Hearsay Evidence – The Principled Approach

Hearsay Evidence - The Principled Approach

The Courts have generally in recent years allowed the introduction of hearsay evidence stating that it should be done so under a principled approach. It is a fact that most estate disputes when litigated often refer to statements from the grave and what was stated by the deceased prior to death and other types of hearsay that is not usually admissible into evidence.

Mac v Mak 2016 BCSC 1140 quoted the following excerpt of law that summarizes hearsay evidence in estate litigation:

Justice Dardi considered the principled approach to the hearsay exception in Harshenin v. Khadikin, 2015 BCSC 1213.  Hearsay evidence is presumably inadmissible when relied upon for the truth of its contents.  However, if the statement is not proffered for its truth or is proffered pursuant to a well-established exception, such as for the deceased person’s state of mind, it is admissible: Harshenin at para. 30, citing R. v. P(R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.).

[32]        However, the evidence must carry indicia of trustworthiness: R. v. Panghali, 2010 BCSC 1114 at para. 21.

[33]        Justice Dardi noted in Harshenin that statements attributed to the deceased may require application of the “principled approach” to hearsay.  She referenced the four decisions of the Supreme Court of Canada that should be followed regarding the principled approach, which are R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Starr, 2000 SCC 40; and R. v. Khelawon, 2006 SCC 57: Harshenin at paras. 32 – 33.  The admissibility of hearsay under the principled approach is summarized in Khelawon at para. 2:

… When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails.

[34]        The onus is on the party tendering the hearsay evidence to establish the necessity and reliability on a balance of probabilities. The court in this case must assess both the threshold reliability of the statement at issue and the statement’s ultimate reliability, having regard to the entirety of the evidence: Khelawon at paras. 2-3.

[35]        Of the twin requirements, namely necessity and reliability, necessity will be met if the maker of the statement is deceased: Harshenin at para. 34.

[36]        To establish reliability, the court must examine the circumstances surrounding the making of the statement.  Justice Dardi described this inquiry as follows:

[35]      … A circumstantial guarantee of trustworthiness is established if the statement was made in circumstances which “substantially negate” the possibility that the declarant was untruthful or mistaken: Smith at 933.

[36]      As a preliminary threshold issue, the court must first find on a balance of probabilities that the statement was made by the Deceased before it goes on to determine the treatment and weight of such evidence: Creutz v. Estate of Kristian Winther, 2007 BCSC 1463 at para. 99. In essence, this assessment turns on the credibility of the various witnesses: Halfpenny v. Holien (1997), 37 B.C.L.R. (3d) 186 (S.C.).

Accordingly, in the case at bar, in addition to finding on a balance of probabilities that the statement was made, the Court must find the twin requirements of reliability and necessity have been met.

[37]        Because Sau Har Mak is deceased, there is clearly the requirement of necessity.  In respect of reliability, for the reasons that follow I find the evidence of Sau Har Mak’s meetings with her family, executing the mortgage documents, and arranging the Mahon properly to be held jointly with her daughters is reliable.

[38]        When the reliability of evidence is in question, the court must look to documents that can either corroborate or refute evidence given by witnesses: Cerenzie v. Duff, 2014 BCSC 1345 at paras. 28 – 31; Gutierrez Estate v. Gutierrez, 2015 BCSC 185 at paras. 24, 51, 55, 87 to 88.

Expert Witnesses

Expert witnesses

Once an expert becomes a witness, the expert is then presented to the court as truthful, reliable, knowledgeable and qualified.

Rule 11-2(1) makes it clear that an expert has a duty to assist the court and is not to be an advocate for any party.

The expert must certify that he or she was aware of that duty and has prepared the expert opinion and will testify in accordance with that duty.  Rule 11-2( 2)

In Vancouver Community College v Phillips , Barratt ( 1987) 20 BCLR (2d) 289 held that if the expert testifies as a witness, he or she may be required to produce all documents in their possession that are relevant to their opinion or their credibility.

However, if the expert does not testify and remains an advisor only, then privilege is maintained over the documents in their possession.

Witness Memory Difficulties and Expert Evidence

Witness Memory Difficulties and Expert Evidence

Witnesses in general on occasion have memory difficulties but where the memory is so lacking as to be unreliable, expert evidence may be admissable to show that a witness suffers from a mental disability which affects his or her ability to testify reliably.

The admissible evidence is not limited to the fact of the diagnosis, but extends to the facts and circumstances on which the diagnosis is based and the extent to which the credibility of the witness is affected .

Medical evidence will not be admissable however if the purpose is to test the credibility of the witness.

In Woolley v. College of Physicians and Surgeons of British Columbia, [1996] 6 W.W.R. 716, 19 B.C.L.R. (3d) 122 (S.C.), Justice Hall considered an appeal relating in part to the production of records. He found that the records sought related predominantly to credibility and character and, as such, did not need to be disclosed.

In R. v. Kliman (1996), 71 B.C.C.A. 241, 107 C.C.C. (3d) 549, in which the court found the trial judge had denied the appellant sufficient access to the records of the psychiatrist who had determined that the complainant had “a personality disorder-borderline” and “took liberties with facts and had an inability to distinguish what was factual from what was not” (para. 10).

R v Kliman followed  Toohey v. Metropolitan Police Commissioner, [1965] 1 All E.R. 506 at 512 (H.L.), in which Lord Pearce stated:
…
Human evidence shares the frailties of those who give it. It is subject to many cross-currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and commonsense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed that he had seen at a distance of fifty yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than twenty yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time and which would have prevented him from seeing what he thought he saw. So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise.
…

Document Production Litigation

Document Production Litigation

Document production in litigation in BC is now under the new rules in effect since 2010 to initially only producing documents necessary to prove a material fact.

The new rule for production of documents was discussed in Biehl v Strang 2010 BCSC 1391.

Rule 7-1(1) states:
(1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,
(a) prepare a list of documents in Form 22 that lists
(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and
(ii) all other documents to which the party intends to refer at trial, and
(b) serve the list on all parties of record.

The assumption appears to be that in many, if not most cases, such production will be sufficient. This change in scope is consistent with Rule 1-3(2) which provides:

Proportionality
(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to
(a) the amount involved in the proceeding,
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding.

[15] Rule 7-1 (14) does provide for wider disclosure upon application to the court including documents “relating to any or all matters in question in the action”.

The previous Rule 26(1) was broadly interpreted in accordance with the test described in Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.), in which the Court of Appeal stated at 62-63:

I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; and the practice with regard to insurance cases shews, that the Court never thought that the person making the affidavit would satisfy the duty imposed upon him by merely setting out such documents, as would be evidence to support or defeat any issue in the cause.
The doctrine seems to me to go farther than that and to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”

In other words, the requirement that the disclosure relate to a material fact limits the breadth of what is relevant.

[The authors of The Law of Evidence in Canada define relevance at para 2.35:
§2.35 A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s A Digest of the Law of Evidence, where it is defined to mean:

… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:
For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter.

Litigation Loans

Litigation Loans

The spiralling costs of litigation has led to an increasing number of litigants and lawyers  having to seek litigation loans to fund the court case.

It is not unheard of for personal 9njury lawyers to have a million dollars in out of pocket disbursement a for such expenses as retaining experts. If possible the lawyers will get the funding from their clients, but most often either the law firm or the client or both will resort to third parties who are prepared to loan the necessary funding, albeit at high interest rates.

The Ontario divional court decision of Narbutt  v. Sharpe Beresh Gnyś  May 2016 was such a situation.

Narbutt retained lawyer Gnys to act for her in a personal injury case when she was 17.

Her lawyer Gnys arranged for his client to borrow $13,500 to fund the out of pocket expenses .  There was a contingency fee arrangement between the client and lawyer.

Lawyer Gnys failed to advise her that the funds were being loaned to her by a corporatation owned and controlled by his wife. Nor did he tell her that the person assisting her in the loan applications was a member of his law firm, and also worked for the loan company, and did not represent her interests.

At the conclusion of the litigation years later, the amount of interest claimed was $28,000 , representing an effective interest rate of 19.5%.

the law firm sued for summary judgement and was awarded the entire amount.

The award was set aside on appeal on the basis that the loan was unconscionable, expressing concern about the way the identity of the lender was concealed from Narbutt, and the lack of independent legal advice offered to her.

“I find that these agreements are unconscionable because there was an imbalance of power, the Respondent took unfair advantage of the imbalance of power and the bargain was improvident.

“Furthermore, the Appellant had every reason to believe that everyone who spoke with her about the loans was representing her interests. The Appellant dealt with the lender in the belief that the lender was independent of her lawyer, who had been instrumental in the arrangement of the loan and choice of lender. She reasonably understood her law firm as assisting her in borrowing what was for her a substantial sum of money when in fact the Respondent, Valerie Gnyś, was the lender, her lawyer was the lender’s husband and employer and Mr. Beresh, who did accident benefits work for her lawyers, was in fact acting for the lender,”

The decision points out the necessity for lawyers to insist that their clients obtain independent legal advice and that there be full disclosure of any connection between the law firm and the lender.

Setting Aside a Default Judgement

Setting Aside a Default Judgement

Miracle Foods v. D&H Enterprises Ltd.  1979] B.C.J. No. 1965, 10 B.C.L.R. P 58. Establishes a four part test for setting aside a default judgement.

A default judgement is obtained when the plaintiff properly serves a defendant with a Petition or a Notice of Claim and the defendant fails to file a Response at the Court a Registry within the time allowed by the Surpeme Court rules.

The Test:

  1. That the applicant did not willfully or deliberately fail to enter an appearance or file a defence to the plaintiff’s claim,
  2. That the application to set aside the default judgment was made as soon as reasonably possible after obtaining knowledge of it, or explain any delay in bringing the application,
  3. That the applicant has a meritorious defence or at least a defence worthy of investigation, and
  4. Establish the foregoing to the satisfaction of the court through affidavit material. The court’s application of this test involves an exercise of discretion when assessing the weight given the test’s individual factors and reasonableness of the defendant’s explanation in each case.

Where a defendant has not received notice, the granting of default judgment becomes a failure of natural justice. The defendant has been deprived of their right to be heard and the default judgment is considered a nullity, which the defendant is entitled to have set aside as of right.

See Bache Halsey Stuart Shields Inc. v. Charles Estate [1982] B.C.J. No. 1757, 40 B.C.L.R. 103

Contempt of Court

Contempt of Court

Many years ago I brought on contempt of court proceedings in a matrimonial proceeding that resulted in what I would categorize as a waste of time and money.

There are exceptions of course, but   in my opinion, since  the proceedings are  quasi- criminal  in the burden of proof required,  the Courts  are reluctant to readily make a finding of contempt of court but for flagrant intentional violations of an order and even then the penalty is more akin to a slap on the wrist.

In the application of yesteryear, I gave the opposing counsel a copy of a case from the mid 1600’s when the “accused” after being found in contempt of court was executed there and then. The Court did find the husband in contempt but refused to follow the English precedent.

 The Supreme Court of Canada reviewed the law of civil contempt in  Carey v Laiken 1015 SCC 17 :

” a solicitor holding that as an officer of the court, a solicitor of record is duty-bound to take scrupulous care to ensure respect for court orders. … [A]s the solicitor of record in the case, Carey should be held to the same standard of compliance as his client who was a party. [para. 64]”

The Canadian Common Law of Civil Contempt

30      Contempt of court “rest[s] on the power of the court to uphold its dignity and process …. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect”: U.N.A. v. Alberta (Attorney General), [1992] 1 S.C.R. 901 (S.C.C.), at p. 931. It is well-established that the purpose of a contempt order is “first and foremost a declaration that a party has acted in defiance of a court order”: Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612 (S.C.C.), at para. 35, cited in Bell ExpressVu Ltd. Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614 (Ont. C.A.), at para. 20.
31      The common law has developed to recognize two forms of contempt of court: criminal contempt and civil contempt. The distinction, which the parties to this appeal accept, rests on the element of public defiance accompanying criminal contempt: see, e.g., United Nurses, at p. 931; Canadian Transport (U.K.) Ltd. v. Alsbury, [1953] 1 S.C.R. 516 (S.C.C.), at p. 522. With civil contempt, where there is no element of public defiance, the matter is generally seen “primarily as coercive rather than punitive”: R. J. Sharpe, Injunctions and Specific Performance (2nd ed. (looseleaf)), at ¶6.100. However, one purpose of sentencing for civil contempt is punishment for breaching a court order: Korea Data Systems Co. v. Chiang, 2009 ONCA 3, 305 D.L.R. (4th) 655 (Ont. C.A.), at para. 117. Courts sometimes impose substantial fines to match the gravity of the contempt, to deter the contemnor’s continuing conduct and to deter others from comparable conduct: Sharpe, at ¶6.100.
32      Civil contempt has three elements which must be established beyond a reasonable doubt: G. (N.) c. Services aux enfants & adultes de Prescott-Russell (2006), 82 O.R. (3d) 686 (Ont. C.A.), at para. 27; College of Optometrists, at para. 71; Bhatnager v. Canada (Minister of Employment & Immigration), [1990] 2 S.C.R. 217 (S.C.C.), at pp. 224-25; Jackson v. Honey, 2009 BCCA 112, 267 B.C.A.C. 210 (B.C. C.A.), at paras. 12-13; TG Industries Ltd. v. Williams, 2001 NSCA 105, 196 N.S.R. (2d) 35 (N.S. C.A.), at paras. 17 and 32; Godin v. Godin, 2012 NSCA 54, 317 N.S.R. (2d) 204 (N.S. C.A.), at para. 47; Gaudet v. Soper, 2011 NSCA 11, 298 N.S.R. (2d) 303 (N.S. C.A.), at para. 23. These three elements, coupled with the heightened standard of proof, help to ensure that the potential penal consequences of a contempt finding ensue only in appropriate cases: Bell ExpressVu, at para. 22; Chiang, at paras. 10-11.
33      The first element is that the order alleged to have been breached “must state clearly and unequivocally what should and should not be done”: Prescott-Russell, at para. 27; Bell ExpressVu, at para. 28, citing with approval Jaskhs Enterprises Inc. v. Indus Corp. [2004 CarswellOnt 4036 (Ont. S.C.J.)] 2004 CanLII 32262, at para. 40. This requirement of clarity ensures that a party will not be found in contempt where an order is unclear: Pro Swing, at para. 24; Bell ExpressVu, at para. 22. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning: Culligan Canada Ltd. v. Fettes, 2010 SKCA 151, 326 D.L.R. (4th) 463 (Sask. C.A.), at para. 21.
34      The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager, at p. 226; College of Optometrists, at para. 71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine (ibid.).
35      Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Sheppard, Re (1976), 12 O.R. (2d) 4 (Ont. C.A.). at p. 8. The meaning of this element is one of the main points in contention on appeal and I will turn to consider it in more detail momentarily.
36      The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders: see, e.g., Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65 (Ont. C.A.), at para. 3. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect”: Centre commercial Les Rivières ltée c. Jean bleu inc., 2012 QCCA 1663 (C.A. Que.), at para. 7. As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments”: Vidéotron ltée c. Industries Microlec produits électroniques inc., [1992] 2 S.C.R. 1065 (S.C.C.), at p. 1078, citing Daigle c. St-Gabriel de Brandon (Paroisse)[1991] R.D.J. 249 (C.A. Que.). Rather, it should be used “cautiously and with great restraint”: TG Industries, at para. 32. It is an enforcement power of last rather than first resort: Hefkey, at para. 3; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89 O.R. (3d) 81 (Ont. C.A.), at paras. 41-43; Centre commercial Les Rivières ltée, at para. 64.
37      For example, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion generally retains some discretion to decline to make a finding of contempt: see, e.g., Morrow, Power v. Newfoundland Telephone Co. (1994), 121 Nfld. & P.E.I.R. 334 (Nfld. C.A.), at para. 20; TG Industries, at para. 31. While I prefer not to delineate the full scope of this discretion, given that the issue was not argued before us, I wish to leave open the possibility that a judge may properly exercise his or her discretion to decline to impose a contempt finding where it would work an injustice in the circumstances of the case.

(3) The Required “Intent”

38      It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, at para. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25, Sharpe, at ¶ 6.190. The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” (2013 ONCA 530 (Ont. C.A.), at para. 59). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard and Sharpe, at ¶6.200.
39      The appellant submits, however, that in situations in which the alleged contemnor cannot “purge” the contempt, is a lawyer or is a third party to the order, the intent to interfere with the administration of justice must be proved. I understand this to mean that “the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order” must be established: TG Industries, at para. 17. This is sometimes also referred to as “contumacious” intent.
40      The appellant submits that the mental element of civil contempt must address at least one of the two goals of civil contempt: securing compliance with court orders or protecting the integrity of the administration of justice. Finding a party in contempt where he or she cannot purge (either because the act that constituted the contempt cannot be undone or because a conflicting legal duty prevents compliance with the order) furthers neither of these goals absent some heightened mental element for contempt. Only if the person is shown to have had the intent to interfere with the administration of justice would one of these purposes — protecting the integrity of the administration of justice — be served.
41      I cannot accept this position. There is no principled reason to depart from the established elements of civil contempt in situations in which compliance has become impossible for either of the reasons referred to by the appellant. Where, as here, the person’s own actions contrary to the terms of a court order make future compliance impossible, I fail to see the logic or justice of requiring proof of some higher degree of fault in order to establish contempt. The appellant’s submission also overlooks the point that one of the purposes of the contempt power is to deter violations of court orders, thereby encouraging respect for the administration of justice. It undermines that purpose to treat with special charity people whose acts in violation of an order make subsequent compliance impossible. It seems to me that the existing discretion not to enter a contempt finding and the defence of impossibility of compliance provide better answers than a heightened degree of fault where a party is unable to purge his or her contempt for the reasons the appellant outlines: Jackson at para. 14; Sussex Group Ltd. v. Fangeat (2003), 42 C.P.C. (5th) 274 (Ont. S.C.J.), at para. 56.
42      The appellant correctly notes that civil contempt is quasi-criminal in nature, which he says justifies a higher fault element where contempt cannot be purged. But civil contempt is always quasi-criminal, so this provides no justification for carving out a distinct mental element for particular types of civil contempt cases. As I have already discussed, requiring contumacious intent would open the door to mistakes of law providing a defence to an allegation of civil contempt. It could also permit an alleged contemnor to rely on a misinterpretation of a clear order to avoid a contempt finding, which would significantly undermine the authority of court orders.
43      Further, adopting the appellant’s proposal would in effect make the required mental element dependent on the nature of the order alleged to have been breached. Those who breach a prohibitory order would benefit from this heightened mental element disproportionately, due to subsequent impossibility of compliance, as compared to those who breach a mandatory order, with which the alleged contemnor will be able to subsequently comply absent a conflicting legal duty. I see no principled basis for creating this distinction.
44      The appellant also submits that lawyers should benefit from a heightened fault requirement, but I do not agree. As the Court of Appeal recognized, reliance on legal advice does not shield a party from a finding of contempt: para. 61, citing Mileage Conference Group of the Tyre Manufacturers’ Conference, Re, [1966] 2 All E.R. 849 (Eng. Restrictive Practices Ct.), at p. 862; Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 48 D.L.R. (3d) 641 (Ont. H.C.), at p. 661, aff’d (1975), 65 D.L.R. (3d) 231 (Ont. C.A.). Still less should the law permit lawyers to escape a finding of contempt because they have, in effect, relied on their own legal advice.
45      As for third parties, the appellant points to some authority in the United Kingdom and Australia to the effect that intent to interfere with the administration of justice is a prerequisite for finding a third party in contempt: e.g., Customs & Excise Commissioners v. Barclays Bank Plc, [2006] UKHL 28, [2007] 1 A.C. 181 (Eng. H.L.), at para. 29; Attorney General v. Punch Ltd., [2002] UKHL 50, [2003] 1 A.C. 1046 (U.K. H.L.), at para. 87; Z Ltd. v. A., [1982] 2 W.L.R. 288 (Eng. C.A.), at p. 305; Baker v. Paul, [2013] NSWCA 426 (New South Wales S.C.), at para. 19. It has also been noted that “[i]t would appear that a higher degree of intention is required to make a non-party liable for contempt”: Sharpe, at ¶6.210.
46      The short answer to this point is that, even accepting this line of authority, Mr. Carey is not in the same category as the third parties discussed in this line of authority. I would respectfully adopt as my own the following excerpt on this point from the reasons of Sharpe J.A. in the Court of Appeal:
The solicitor-client bond creates a community of interest between Carey and Sabourin that is plainly distinguishable from the situation of a stranger to the litigation who is apprised of the court order. As an officer of the court, a solicitor of record is duty-bound to take scrupulous care to ensure respect for court orders. … [A]s the solicitor of record in the case, Carey should be held to the same standard of compliance as his client who was a party. [para. 64]

(4) Conclusion

47      I conclude that “contumacious” intent was not required in this case, and to the extent that the judge at first instance found otherwise in overturning her earlier finding of contempt, she erred in law.

Adverse Inference

Adverse Inference

Bronson v Hewitt 2010 BCSC 169 reviewed the law of adverse inference, which probably is not utilized as much by counsel as they could.

It typically arises when a key witness who would normally be expected to testify, does not.

Adverse Inference

[323] The plaintiffs submit that the court should draw an adverse inference against both Eugene and Howard from Eugene’s failure to testify at trial. They submit that given Eugene’s role in these proceedings, his evidence is crucial in regard to several matters at issue. In support of their submission, they cite Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) where the authors state at 297:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[324] The defendants submit that such an inference should not be drawn in this case. Mr. Dives on behalf of Eugene notes that Eugene is not simply a witness, but also a party and, more importantly, a defendant in a case in which the plaintiff bears the burden of proof. He submits that a defendant is entitled to say: “you have not made out your case so there is nothing to answer.” He submits that the plaintiffs’ submission is an attempt to shift the burden of proof by making the defendant respond to matters that the plaintiffs have not proved.

[325] In R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, the court at paras. 25-28

reviewed the principles governing the drawing of adverse inferences:

25. The general rule developed in civil cases respecting adverse inferences from failure to tender a witness goes back at least to Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, where, at p. 65, Lord Mansfield stated:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

26. The principle applies in criminal cases, but with due regard to the division of responsibilities between the Crown and the defence, as explained below. It is subject to many conditions. The party against whom the adverse inference is sought may, for example, give a satisfactory explanation for the failure to call the witness as explained in R. v. Rooke (1988), 40 C.C.C. (3d) 484 (B.C.C.A.), at p. 513, quoting Wigmore on Evidence (Chadbourn rev. 1979), vol. 2, at para. 290:

In any event, the party affected by the inference may of course explain it away by showing circumstances which otherwise account for his failure to produce the witness. There should be no limitation upon this right to explain, except that the trial judge is to be satisfied that the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for nonproduction. [Italics in original; underlining added.]

27. The party in question may have no special access to the potential witness. On the other hand, the “missing proof” may lie in the “peculiar power” of the party against whom the adverse inference is sought to be drawn: Graves v. United States, 150 U.S. 118 (1893), at p. 121. In the latter case there is a stronger basis for an adverse inference.

28. One must also be precise about the exact nature of the “adverse inference” sought to be drawn. In J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 297, para. 6.321, it is pointed out that the failure to call evidence may, depending on the circumstances, amount “to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it” (emphasis added), as stated in the civil case of Murray v. Saskatoon, [1952] 2 D.L.R. 499 (Sask. C.A.), at p. 506. The circumstances in which trial counsel decide not to call a particular witness may restrict the nature of the appropriate “adverse inference”. Experienced trial lawyers will often decide against calling an available witness because the point has been adequately covered by another witness, or an honest witness has a poor demeanour, or other factors unrelated to the truth of the testimony. Other jurisdictions also recognize that in many cases the most that can be inferred is that the testimony would not have been helpful to a party, not necessarily that it would have been adverse: United States v. Hines, 470 F 2d 225 (3rd Cir. 1972), at p. 230, certiorari denied, 410 U.S. 968 96 (1973); and the Australian cases of Duke Group Ltd. (in Liquidation) v. Pilmer & Ors, [1998] A.S.O.U. 6529 (QL), and O’Donnell v. Reichard, [1975] V.R. 916 (S.C.), at p. 929.

[326] In this case, counsel for both Eugene and Howard offered explanations for their decision not to call Eugene. Mr. Dives advised that Eugene was not called because, in his view, there was no case to meet. Further, he says the expenses involved in bringing Eugene from Florida to testify at the trial would have been significant. He did not suggest, however, that Eugene’s attendance was financially impossible.

[327] Mr. Harris, on behalf of Howard, further advised that he had no special access to Eugene as a witness and had no way of compelling his attendance. He does not suggest, however, that Eugene would have refused to testify on Howard’s behalf if asked.

[328] Both Mr. Dives and Mr. Harris note that Eugene was extensively examined for discovery and the nature of his evidence is known to the plaintiffs. They submit that if the plaintiffs thought that Eugene’s evidence would be of assistance to them they should have taken steps to compel his attendance pursuant to the adverse witness rule (Rule 40(17)).

[329] As noted by Saunders J.A. in Buksh v. Miles, 2008 BCCA 318 at para. 30, 83 B.C.L.R. (4th) 162, the notion of adverse inference is related to the best evidence rule. The inference should only be drawn in regard to the non-production of witnesses whose testimony would be superior in respect of the facts to be proved.

The Bogus Expert

The Bogus Expert

A bogus expert was recently discussed in a sexual assault appeal,  JP v BG 2016 BCCA 91 , when the Court labelled a bogus expert report as a” fraud on the court”.

The so called expert was in fact a recipient of a “diploma mill” and had very little in the way of credibility or credentials.

THE COURT STATED:

11      This brings me to the primary bases on which B.G. seeks an extension of time to appeal the family case; that there has been a fraud committed on the court by a witness called by the mother, Claire R. Reeves. Despite objection by the Province and B.G., Claire Reeves was permitted to give expert opinion evidence in the area of child sexual abuse and incest. Her evidence was lengthy, and heard over two days. She also filed a written report.

12      Claire Reeves has not responded to the allegations made, although counsel for J.P. has spoken with her. Thus, the comments I make about her relate to allegations and are not findings of fact.

13      She filed an expert report, and presented herself with qualifications that included a Doctorate in Clinical Counselling, Masters of Science in Clinical Psychology, Bachelor of Science in Family Mediation, and a Bachelor of Arts in Journalism.

14      Counsel for B.G. has examined these qualifications and discovered that they all appear to be online degrees obtained from unaccredited organizations, referred to colloquially as “diploma mills”. Other evidence was led to demonstrate that Claire Reeves was allegedly not truthful with respect to her employment, expertise and experience in court. For example, despite saying that she had testified in multiple cases in the United States, she does not appear on a United States expert witness data base, nor does she appear in any case after an extensive search conducted by a representative of LexisNexis. In other words, there is strong evidence to support the allegation that a fraud has been committed on the court.

15      In addition, B.G. submits, Reeves based much of her opinion on a theory called “child sexual abuse accommodation syndrome”, popularized in the 1980’s and 1990’s. This theory suggests that certain behaviours of children are consistent with sexual abuse. This theory was discredited as a diagnostic tool by the doctor who advanced the theory in the first place, and has not been admitted into courts as proof of sexual assault for decades. For example, see R. v. K. (A.) (1999), 45 O.R. (3d) 641 (Ont. C.A.) at paras. 61-62, 86, 125-129.

At paragraph 29 Bennett JA labelled such bogus expert evidence s a “ fraud of the court”.

Adverse Possession

Adverse Possession

Mowaqtt v BC Attorney general 2016 BCCA 113 dealt with a long established principle of  adverse possession  relating to  squatters long time  use of  property that had escheated to the crown .  A claim of squatters to  legal entitlement to a parcel of property  occasionally occurs in estate disputes  in this blog from the BC Court of Appeal  explains this long-established  legal principle .

The appeal was  from an order dismissing the appellant’s claim, based on the doctrine of adverse possession, for recognition of title to land long possessed by them and others.

The claim derived from occupancy of land on Kootenay Lake by squatters no later than 1909.

The absolute legal title to this land escheated to the Crown by dissolution of the corporate titleholder in 1930.

The trial  judge found that the appellants had not proved continuous possession of the land for the years 1916 to 1920. This gap, he said, broke the continuity required for a successful claim.

The BC Court of Appeal  allowed the appeal :

The claim depended upon limitations provisions that derive from 1833 English limitations legislation, received into British Columbia law November 19, 1858, contemporaneously with proclamation of the Colony of British Columbia. The claim depended on a web of circumstantial evidence that should be tested on the basis of “its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”.

The issues are resolved as follows:

1) The appellants did not lack standing to bring the claim. Whatever claim prior possessors of the land had was passed to the appellants.

2) It was not necessary for the appellants to establish that the squatters’ use of the property was inconsistent with the use of the land intended by the owner of the absolute title. The requirement to prove inconsistent use does not apply in British Columbia.

3) Evidence not considered, or not fully considered in the context of other evidence, demonstrated that the gap in likely possession was shorter than found by the judge. Applying an approach consistent with the Land Title Inquiry Act and the nature of proof available, and considering the shortened gap, the nature of the property and the circumstances known of persons associated with the property, it is more likely than not that the adverse possession of the land by squatters had the degree of continuity between 1916 and 1920 required for the claim. As years subsequent to 1923 were not addressed by the judge, the petition is remitted to the Supreme Court of British Columbia for final determination.

The Doctrine of  Adverse Possession

[5] Adverse possession is an ancient doctrine rooted in the common law’s recognition of a possessory estate in fee simple and attenuated by the application of statutes of limitation. Recognition of an estate based on possession creates conflict between the rights of the possessor (sometimes called the squatter) and the superior right of the true or “paper” owner who has a right to evict the person in possession.

[6] Since 1833 in England, by the Real Property Limitation Act, 1833 (3 & 4 Will 4, c. 27), received in British Columbia on November 19, 1858 through what is now s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253, the doctrine of adverse possession has required the true owner to sue to recover possession of land within a limitation period. Once the applicable limitation period has expired, the true owner’s cause of action in trespass and ejectment may be barred or extinguished, in consequence of which the true owner’s title may be extinguished and a person in possession will be entitled to have that title recognized. As L. Smith J. observed in Re: Land Title Inquiry Act and Canadian Pacific Railway Company, 2002 BCSC 1041:

[47] … where a party has had the intention to possess property and has in fact possessed it for the period of time stipulated in the limitation statute, effectively excluding the true owner, the true owner will be barred from bringing an action to recover the land. …

[7] As a true owner’s title is ultimately defeated by failing to pursue his cause of action against a squatter within the limitation period, the doctrine of adverse possession recognizes that the true owner must be in a position to assert his or her rights against someone. Accordingly, various preconditions and limitations to a claim to adverse possession have developed. In Principles of Property Law, 6th ed. (Toronto: Carswell, 2014), Bruce Ziff explains the necessary elements for adverse possession at 142:

… To succeed, the acts of possession must be open and notorious, adverse, exclusive, peaceful (not by force), actual (generally), and continuous. If any one of these elements is missing, at any stage during the statutory period, no rights against the paper owner can be successfully asserted. …

In general, … the adverse use must be such as to put the paper owner on notice that a cause of action has arisen. After all, the doctrine is based on the failure to bring suit within the limitation period, and therefore time should not run unless it is fair to hold a delay against the owner. Hence, the occupation must be open and notorious, and not clandestine. The adverse possessor must send out a clarion call to the owner, who, if listening, should realize that something is awry. Usually this means that the squatter must use the land in the way that an owner might.

[8] The doctrine of adverse possession does not require that the adverse possessor be the same person, provided adverse possession is continuous. Possession by different squatters can be “tacked” on one after the other, provided there is always someone for the true owner to sue. Anger & Honsberger, Law of Real Property, loose-leaf (consolidated December 2015), 3rd ed. by Anne W. La Forest (Toronto: Canada Law Book, 2006) at §28:50 states:

Once adverse possession has commenced, thus causing a right of action to accrue in some person with a superior right to possession, the time will continue to run against that person so long as there is continually some person in adverse possession who may be sued. Thus, either successors by transfer or by devolution to the title of the original adverse possessor, or a subsequent adverse possessor who is acting independently to dispossess the original adverse possessor or those claiming under them, may add together, or tack, all the prior periods of time together to extinguish the superior claim. However, if the original adverse possessor or those claiming title under them should abandon possession before the superior right of possession is extinguished, and there should be a gap before a subsequent adverse possessor acquires possession, no tacking is possible. During the period when no one was in adverse possession, the person with the superior right to possession would have no person to sue. Accordingly, time ceases to run against that person and, when the subsequent adverse possession occurs, time starts running an