Secret Recording Admitted Into Evidence

A secretly recorded telephone conversation was admitted into evidence in Surrett v Butkiewicz 2018 BCSC 1380 .

The actual parties were deceased, and the litigation as to whether their relationship was marriage like or not, was conducted by personal representatives of each deceased party.

The parties lived in the same residence, but were never married. The claimant alleged a marriage like relationship of approximately 28 years.The respondent agreed that they lived in the same house, but they were mere tenants or roommates and not in a spousal relationship.

The respondent sought to admit a recorded telephone conversation between the opposing parties, despite the fact his lawyer conceded that in all likelihood the conversation was surreptitiously and illegally intercepted by the respondent: see Criminal Code s. 184.

A transcript of the conversation was submitted in evidence, along with the recording itself.

The recorded conversation is just a few minutes long, and at the end of it the claimant tells the man to whom she is speaking that “she lives in a house with the great big yard, lots of trees, pears and apples and grapes and plums, but that it’s not mine, dear. I just pay rent here. None of its mine”

The claimant continues to confirm in the conversation that she is “just a border, that it used to be more, we used to go together, but this had changed about four years before, and now it was like being a roommate and it’s better”.

The court found that the conversation probably took place in approximately 2003.

The court admitted the conversation into evidence as the contents of it were directly relevant to the central issue of the case, being the nature of the claimant’s relationship with the respondent.

The court found that the recording was trustworthy in the sense that it did not appear to have been manipulated, doctored or edited. The claimant volunteered the comments about paying rent and being a roommate and a self-evidently natural, good-natured way, in declarations that the court found were spontaneous, unmanaged utterances of their relationship.

The court did follow precedent that surreptitious recordings of household conversations is an odious practice that should be discouraged, it is not the case, however, that such conversations are automatically excluded.

If the content of the recording is relevant to an issue in the proceeding, the identity of the speaker is known, but recording is trustworthy, and it’s probative value outweighs its prejudicial effect, the evidence should be received.- Matthews v . Matthews 2007 BCSC 1825 at paragraph 43.

The court went on to state that it would not exclude the evidence on the basis that its inclusion would bring the administration of justice into disrepute, especially given the nature of the case where the parties are deceased, and where the court’s task will be to search high and low for any credible evidence that may be weighed in the balance to determine the central issue in question.

Medical Records Admissible As Business Records

Medical Records Admissible As Business Records | Disinherited

Medical records of the deceased were admitted into evidence as business records in Re Singh Estate 2019 BCSC 272.

In Ares v Venner (1970) SCR 608 at 626 held that medical records can be admitted as an accurate record of facts of the author, and that the author had first-hand knowledge of those facts.

In Baas v Jellema 2000 BCCA 24 .the appeal court held that a medical record containing a fact or first-hand observation is admissible to prove a fact, but it is not admissible to prove the truth of a medical opinion.

The clinical records are hearsay, but are admissible under the business records exception both that common-law and under section 42 of the Evidence Act.

The principles were summarized in McTavish v . McGillivary (1997) 38 BCLR 306:

1. The notes taken must be made contemporaneously;

2. The notes must be made by someone having a personal knowledge of the matter is being recorded;

3. The notes must be made by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business;

4. The matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business;

5. A statement in the records of the fact that a certain diagnosis was made will be admissible;

6. Recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4;

7. The fact that the referring doctor relied upon another doctor’s opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact, so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring doctor wished or required that opinion to be received before forming his or her own opinion.;

8. Statements made by parties or by experts which are recorded in the usual and ordinary course of business, but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within section 14 of the evidence act, which allows for the admissibility of such statements. If it can be sure that they are proof of a prior inconsistent statement

In Cambie Surgeries Corporation v BC AG 2016 BC SC 1896, the court clarified that a patient or other third party must be within the observation of the medical practitioner who has a duty to record the observations in the ordinary course of business. The court held that any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact

Credibility: Who to Believe?

Credibility: Who to Believe? | Disinherited Vancouver Estate Litigation

Many court cases are decided on the issue of credibility. If the court does not believe one partie’s evidence then in all likelihood that party will lose.

The law relating to credibility was reviewed in Yung v Three Good Friends Property Holdings Inc. 2018 BCSC 1963.

In Yung there were three competing versions of events presented by three main parties- Messrs. Yung, Wong and Lam.

The court found Mr. Wong’s recollection of the events to be extremely poor. He said he had no memory of most key events. His poor memory and the discrepancies between his discovery evidence and is evidence at trial being that I give little weight to his evidence.

Mr. Lam was argumentative, evasive and nonresponsive to questions. His evidence was rambling and internally inconsistent, and was therefore inherently unbelievable. It was infused by extreme animosity towards Mr. Yung and his evidence was transparently self-serving.

Mr. Yung won the case. The court found his evidence to be straightforward and internally consistent. He was subjected to extended and hostile cross-examination that bordered on abusive, with accusations of deceit and fraud. He retained his composure throughout.

In Bradshaw v Stenner 2010 BC SC 1398, affirmed in the Court of Appeal 2012 BC CA 296, the trial court provided a summary of the principles governing the court’s approach to assessing the evidence where there are significantly different versions advanced by the parties:

• credibility involves an assessment of the trustworthiness of the witnesses testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides;

• The art of assessment involves an examination of various factors such as the ability and opportunity to observe events, the firmness of memory, the ability to resist the influence of interest to modify recollection and whether the witnesses evidence harmonizes with independent evidence that has been accepted

• whether the witness changes his testimony during direct and cross-examination

• whether the testimony seems unreasonable, impossible or unlikely

• whether a witness has a motive to lie

• the demeanor of a witness generally.

The court referred to a previous Court of Appeal decision in Faryna v Chomy 1952 2 DLR 354 which stated to the affected ultimately, the validity of the evidence depends on whether it is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time.

The court stated” it has been suggested that a methodology to adopt is to first consider the testimony of a witness on a standalone basis, followed by an analysis of whether the witnesses story is inherently believable. Then, if the witness testimony has survived relatively intact, the testimony should be evaluated based on the consistency with other witnesses and with documentary evidence. The testimony of non party, disinterested witnesses may provide a reliable yardstick for comparison.

Finally the court should determine which version of events is the most consistent with the preponderance of probabilities which are practical and informed person would readily recognizes reasonable in that place and in those conditions ( Overseas Investments (1986) Ltd v. Cornwall Developments LTD (1993) 12 Alts. LR 298.

Admissible Extrinsic Evidence In S. 58 WESA Applications

Admissible Extrinsic Evidence in S. 58 WESA Applications | Disinherited

Admissible extrinsic evidence in S 58 WESA applications to “ cure” defective wills was discussed in Re Mace Estate 2018 BCSC 1284.

In short, the ordinary rules of admissibility apply.

Ordinarily, evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible.

Relevance must therefore be assessed on a case-by-case basis , as set out in Regina v White 2011 SCC 13:

“In order for evidence to satisfy the standard of relevance, it must have some tendency is a matter of logic and human experience to make the proposition for which it is advanced, more likely than that proposition would be in the absence of that evidence”.

Under section 58 WESA inquiries to determine, on a balance of probabilities, whether a noncompliant document embodies the deceased testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions, namely the deceased is not available to testify.

In addition, by their nature, the source of documents being assessed will likely not have been created with legal assistance. Given this context, and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased state of mind, understanding and intention regarding the document.

Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry –Langseth estate v Gardiner (19990) 75 DLR (4th) 25 at 33 ( Man. CA)

The case authorities discuss that the extrinsic evidence may include events that occurred before, when and after the document was created – the key issue in an application under section 58 is whether, on the balance of probabilities, the item placed before the court, the record or document or writing or marking on a will or document, was intended to have testamentary effect: that is, does it represent the deliberate or fixed and final expression of intention of the material time as to the to the disposal of the will maker’s property on death? The role of the court on an application under section 58 is not to determine the validity of the instrument per se, or the validity of the gifts contained within it, but determine whether the instrument represents the deceased testamentary intention- Re Smith Estate 2016 BCSC 350.

The BC Court of Appeal decision in Re Hadley Estate 2017 BCCA 311 confirm that section 58 of WESA does not require a basic level of compliance with the formalities of making a will. The consideration of the court is whether the document represents the testamentary intentions of its maker. The material time for determining these intentions will in many cases be the time at which the will was made. However, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will maker’s intention.

In addition to the language of the document, extrinsic evidence of testamentary intent is admissible on the inquiry, such as the circumstances surrounding its creation and direct statements of the deceased. Such evidence benefits. The court, since the person who made the document will no longer be available to testify, and often the document will not have been made with the assistance of counsel.

The most common situation in which an application fails is where the court is simply not satisfied that the propounded document or record contains the will maker’s final thoughts are intentions with respect to the will or its alteration, revocation or revival, but is just a draft are some preliminary notes that are subject to change. As one court as put it, the curative provisions allow the court to overlook the formal requirements of the act, but not to speculate on the testamentary intentions of the deceased – Re Archer Estate 2005 SKQB 118 at para. 9

Spoliation of Evidence

Spoliation of Evidence

Spoliation of evidence is the intentional destruction of relevant evidence when litigation exists or is pending.

There are few cases on the issue in Canada but it does occur on occasion.

In Holland ( Guardian ad litem) v Marshall 2008 BCCA 468 the appeal court stated re a medical malpractice suit where it was alleged hospital records had been deliberately destroyed:

55      Justice Brooke stated his understanding of the law of spoliation of evidence based on four case authorities to which he was referred by counsel for the respondents. The following is a summary of what was stated:

1. A rebuttable evidentiary presumption arises where evidence of spoliation exists; the doctrine of spoliation is an evidentiary rule raising a presumption and not an independent tort giving rise to a cause of action (St. Louis v. R. (1896), 25 S.C.R. 649 (S.C.C.)).

2. In an appropriate case, destruction of documents carries a procedural but not substantive remedy, an action for damages cannot be sustained solely on the ground that documents have been destroyed (Endean v. Canadian Red Cross Society (1998), 48 B.C.L.R. (3d) 90 (B.C. C.A.)).

3. Spoliation requires four elements in evidence: a) the evidence has been destroyed; b) the evidence destroyed was relevant to an issue in the lawsuit; c) legal proceedings were pending; and d) the destruction of documents was an intentional act indicative of fraud, or an intention to suppress the truth (Dyk v. Protec Automotive Repairs Ltd. (1997), 41 B.C.L.R. (3d) 197 (B.C. S.C.)).

4. There is no common law duty of care to preserve property which may possibly be required for evidentiary purposes; such an obligation can only be imposed by court order granted pursuant to the Rules of Court (Dawes v. Jajcaj, 1999 BCCA 237, 66 B.C.L.R. (3d) 31 (B.C. C.A.), aff’g (1995), 15 B.C.L.R. (3d) 240 (B.C. S.C.), leave to appeal ref’d (2000), [1999] S.C.C.A. No. 347 (S.C.C.)).

56      Justice Brooke accepted the evidence presented by the Hospital that Ms. Holland’s records were destroyed in accordance with its policy in place at the time and not for the purpose of suppressing evidence. He concluded there was no evidentiary foundation for Ms. Holland’s assertion of spoliation on the part of the defendant physicians or the Hospital. In that regard, Brooke J. said:

In Gray v McNeil 2016 ABQB 645 the court found evidence of spoliation had been rebutted by corroborative evidence:

A mother had contents of the deceased’s laptop computer erased days before examination for discovery, and her actions in erasing laptop computer amounted to spoliation .

Counsel for both parties agreed that the  laptop would be examined, and the mother engaged in deliberate act to destroy evidence so it was not available for ongoing legal proceedings.

The mother did not merely wipe out evidence of deceased’s private life, but also evidence that could prove or disprove whether and when 2011 will was created on laptop.

Spoliation created presumption that evidence on computer would have been unfavourable to mother, but the presumption was rebutted by other evidence that corroborated mother’s evidence. 

Spoliation, which is the intentional destruction of relevant evidence when litigation exists or is pending: McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, 440 A.R. 253 (Alta. C.A.), at para 29. The spoliation of relevant evidence is a serious matter. As was noted in Doust v. Schatz, 2002 SKCA 129, 227 Sask. R. 1 (Sask. C.A.), at para 27 “[t]he integrity of the administration of justice in both civil and criminal matters depends in a large part on the honesty of parties and witnesses. . . . A party is under a duty to preserve what he knows, or reasonably should know, is relevant in an action….”

124      The principle remedy for spoliation is the imposition of a rebuttable presumption that the evidence which was destroyed would not have assisted the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence that proves her case, McDougall at para 18:

. . . Spoliation in law does not occur merely because evidence has been destroyed. Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this is demonstrated, a presumption arises that the evidence would have been unfavourable to the party destroying it. This presumption is rebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his case or repels the case against him.

Re-Opening a Case For New Evidence

Re-Opening a Case For New Evidence


B(K) v B(J) 2016 BCSC 1904 involved an application for reopening a case that had been decided and attempt to introduce new evidence as to the increased valuations of two properties.

The over riding test is  it in the interests of justice to do so.

The Court reviewed the law relating to the discretion of the court   and declined to re- open the case to allow new evidence.

Reopening Proceedings and New Evidence

11      Counsel should proceed as quickly as is reasonably possible to have the decisions of the trial judge reduced to the form of an order and to have the order approved or settled and entered; see Re Janke (1977), 2 B.C.L.R. 378 (S.C.).
12      However, a trial judge retains discretion to re-open an issue before formal judgment has been entered. This discretion is unfettered but is to be used sparingly; see Cheema v. Cheema, 2001 BCSC 298at para. 4; Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.) at para. 9; and Clayton v. British American Securities Ltd. (1934), 49 B.C.L.R. 28 at 66-67 (C.A.).
13      In Lemare Lake Logging Ltd. v. British Columbia (Minister of Forests & Range), 2009 BCSC 902, Grauer J. reviewed the case law relevant to the discretion to re-open, and at para. 7, said:
  1. This discretion should be exercised sparingly and with the greatest care to avoid unwarranted attempts to disturb the basis for judgment, or to permit a litigant to re-establish a broken down case.
  2. The onus is on the applicant to establish that a miscarriage of justice would probably occur if the matter is not reopened.
  3. New evidence is a usual, but not an essential, prerequisite; where it is offered, the onus is on the applicant to establish that it would probably change the result of the proceeding.
  4. The credibility and weight of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result.
  5. Although the question of whether the evidence supporting the application could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would likely occur if the hearing is not reopened.
  6. In general, reconsideration of an issue is not an alternative to an appeal.
14      In Bronson v. Hewitt, 2010 BCSC 871, Goepel J., as he then was, concluded:
[33] From my review of the authorities I take the law to be that new evidence will only be admissible on a reconsideration application if it would likely change the result and, except in exceptional circumstances, the evidence could not have been obtained by reasonable diligence before the trial. In exceptional circumstances, in order to prevent a miscarriage of justice, fairness may dictate that new evidence will be admissible even though the evidence may have been discoverable prior to trial. New evidence will generally not be admissible in situations where the evidence was not called at trial because of tactical considerations.
15      Apart from new evidence, a judge may also properly re-open if satisfied, either because of the argument of one of the parties, or on the basis of his or her own reconsideration of the record, that the original judgment was in error because it overlooked or misconstrued material evidence or misapplied the law; Sykes at para. 10.
16      The Court of Appeal recently considered the principles applicable to a reconsideration application in Moradkhan v. Mofidi, 2013 BCCA 132. The Court reviewed the law at paras. 28-32, relying heavily on the summary of MacKenzie J., as she then was, in Mohajeriko v. Gandomi, 2010 BCSC 60 at paras. 20-27, 31-32. Justice Garson said:
[31] I agree with, and adopt the comments of MacKenzie J. I would summarize the main principles applicable to such an application in the following way:
  • it is generally speaking in the interests of justice to consider that a trial is complete when each side has closed their case and the judge has delivered his or her judgment;
  • a judge’s unfettered discretion to reopen a trial should be exercised with restraint;
  • a party may not use the rule to re-argue, re-cast, or re-state his or her case, rather the rule is available to remedy what might otherwise be a substantial injustice;
  • it is not intended that a party should be able to lead substantial new evidence, nor does the rule generally permit the leading of new expert evidence;
  • the reasons that the evidence was not led or submissions not made in the first place may be relevant to the exercise of the judge’s discretion, particularly where the failure to do so in the first place was a considered or pragmatic decision; and
  • the discretion should only be exercised if the reception of the new evidence would probably change the result of the trial.
I would add to this list that a judge may reasonably exercise such discretion where a relatively discreet error in math or some mechanical consideration of the evidence is clearly in error. Finally, the overarching consideration is whether it is in the interests of justice that the court reopen the case. (See also Brown v. Douglas, 2011 BCCA 521, 314 B.C.A.C. 143.)
[32] From a procedural point of view it seems to me that fairness would dictate that an application must be made to the judge on notice to the other party with an outline of the evidence to be tendered. The judge will then decide to reopen or not, and may direct a further hearing, or if appropriate, decide the question concurrently with the application to reopen. Such an application must be governed by the Supreme Court Civil Rules, B.C. Reg. 168/2009, relating to interlocutory procedures and the conduct of trials. …