the hearsay rule, the Court of Appeal said that the exception could be traced back to the 1789 decision of The King v. Woodcock. There, the court stated:
Now the general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.
The trial judge was therefore correct in instructing the jury to consider the evidence of whether K was pointing to N, and if he was, what he meant by this.
Another ground of appeal was with respect to incriminating messages retrieved from N’s cell phone. When N was first arrested, his phone was seized. An analysis of the data on the phone revealed only limited interaction between N and his co-accused. However, about a year later, the analysis software was updated, and a further analysis of the phone revealed the plan to kill K. N argued that the second analysis was a fresh search that was not authorized by the first search warrant. This argument was rejected.
Have a great weekend.
As spring leans toward summer, many begin to think about spending time sitting on a dock. While sitting on a dock (or a patio, if that is more your thing), consider the recent decision of Krieser v. Garber,  O.J. No. 1619.
In 2012, the Garbers decided to build a dock attached to their property on Lake Simcoe. They retained Nealon Wood Products to do so. It must have been a nice dock. The cost was $150,000.
Unfortunately, the dock was not built according to Ministry of Natural Resources-approved plans. It was built 17 feet to the west of where it was supposed to be. Boulders placed around the dock for ice protection extended over the projected lot line of Garbers’ neighbour, the Kriesers. While the placement of the dock improved the view of the Garbers, it did not improve the Kriesers’ view. Additionally, it interfered with the Kriesers’ ability to access their own property by boat.
At trial, the court found that injunctive relief was appropriate. The Garbers were ordered to remove the dock from its current location, and repair the lake bed. In addition, the Garbers and Nealon were ordered to pay the Kriesers $100,000 in punitive damages.
On the issue of costs, reported here, the court awarded the Plaintiff costs of $518,000 for the two week trial, payable by the Garbers and Nealon, jointly and severally. The Garbers were ordered to pay an additional $80,000 for costs “thrown away” in relation to an earlier adjournment of the trial.
In awarding costs, the court noted that the Plaintiff had made a very reasonable offer to settle. The offer was, according to the judge, “the most generous offer to settle I have ever seen”.
In their offer, the Kriesers offered to pay for all of the costs of having the dock and the protective boulders moved. It was estimated that this costs could be in the $150,000 range. This “with prejudice” offer was relied on, in part, to support an award of substantial indemnity costs. It also was a factor in the award of punitive damages.
Thanks for reading. Have a great weekend.
Medical records are frequently key evidence in estate disputes. Often, a testamentary document or inter vivos transaction is challenged on the basis that the deceased lacked testamentary capacity or the mental capacity to make a valid gift.
The British Columbia Supreme Court recently reviewed the issue of admissibility of medical records within the context of a will challenge. The parties propounding the last will asserted that the deceased’s medical records were inadmissible on the basis that (1) the parties challenging the will were attempting to admit the records for the truth of their contents, (2) the records included third party statements from family members, which was suggested to constitute double hearsay evidence, and (3) the records were entirely inadmissible because they were not relevant, none of them being within weeks of the date of execution of the challenged will.
In Re Singh Estate, 2019 BCSC 272, the estate trustees named in the deceased’s will executed in 2013 only learned of the existence of a subsequent will executed in 2016 after they provided notice to the beneficiaries of the estate that they intended to apply for probate in respect of the 2013 will. The 2016 will disinherited two of the deceased’s eight children (including one of the two adult children named as estate trustee in the 2013 will) on the basis that they had received “their share” in their mother’s estate from the predeceasing husband’s estate. Between the dates of execution of the 2013 and 2016 wills, the deceased had suffered a bad fall and allegedly experienced delusions and had otherwise become forgetful and confused.
At trial, medical records are typically admitted under the business records exemption of the Evidence Act (in Ontario, section 35). Justice MacDonald acknowledged this general treatment of medical evidence, citing the Supreme Court of Canada (at para 48):
While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares[ v Venner,  SCR 608]. The Supreme Court of Canada held at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.
Subsequent case law cited by the Court addressed the second objection of the parties propounding the will, which provided that the observations that a medical practitioner has a duty to record in the ordinary course of business (including those involving third parties) are generally admissible (Cambie Surgeries Corporation v British Columbia (Attorney General), 2016 BCSC 1896). Lastly, the Court considered the issue of relevance of the medical records and found that evidence relating to the mental health before and after the making of a will can be relevant in supporting an inference of capacity at the actual time of execution of the will (Laszlo v Lawton, 2013 BCSC 305).
After finding the medical records to be admissible as evidence of the deceased’s mental capacity (and in consideration of all of the available evidence), the Court declared the 2016 will to be invalid on the basis of lack of testamentary capacity.
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On March 27, 2014, I blogged on the issue of settling litigation, but leaving the issue of costs to the court. I noted the decision of Dhillon v. Dhillon Estate, 2009 CanLII 58607 (ON SC), where the matter was settled on the eve of trial, but the parties left the issue of costs to the court. The court declined to make any award of costs, as the factors to be considered in awarding costs had not been determined by the court.
In the decision of Koster v. Koster, 2018 ONSC 6896 (CanLII) released November 19, 2018, the issue arose again. A motion was brought for summary judgment, but as the court determined that it could not decide the question without a trial, the motion was dismissed. The parties then went to mediation, where the matter was settled, except for the issue of costs. Pursuant to the settlement, the entitlement and quantum of costs was to be determined by the court.
There, the court declined to make any costs award. The court referred to the Dhillon decision.
In refusing to award costs, the court stated:
By definition, a settlement is a compromise between the litigants’ positions. Also by definition, it is agreeable to all the parties. It is impossible to say with accuracy why any particular settlement was acceptable to one or other of the parties. Put another way, an award of costs is typically grounded in findings by the court as to the parties’ respective success and the impact of their actions during litigation, which are findings not made in the event of a settlement.
The court also cited from the decision in Waterloo North Condominium Corporation No. 161 v. Redmond, 2017 ONSC 1304 (CanLII). There too, the court declined to determine liability for costs following a settlement. There, the court stated:
Moreover to embark upon a full examination and adjudication of the merits of the parties’ respective substantive claims and defences for the sole purpose of determining the question of costs, when those substantive issues have been settled by the parties, would run counter to the principle in McLellan that costs are incident to a determination of the rights of the parties and are not to be made themselves the subject matter of the litigation.
As I concluded in my March 2014 blog, settling but leaving the issue of costs to the court should be avoided. Courts will be reluctant to relitigate the entire matter in order to make a determination as to who was right and who was wrong and therefore entitled to or liable for costs.
Have a great weekend.
King Pyrrhus of Epirus defeated the Romans at the Battle of Heraclea in 280 BC and the Battle of Asculum in 279 BC. He went on to lose the Pyrric War. Of the battles won by Pyrrus, Plutarch has quoted Pyrrhus as saying “If we are victorious in one more battle with the Romans, we shall be utterly ruined.”
The same observation can be made of some civil litigation.
VB was injured while running on an indoor track at McMaster University. He sued the other runner, the running club, the running coach and the university. He and his family members claimed damages of $1.1m, plus interest and costs.
After a 13 day trial, the jury found that VB and his family suffered damages totalling $104,885. The runner and the university were not found liable. The coach and the running club were found 60% liable, and VB was found 40% contributorily negligent. Thus, VB and family were to recover approximately $60,000.
Then came the decision on costs.
Offers to settle were made before trial. Collectively from the defendants, the offer totalled $180,000. The plaintiffs’ offer was said to be for $1,216,550.
The judge in his costs reasons noted that as the trial was a jury trial, he could have “blithely sat back and let the costs clock tick away”. The judge didn’t do this. Rather, the judge twice suggested that the parties agree to a midtrial pretrial with another judge, to see if the matter could be settled. The plaintiff refused. “That kind of opportunity can be fruitful as counsel have seen how the case has evolved and with a lot of things in life, how its evolution was different from that which was expected. … The continuation of the trial did not make economic sense in terms of what could be gained by the plaintiff in the face of mounting costs for all parties. By continuing the trial, the likelihood, if any, amount being awarded being a ‘Pyrrhic’ victory loomed large.”
And Pyrrhic was the victory.
The plaintiffs received a judgment of $60,000. They were awarded costs against the running club and coach of $43,108. The plaintiffs were ordered to pay costs to the university of $95,000, and to the running club and coach of $69,156.
In addition, the plaintiffs may have had to pay their own lawyers.
Costs of a proceeding must always be front of mind. Further, the impact of reasonable offers to settle must be considered: both when making offers and when considering offers from the other side.
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Last night, I attended an advance screening of RBG, a documentary focusing on the career of Justice Ruth Bader Ginsburg, a current Associate Justice of the Supreme Court of the United States. Justice Ginsburg is a long-time social rights activist and advocate well known for her work in promoting gender equality on both sides of the bench.
More recently, Justice Ginsburg has gained notoriety for frequent dissenting opinions within the context of a primarily conservative judiciary. While a dissent is, by definition, “a disagreement with [the] majority decision” (Black’s Law Dictionary) that becomes law, one should not underestimate the value of a strong dissent over time.
At provincial appellate courts in Canada, a strong dissent may be of great assistance in preparing an application seeking leave to appeal to the Supreme Court, as well as at the appeal stage if leave is granted. Dissenting opinions of the Supreme Court of Canada have been referred to as the voice of the future, with prophetic potential.
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