Some Evidence Cases from 2009

As is usually the case, appellate courts gave little express consideration to evidence issues in the civil context. Evidence issues reach appellate review mainly in criminal cases. Application of criminal rulings on evidence in a civil context is difficult; however in some circumstances such application is necessary. With that caution, here are some of the cases from 2009 useful for civil litigators.

R. v. Abbey, 2009 ONCA 624
This case significantly changes the test for admissibility of expert evidence. The court holds:

76 Using these criteria, I suggest a two-step process for determining admissibility. First, the part proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. For example, that part must show that the proposed witness is qualified to give the relevant opinion. Second, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This “gatekeeper” component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence.

Harrop v. Harrop, 252 OAC 236
Here the Divisional Court ruled in general that determinations as to the admission of evidence at trial ought not be made by a motions judge before trial.

Sera GmbH v. Sera Aguristik, 2009 Carswell Ont. 77
This case is a good source for the principle that privilege is waived accidentally. The inadvertent disclosure of privileged document does not amount to waiver of privilege.

Kavanagh v. Peel Mutual, 2009 Carswell Ont. 6377
For litigation privilege to apply the dominant purpose of a communication must be the anticipation of litigation. Communications between an insurer and an adjustor are not initially privileged, as there is a duty to investigate and adjust claims but once litigation is certain, the dominant purpose of communications becomes litigation and privilege exists.

Young Estate v. RBC Dominion Securities, [2008] O.J.N. 5418, add reasons (2009), 75 CPC (6th) 364
Young draws a distinction between the statutory business records exception to the hearsay rule and the common law exception. Under the statutory except only facts are admissible. Under the common law exception opinions and impressions are admissible (Quaere -- opinion evidence issues?)

Carevest Capital v. North Tech, 2009 Carswell Ont. 2158
Affidavits based on information and belief must name a person as the source of information -- stating the affidavit is “informed by documents” is insufficient.

Lawrence v. Peel, 2009 Carswell Ont. 3077
In general, to find an adverse inference because a witness was not called requires it to be clear that the witness was prepared for one party and not for the other. Where either side could call a witness no inference should be drawn when the witness is not called.

More broadly, in the adversarial trial system, a party in a civil case has an absolute right to withhold a source of evidence from the court; but if the issue may determine the case and the opponent's evidence is strong enough to call for a reply, the failure to call evidence may cause the trier of fact to draw an adverse inference[1]. So, if an obvious witness is not called to testify and no explanation of why the witness is not called is given, the court may infer the witness would prove unhelpful. That said, as the chart below shows, the inference is seldom fully drawn.

A party's unexplained failure to call an important witness[2] may provide the basis for such an inference. An adverse inference will be drawn against a party only if the opponent is able to establish a prima facie case requiring the party to disprove it or run the risk of losing the case.[3] The inference is that the missing evidence would be contrary to, or at least not support, the party's case.[4]

Thus, in Levesque v. Comeau[5] the Supreme Court, speaking of a plaintiff’s failure to call a witness said:
She alone could bring before the Court the evidence of those facts and she failed to do it. In my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence would adversely affect her case.

Other reasonable inferences may be drawn from the established facts concerning what the missing facts might have been.

No adverse inference will be drawn if the party can offer a reasonable explanation for failing to call the evidence[6].


R. v. Osakue, 2009 Carswell Ont. 5829
This case restates the application of the Rule in Browne v. Dunn, (1893), 6 R. 67.
Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party. The effect of the failure to challenge a witness’s version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case:
[1] Kops v. R., [1894] A.C. 650 at 651 (P.C.) (witnesses are not called to disprove facts); Murray v. Saskatoon (1951), 4 W.W.R. (N.S.) 234 at 240 (Sask. C.A.); Blatch v. Archer (1774), 98 E.R. 969 at 970 (it is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of the one side to have produced, and in the power of the other to have contradicted); Bernardi v. Guardian Royal Exchange Assur Co., [1979] I.L.R. 1-1143 (Ont. C.A.).
[2] Levesque v. Comeau, [1970] S.C.R. 1010 (court must draw adverse inference from plaintiff's failure to call examining physicians); Sunnyside Nursing Home v. Builder Contract Management Ltd., [1985] 4 W.W.R. 97 (Sask. Q.B.) (conditions required for drawing adverse inference from failure to call witness); Kamitomo v. Pasula (1983), 29 Alta. L.R. (2d) 375 (Q.B.) (failure to call witness where it would be "natural" to do so).
[3] FN5. Gannon & Associates Ltd. v. Advocate General Insurance Co. of Canada (1984), 12 C.C.L.I. 61 at 73 (Man. Q.B.); LeBlanc v. Ringuette (1981), 36 N.B.R. (2d) 500 at 504 (C.A.); Becker v. Cleland's Estate (1980), 30 N.B.R. (2d) 12; varied on other grounds 35 N.B.R. (2d) 542 (C.A.); Claiborne Industries Ltd. v. National Bank of Canada (1989), 59 D.L.R. (4th) 533 (Ont. C.A.); see also Dominion Stores Ltd. v. Retail, Wholesale & Dept. Store Union (1981), 14 Sask. R. 412; reversed 17 Sask. R. 22 (C.A.).
[4] Nyle International Corp. v. Depow (1991), 285 A.P.R. 91; affirmed 120 N.B.R. (2d) 176 (C.A.); Shillingford v. Dalbridge Group Inc. (1996), 47 Alta. L.R. (3d) 154 (Alta. Q.B.); Canada Southern Petroleum v. Amoco Canadian Petroleum Co. (1996), 8 C.P.C. (4th) 328 (Alta. Q.B.); affirmed (1997), 7 C.P.C. (4th) 26 (Alta. C.A.); leave to appeal refused (1997), 212 A.R. 24 (note) (S.C.C.).
[5] Levesque v. Comeau, [1970] S.C.R. 1010
[6] Haughian v. Paine, 36 C.C.L.T. 242; reversed 40 C.C.L.T. 13; leave to appeal to S.C.C. refused [1987] 6 W.W.R. lix (absent witness in poor health; mental disability); Mourant v. McLean (1976), 15 N.B.R. (2d) 644 at 646; affirmed 17 N.B.R. (2d) 93 (C.A.); (plaintiff did not call defendant; defendant not found credible on two prior occasions); Stark Holding Ltd. v. Slattery (1982), 42 N.B.R. (2d) 20 (Q.B.) (plaintiff did not call defendant's friend and business associate); Mitchell v. C.N.R., 6 N.S.R. (2d) 131; reversed on other grounds [1975] 1 S.C.R. 592 (opposing party fully advised that witness in court; available if opposing party required; witness's testimony would add nothing to evidence already presented).