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Principled Exception to the Hearsay Rule
Published in the February 2009 issue of Litigation Notes - View Article
A trial judge admits as evidence affidavits previously sworn by a witness who was now unable to testify by reason of dementia
The Ontario Superior Court of Justice recently considered an interesting evidentiary point. Counsel for the Plaintiff moved to admit into evidence at trial two affidavits sworn by the Plaintiff. At the commencement of trial the Plaintiff was 83 years old and suffering from dementia. He was unable to be examined at trial and hence unable to be cross-examined by counsel for the Defendant.
The motion brought by the Plaintiff was brought under rules 53.02 and 31.11 of the Ontario Rules of Civil Procedure. Rule 53.02 provides: “before or at the trial of an action, the Court may make an order allowing the evidence of a witness or proof of a particular fact or document to be given by affidavit, unless an adverse party reasonably requires the attendance of the deponent at trial for cross-examination”.
The Court concluded that this Rule did not apply to the circumstances of the case. The Court considered that the Rule was not designed to address exceptions to the hearsay rule, but rather to achieve efficiencies in the trial process. Where a point must be proved but is not contentious, Rule 53.02 permits the evidence to be received by way of affidavit, instead of wasting valuable court time. Given that the Rule permits an adverse party to require “the attendance of the deponent at trial for cross-examination”, it clearly cannot apply to circumstances where the deponent is not capable of testifying at trial.
The other Rule relied on by the Plaintiff was rule 31.11 which provides that where a person who has been examined for discovery has died, is unable to testify because of infirmity or illness, or for any other sufficient reason cannot be compelled to attend at the trial, the trial judge may allow evidence taken at an examination for discovery to be read in as evidence at the trial.
Again, the Court felt that this Rule did not apply to an affidavit. The Court held that “xaffidavits prepared by the party, or his counsel, are not the same as examinations for discovery conducted by the other side. Both are evidence given under oath, but one is produced through the adversarial process of questioning and the other is prepared for a party to advance his own case. Second, even where there has been cross-examination on an affidavit, or a foregone opportunity to cross-examine, there is not the same presumption that all material issues in the law suit have been coveredx”. Consequently the Court found that the analogy with Rule 31.11 was not particularly useful and indeed that there was no black and white rule which applied to the circumstances of this case.
Nevertheless, the Court went on to consider whether the affidavit should be admitted based on the principled exception to the hearsay rule developed in the case law. The Court referred to the leading case of R. v. Khan, which involved a statement from a 3 ½ year old child to her mother, which implicated the accused paediatrician in a sexual assault on the child. The Court in that case considered the hearsay rule and pointed out that it has traditionally been regarded as an absolute rule, subject to various exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations.
However, in recent years the Courts have been inclined to adopt a more flexible approach and to examine whether or not a particular statement should be admitted based on necessity and reliability. The Court went on to consider whether it could be deemed to be necessary to admit Dr. Cormack’s affidavits and found that it was. Clearly Dr. Cormack was not capable of testifying and the Plaintiffs would be prejudiced if none of his evidence could be admitted.
The Court went on to say that it had grave concerns about the reliability of the affidavit evidence. However, the Court was of the view that its reliability could be dealt with by analyzing it in the context of all of the other evidence at trial and consequently ruled that the affidavits would be admitted.
Cormack Animal Clinic Ltd. v. Potter
2009 CanLII 713