Court of Appeal uses same test for reliability for hearsay and opinion evidence; bonus dormitat Homerus

Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225 deals with hearsay and the principled approach. 

A capacity assessor left certain voicemails outlining his impression of the capacity of a testator. Subsequently he had no records or recollection of or for the voicemails or what prompted him to say what he said.  The Court of Appeal ruled, absent some backup notes or recollection the voicemails were unreliable and so inadmissible under the principled approach (which requires necessity and reliability for otherwise hearsay statements to be admitted)

With respect, the issue of reliability for hearsay is whether there is circumstantial indicia of trustworthiness.  That might well be found in that the voicemail was being left to determine a course of action. The lack of notes and recollection goes to necessity.  Such lack says nothing about reliability.  

The Court's approach makes more sense when the issue of expert opinion included in the hearsay voicemails is considered. An expert opinion without an evidentiary basis has little if any probative value. But as for reliability and the principled approach the decision is problematic. The question of reliability for hearsay is not the same as reliability of an expert opinion. 

The Court held:

[67]       Dr. Silberfeld's voicemail messages are out-of-court statements that were not subject to contemporaneous cross-examination.  They are, therefore, hearsay: seeR. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.  Whether looked at under the principled approach to the admission of hearsay evidence or under the Mohan test for the admission of expert opinion evidence, to be admissible the two messages had to meet the requisite reliability criterion. 

[68]       The motion judge ruled, at para. 206, that the two messages did not meet the reliability criterion for the admission of hearsay:

Perhaps more importantly, the transcripts of the voicemail messages are not reliable because, while I accept there is no reason to doubt that the voicemail messages were left and were accurately transcribed, Dr. Silberfeld admits to having no recollection of meeting Bessie, no recollection of the interview or what he did during the interview, and to having no notes, no file and no independent memory of anything, including leaving the voicemails.

[69]       More significantly, however, the motion judge recognized that Sharon principally sought to rely on Dr. Silberfeld's voicemail messages as expert opinion evidence showing her mother's lack of testamentary capacity.  The motion judge rejected that basis of admissibility because as opinion evidence the two messages lacked reliability.  He explained in some detail why he reached that conclusion, at para. 209:

In my view, even if Dr. Silberfeld's "impressions" could be said to be relevant to the issue of testamentary capacity, the reliability of those impressions is fatally undermined by the total absence of any evidence, or even recall, of what he did to form that impression.  In the absence of a reliable scientific foundation for the proffered opinion evidence, the opinion itself necessarily lacks reliability.  In fact, the text of Dr. Silberfeld's voicemails themselves suggest he did not conduct the scientific inquiry necessary to form a proper opinion.  Rather, he formed an "impression"before engaging in the necessary analysis, and passed that impression on to Schoenroth so that she could decide whether, in light of his "impression," a proper analysis should even be undertaken.  Dr. Silberfeld concedes that he did not definitively conclude that Bessie lacked testamentary capacity.  His message confirms he was prepared to meet with Bessie again once she had "refreshed herself" about her assets and that she might, in any event, have capacity to execute a codicil without any further education.  There is, of course, in law no different standard for capacity to execute a codicil as opposed to a will because codicils effectively republish the subsisting will.

[70]       I agree with the reasons given by the motion judge at para. 209 and, therefore, would not interfere with his ruling that Dr. Silberfeld's voicemail messages were inadmissible.  Accordingly, I would not give effect to this ground of appeal.