Sunday, November 3, 2013

Pleading may be admitted as exhibit at trial in Judge's discretion

Vanderbeke v. O'Connor, 2013 ONCA 665 deals with the admission of a pleading as an exhibit during trial.  It is not uncommon to cross-examine a party on their pleading at trial (whether that is an effective technique is another issue) but few cases have considered whether it is proper to admit the pleading as an exhibit.  Here the Court held such admission was proper; it should be noted here that the pleading was in a related matter and was drafted by the party without counsel.  In other cases it might be argued that the plading was drafted by counsel and ought not to bind the party too strictly.  The Court held:


[6]          Prior to the accident the appellant had made a series of claims for compensation to the WSIB as a result of workplace injuries. In 2002 after compensation was cut off by the WSIB he commenced an action against the WSIB and the Province of Ontario. In that proceeding he alleged an improper denial of benefits by the WSIB and took the position that he was disabled. The pleading was drafted by the appellant without the assistance of counsel and contained intemperate comments and serious allegations against the WSIB.


[7]          At trial the appellant objected to the admission of the document on the basis that its prejudicial impact outweighed any relevance. The trial judge admitted the statement of claim in evidence. The cross-examination of the appellant on the statement of claim focused not on the injury that was the subject of the claim, but on the appellant's conduct in commencing the claim. During cross-examination no objection was made by counsel for the appellant regarding any of the questions asked on this issue.


[8]          The appellant submits that the admission into evidence of the statement of claim and the cross-examination thereon subjected him to ridicule and invited emotional decisions by the jury based on irrelevant considerations. We disagree.


[9]          The trial judge admitted the document, apparently on the basis that it was relevant to the issues of general damages and economic loss. He also advised counsel that he would hear from them if they wished to have the jury given a specific instruction regarding the document either in his final charge or as a mid-trial charge. Counsel for the appellant did not raise with the trial judge the issue of a correcting instruction either prior to or after the delivery of the final charge.


[10]       With respect to the use of the document, counsel for the appellant submits that it was used for an improper purpose unrelated to the basis upon which it was admitted. However, counsel did not object at trial to the questions asked in cross-examination regarding the claim or to the references made to it in the closing submissions of counsel for the respondents. While the failure to object is not fatal, it is a significant factor in a determination of whether the impugned conduct of counsel warrants appellate intervention.


[11]       The admission of the statement of claim into evidence was a decision within the trial judge's discretion. We see no basis to interfere with the manner in which he exercised his discretion. We do note, however, that the statement in his ruling to the effect that the relevancy of the document was a matter for determination by the jury was incorrect and inconsistent with the evidentiary gatekeeper role played by a trial judge.



No comments: