Monday, July 29, 2013

Corroboration absent and judgment set aside

Anten v. Bhalerao, 2013 ONCA 499 uses the concept of corroboration to set aside a finding of incapacity.  The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witness, or to comport with some facts otherwise known or established.  Corroboration is seldom seen in modern Canadian law – this is an unusual case where it is key:

[28]       It was common ground that s. 14(1) of the Evidence Act applied in this case, and that, in order for the Board to uphold the respondent’s finding of incapacity, the respondent’s evidence had to be corroborated. Section 14(1) provides as follows:
An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:
1. A person who has been found,
i. incapable of managing property under the Substitute Decisions Act, 1992 or under the Mental Health Act,
ii. incapable of personal care under the Substitute Decisions Act, 1992, or
iii. incapable by a court in Canada or elsewhere.
[29]       The Board did not expressly consider the requirements of this provision, but the issue of corroboration was considered by the appeal judge. The appellant submits that the appeal judge erred in finding that the respondent’s evidence was corroborated. The appeal judge’s conclusion on corroboration was simply that the Board “was in the best position to hear the evidence and observe and assess the demeanour and comportment of both witnesses, all of which served to corroborate the Respondent’s testimony”. I have some difficulty with this conclusion.
[30]       I accept that in an appropriate case a physician’s evidence can be corroborated, within the meaning of s. 14, by a patient’s own evidence. It would have been preferable if the appeal judge had identified what part of the appellant’s evidence corroborated the respondent’s evidence, since, on my reading of the record, the appellant contradicted the respondent on virtually every substantive issue. The appellant disputed the respondent’s evidence that she had a prior diagnosis of schizophrenia and that she had not been assaulted. She denied that her condition improved with medication or that she obtained any benefit from treatment. Without more, it is not apparent how any of the appellant’s evidence could be said to have corroborated the respondent’s evidence.
[31]       The respondent’s evidence of the appellant’s mental illness stood alone, except for a peculiar comment at the conclusion of his testimony when, in his words, he was “just going to throw in” that:
[T]here is a fair amount of collateral evidence from her sister who supports this paranoia and the worry. There is evidence from the previous nursing home before we did get collateral, and there is evidence from the general internal medicine people on this floor. The social workers on this floor as well as there is material in the chart I guess, from the nursing staff as well, that support that the paranoia is very I guess diverse.
[32]       While hearsay may well be admissible on this type of hearing, see Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15, there must be some basis for finding that the evidence is sufficiently reliable: see Starson, at para. 115. This testimony from the respondent was so entirely lacking in detail that it provided no basis upon which the Board could make a reasonable decision.

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