Testimonial Competence

Karrington v Morrisonn 2023 BCSC 570 dealt with the thorny issue of testimonial competence.

The court appointed a litigation guardian for the personal defendant and then ordered that an examination for discovery of the said demented persona take place as the threshold for testimonial competence is not high.

Under Rule 9-2(8) of the SCFR, a mentally incompetent person can only be examined with leave from the court. Rule 7-2(9) of the Civil Rules is identically worded. The court should grant leave only if the party seeking examination can establish that the proposed examinee can give sufficiently reliable evidence: DeMerchant v. Chow, 2010 BCSC 1447 [DeMerchant] at para. 44.

In considering whether the proposed examinee is able to give sufficiently reliable evidence, the elements of testimonial competence may provide useful guidance, namely, the proposed examinee’s capacity to observe, recollect and communicate. If the person satisfies the low threshold of testimonial competence, the court should grant leave for them to be examined, provided the person would not suffer psychological damage in the process.

The onus for showing that a mentally incompetent person should be examined rests on the party seeking examination: Penn v. Secord, [1980] 1 W.W.R. 464, 1979 CanLII 693 (B.C.S.C) at para. 7.

In DeMerchant, the Court frames the inquiry in terms of the reliability of the proposed examinee’s testimony: at paras. 44-47. If the court is satisfied that the person’s evidence would be unreliable, and that examining them would be futile, then leave should not be granted: at para. 44. Ultimately, in that case, the Court declines to grant leave to examine the proposed examinee due to medical evidence indicating that they have a tendency to fill in memory gaps by confabulating.

Courts outside of British Columbia have also considered whether a person under a disability should be examined for discovery. For example, in Abrahamson v. Buckland, [1990] 5 W.W.R. 193, 1990 CanLII 7809 (S.K.C.A.) [Abrahamson], at paras. 32–33, the Saskatchewan Court of Appeal set out a useful framework that has been cited by courts in Saskatchewan, Ontario and Alberta, including the Alberta Court of Appeal in Bilawchuk v. Wawryko, 2002 ABCA 178 at para. 67.

The relevant portions of the framework described in Abrahamson are as follows:

In deciding whether to grant leave, the court should consider whether the person’s evidence would be sufficiently reliable and whether examining them would be futile: DeMerchant at para. 35. In this regard, the court may consider whether the person is “legally fit and qualified to give evidence” (Abrahamson at para. 29) and whether they possess the capacity to observe, recollect and communicate evidence: Marquard at para. 12. If the proposed examinee can give sufficiently reliable evidence, and there is no concern that they would suffer psychological damage in the process, the court should grant leave for them to be examined.

The threshold for testimonial competence is not high. If the person is shown to have basic abilities to observe, recollect and communicate, along with an understanding of the nature of an oath, their evidence should be admitted: Marquard at para. 14.

The authorities indicate that a deficit in a person’s ability to observe, recollect or communicate is not necessarily a disqualifier to testimonial competence. That is because, after it has been determined that their evidence should be admissible, any deficiencies in their ability ought to go to weight: Marquard at para. 14.

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