Doug Mitchell
Winter 2015
EVIDENCE (CIVIL MATTERS) – LAWG 415
Case summaries
Contents
Case summaries ................................................................................................................................................ 1
Introduction: THE BASICS .................................................................................................................................. 3
Truth in Adjudication, by Mir jan Damaska................................................................................................... 3
Hryniak v Mauldin, 2014 SCC 7 ..................................................................................................................... 3
Charland c. Lessard, 2015 QCCA 14, ............................................................................................................. 4
FH v McDougall, 2008 SCC 53 ....................................................................................................................... 4
Caisse populaire de Maniwaki v. Giroux ....................................................................................................... 5
Hollis v. Dow Corning Corp., 1995 SCC.......................................................................................................... 6
TYPES OF INFORMATION THAT MAY BEAR ON AN ADJUDICATIVE DECISION: WRT CONCLUSIONS OF FACT . 7
Crispino v General Accident Insurance Co, QCCA, 2007 ............................................................................... 7
Clouthier v The Queen, [1979] 2 SCR 709 ..................................................................................................... 8
R v Seaboyer; R v Gayme, SCC 1991 .............................................................................................................. 8
Anderson (Guardian ad litem of) v. Erickson BCCA 1992 .............................................................................. 8
Fontaine v BC 1998 SCC ................................................................................................................................ 9
BNC v Soracchi (10 p) ................................................................................................................................. 10
Graat v the Queen, [1982] 2 SCR 819 ......................................................................................................... 10
R v DD, 2000 SCC ......................................................................................................................................... 11
R v Mohan, 1994 SCC .................................................................................................................................. 15
Kumho Tire Co v Carmichael, SCOTUS 1998 ............................................................................................... 16
Masterpiece Inc v Alvida Lifestyles, 2011 SCC 27 ....................................................................................... 17
Anderson, G.R., “Clear and Partial Danger: Defending Ourselves Against the Threat of Expert Bias”
2004............................................................................................................................................................. 21
Dr. Charles Smith: the man behind the public inquiry ................................................................................ 22
R v RDS, [1997] 3 S.C.R. 484 ...................................................................................................................... 22
TYPES OF INFORMATION THAT MATTER WRT CONCLUSIONS OF LAW.......................................................... 27
Bodum USA, Inc. v. La Cafetière, Inc. .......................................................................................................... 27
Ordon Estate v. Grail ................................................................................................................................... 28
RJR MacDonald v Canada (AG), [1995] 3 S.C.R 199 .................................................................................... 29
Bedford, 2013 SCC 72.................................................................................................................................. 32
R. v. Spence, [2005] 3 S.C.R. 458 ................................................................................................................. 32
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE RELATING TO DISPUTED FACTS: IN
THE COMMON LAW TRADITIONAL ................................................................................................................. 34
Brouillard v. The Queen, 1985 SCC ............................................................................................................. 34
Simioni v. Simioni ........................................................................................................................................ 34
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE RELATING TO DISPUTED FACTS: IN
THE CIVIL LAW TRADITION .............................................................................................................................. 35
Kötz, H., “Civil Justice Systems in Europe and the United States”; ................................................ 35
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE RELATING TO DISPUTED FACTS: IN
QUEBEC ........................................................................................................................................................... 36
Technologie Labtronix Inc. v. Technologie Micro Contrôle Inc. .................................................................. 36
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE RELATING TO DISPUTED FACTS:
BEFORE QUASI-JUDICIAL TRIBUNALS .............................................................................................................. 37
Rivest v. Bombardier ................................................................................................................................... 37
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE RELATING TO DISPUTED FACTS:
BEFORE ARBITRAL TRIBUNALS ........................................................................................................................ 39
SPECIAL RULES BEARING ON EITHER THE ADMISSIBILITY OR THE PROBATIVE VALUE OF EVIDENCE:
EXAMPLES OF RULES PRIMARILY AIMED AT ELUCIDATING TRUTH........................................ 39
Guérin v. The State Life Insurance Co. ........................................................................................................ 39
Valuex Inc. v. Richmond Transport Inc.; ................................................................................................... 40
Toronto-Dominion Bank v.9045-1287 Québec inc., 2006 QCSC ................................................................ 40
Bilodeau v. Martineau ................................................................................................................................. 41
Ihag-Holding c Intrawest Corporation, 2009 QCCS ..................................................................................... 42
Bertrand Durand Inc. v. Acibec; .................................................................................................................. 43
Salomon v. Pierre-Louis............................................................................................................................... 43
Canadian Newspaper Co. v. Kansa General Insurance Co....................................................................... 43
Rules relating to testimony ......................................................................................................................... 44
Morrow v. Royal Victoria Hospital, 1974 .................................................................................................... 44
R v Khelawon, 2006 SCC 57 ......................................................................................................................... 44
Promutuel Drummond, société mutuelle d’assurance générale v. Les Gestions Centre du Québec Inc. 46
SPECIAL RULES: EXAMPLES OF RULES PRIMARILY AIMED AT ENSURING THE EFFICIENCY OF THE
ADJUDICATIVE PROCESS .................................................................................................................................. 46
Penner v. Niagara (Regional Police Services Board) SCC 2013; ............................................................. 46
Toronto (City) v. C.U.P.E., local 79; .......................................................................................................... 48
Ali v. Cie d’assurance Guardian du Canada; ............................................................................................ 49
Ungava Mineral Exploration Inc. v. Mullan; .............................................................................................. 50
Jean-Paul Beaudry ltée v. 4013964 Canada inc. ......................................................................................... 51
Blank v. Canada (Minister of Justice) .......................................................................................................... 52
SPECIAL RULES: EXAMPLES OF RULES PRIMARILY AIMED AT FURTHERING EXTRINSIC PUBLIC POLICIES ....... 53
Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets
(SIGED) Inc.; ................................................................................................................................................ 53
9139-4429 Québec inc. v. Rosemère (Ville de) ........................................................................................... 54
A.(M.) v. Ryan; ............................................................................................................................................. 54
Glegg v. Smith & Nephew Inc. 2005 SCC 31 ................................................................................................ 55
Globe and Mail v. Canada (Procureur général) ........................................................................................... 56
Houle v. Mascouche (Ville de) 1999 qcca ................................................................................................... 60
Introduction: THE BASICS
Discovering the “true” facts of the case:
Truth in Adjudication, by Mir jan Damaska
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“One of the working assumptions of the practice of adjudication is that truth is in principle discoverable,
and that accuracy in fact-finding constitutes a precondition for a just decision”.
 Two problems with this:
o Uncertainty about the ability to find objective truth (i.e. post-modernism)
o Realization about the fallibility of our fact-finding methods, particularly when the object is
human behaviour
 However, Damaska says that truth should be the objective of fact-finding, even though we have serious
doubts about whether it is possible to know the truth in an objective sense (what would be the
alternative way of administering justice?) Adjudicators can strive to know the truth within the
constraints of a socially-constructed world.
o The only place this really breaks down is when society is divided and the culture that controls
the court system is different from the one that is subject to it.
o Law deals with “a jumbled mixture of matters of unequal ontological status” and treats them
all on the same level. This may be appropriate, though. Subtleties and conceptual refinements
that are of interest to academic disciplines may be irrelevant for law’s purposes.
 There are certain situations however where law comes face-to-face with glaring uncertainty:
o predictions of the future: e.g. in assessing long-term injury in tort cases
o socially constructed concepts: assessing someone’s motives or intentions; whether someone is
behaving reasonably; moral prejudice
o scientific uncertainty—absence of evidence even though proof is theoretically possible
 Damaska also notes that the truth-seeking goal of adjudication may clash with other goals, and indeed
often takes a backseat role to those other goals:
o Law-making: may be subordinated to the goal of setting a precedent for other cases, especially
on important social issues.
o Dispute resolution: In minor cases, the judge relies on evidence presented by the parties. Even
if neither case is convincing, the judge will rule in favour of the more convincing case (on the
basis of probability).
o Protection from state power: even in criminal cases, fact-finding may be subordinate to
protecting the accused from police/state power abuses. Goals of procedure may be framed in
terms of evidence because it is believed police care more about getting to the truth than in
protecting human dignity and autonomy
 Damaska calls for greater attention to the diverse goals of legal proceedings and their sensitive
relationship to fact-finding
Should always study the institutional milieu when looking at evidentiary issues
Hryniak v Mauldin, 2014 SCC 7
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Karaktansis J starts off: ensuring access to justice is one of the greatest challenge to the rule of
law in Canada today. Trials have become increasingly expensinve and protracted. Most
Canadians cannot afford to sue when they are wronged or defend themselves when they are
sued, and cannot go afford to go to trial. Without an effective and accessible means of enforcing
rights, the rule of law is threatened. Without public adjudication of civil cases, the development
of the common law is stunted.
Para 2: the balance between procedure and access… must come to reflect modern reality and
recognize that new models of adjudication can be fair and just.
Para 4: criticizes ONCA for placing too high a premium on the full appreciation of evidence that
can be found in a trial
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Para 23: civil justice system premised on values… fair and just. This cannot be compromised.
(implicitly, that means everything else is open to compromise).
Para 29: recognition of tension between access and truth-seeking function.
Para 30: s 1.04. rules will be liberally construed…. In applying these rules… proportionate to the
importance and complexity if the issues and to the amounts involved
Para 61: ….the decision to allow oral evidence (the can hear oral evidence) but the decision rests
with the motion judge. It is the motion judge who maintains control.
Para 64: a revolution to all lawyers practising. The idea that you should have to convince a judge
to hear your evidence? WHAT???
Para 68: always a risk that summary judgements could be abused to add time and expense.
Charland c. Lessard, 2015 QCCA 14,
http://citoyens.soquij.qc.ca/php/decision.php?ID=879178A8AC64ADD99EC5718511CA9007&page=1
(the case he circulated via email)
Class notes:
Run of the mill shareholder dispute case. About $60,000 at stake. The lawyer’s strategy is full attack – v
aggressive proceedings. Theory is he will wear the other side down and get them to settle to make him go
away. Contingency fees. Shareholder oppression cases are one of the few where you can get costs
awarded. So one of his tactics is to run up the legal fees. So he got to the trial and said, with a straight face,
“I have spent $1.5 million in legal fees”. D lawyer said that P lawyer, the entire time, insisted on lots of
discovery, etc. D’s lawyer almost got fired multiple times bc he kept saying “we can’t descend to their
level”
 when it came to trial, the D’s clients filed a counter claim saying “you were excessive in your
conduct of proceedings, you should pay us OUR legal fees”
 so the guy who had bet everything on running it up, and not only did he not get his 1.5 million in
fees but his client is on the hood for the D’s fees
 this is what the CA affirmed
 you have to conduct yourself in a way that is proportionate to the issue
 message is partly that swinging for the fences on every single thing is not necessarily in your
client’s best interest
 client in this case ended up in a disastrous situation
 bad legal advice can wreak havoc for your client, AND for the other side
 Guy Lafleur trial: Mitchell bets that if he wins, takes about $20,000
 Don’t always think you need to be a bulldog in order to be a litigator
 It’s a challenge, because where were the judges during the case? What about case management?
 As lawyers, you want to get in a position where you get judges to do what they should have done
in this case: to make decision early on and avoid this kind of situation, where EVERYBODY loses
(even the D, who technically won, went through hell for years)
 Questions re case management: why didn’t a judge step in? Mitchell says, historically, courts of
appeal have not stood by superior court judges when they have made case management decisions,
restricting people’s rights. Judges don’t like restricting people’s rights. But this case has QCCA
willing to step in – sends a message. Interesting to see where it will go from here.
Standard of Proof
FH v McDougall, 2008 SCC 53
Facts: FH says McDougall sexually and physically assaulted him while he was a resident of an Indian
Residential School thirty years ago.
Judicial History: Trial judge said, despite some inconsistencies in testimony and other evidentiary
issues, she found on a balance of probabilities that the sexual abuse had occurred. BCCA: Rowles JA,
with Southin JA concurring said that in cases where there are allegations of morally blameworthy
conduct, the standard of proof should be “commensurate with the occasion”, i.e. higher than just on
a balance of probabilities. Ryan JA dissented.
Issue: What is the appropriate standard of proof?
Reasons: Rothstein J. Goes over a history of standard of proof jurisprudence in Canada and in the UK.
Para 40: “It is time to say, once and for all in Canada, that there is only one civil standard of proof at
common law and that is proof on a balance of probabilities”. Context is important, but it does not
change the standard of proof. All cases must be scrutinized with care by the judge, not only those that
carry more moral blameworthiness. It will be presumed that the trial judge applied the appropriate
standard of care. It is up to the trial judge to decide reliability and credibility of witnesses, even in the
face of inconsistent testimony. Corroborative evidence helps, but is not necessary. If we required it
for civil cases we would be requiring a higher burden than for criminal cases, where we have accepted
that corroborating evidence in sexual assault is difficult or impossible to obtain.
Burden of Proof:
Caisse populaire de Maniwaki v. Giroux
Facts : Giroux got a hypotec from Caisse Populaire. The loan came with life insurance guaranteed by
Assurance-Vie Desjardins (AVD). The insurance allowed for payment of interest on the capital in the
event of total disability during the life of the loan. Giroux injured her back gardening. Didn’t initially
apply for insurance, because she didn’t realize she had it, but the bank mentioned it to her and she
was approved for payments dating back to when she was injured. A few years went by and G refused
to see a doctor to satisfy insurance company so they cut off her claim. Bank sued and then she sued.
Burden in contract: “When a claim is made, the borrower must provide the savings and credit union
with evidence satisfactory to the insurer of his total disability.
Judicial history:
SC: “The trial judge examined the evidence submitted by the parties. He noted that the three
specialists who had examined the appellant Giroux, a neurologist, an orthopaedic surgeon and a
neurosurgeon, had unanimously concluded that she showed no symptoms of disability.” He said G
had the burden to show she had total disability, and she had failed to do so. Court of Appeal refused
to hear the appeal.
Issue: Where payments have been made under a disability insurance policy, does the onus shift to the
insurer to establish that the insured is no longer disabled before payments may be discontinued?
Holding: Yes, the onus shifts, but in this case the insuror had met the burden.
Reasons:
 Contract clearly establishes that claimant must prove total disability in order to receive
payment.
 But in order to stop payment, change in status must also be proven (or after person turns 65,
mortgage is paid, etc, as per contract)
 “As I characterized the disability earlier as a condition for payment, I am of the view that
cessation of the disability, as provided in this clause, must be seen as its antonym, that is,
simply as a condition for stopping payment
 And, k says claimant must submit to examinations sometimes: “The contract between AVD
and Ms. Giroux is clear on the question of the evidence to be provided under the contract:
one of the obligations of the insured set out therein is, at the request of the insurance
company, to prove that he or she continues to be disabled. The insurer's obligation to pay will
terminate, under clause 3, if the medical report provided under clause 9 -- and in particular
paragraph 1 -- shows that the insured's condition no longer amounts to a disability.”
 The general rule in respect of evidence in legal proceedings is set out in art. 1203 of the Civil
Code of Lower Canada: The party who claims the performance of an obligation must prove it.
 On the other hand he who alleges facts in avoidance or extinction of the obligation must
prove them; subject nevertheless to the special rules declared in this chapter

The appellant Giroux is correct to argue that, in the circumstances, it was up to AVD to
prove to the court that the insured was no longer disabled. Unfortunately, despite all the
sympathy we may feel for Ms. Giroux, the trial judge's findings are nonetheless not in error.
Even if he had correctly attributed the burden of proof, the outcome of the trial would not
have been different. If the judge had had any lingering doubt after the evidence was
presented, the doubt would have had to be resolved against the insurer. He did not have the
least hesitation as to the evidence presented by both parties' experts establishing the
cessation of the disability, without having to consider the burden of proof to make his
decision (at pp. 435-36
Hollis v. Dow Corning Corp., 1995 SCC
Facts: In 1983, Mrs. Hollis got breast implants. Her doctor did not warn her that it was possible the
implants could rupture. One of the implants ruptured and she ended up having pretty serious
complications. She sued her doctor, and the company who made the implants (DOW). TJ found that
Dow had been negligent in the manufacturing of the implants. CA overturned that finding, but said
they had filed to warn her doctor so that he could warn her, so upheld the ruling.
Issue: “The sole issue here is whether the Court of Appeal erred in finding Dow liable to the Ms. Hollis for
failing to warn Dr. Birch adequately of the risk of a post-surgical implant rupture”
Holding: Dow is liable.
Reasons
LaForest J:
Dow was trying to say that they were not responsible for not warning Hollis bc Evidence at trial revealed that Dr
Birch was not in the habit of warning patients based on manufacturer literature, so even if Dow had warned Dr.
Birch, Dr. Biirch might not have warned Hollis
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Laforest says: that makes no sense. If Dow HAD warned Birch, that would be one thing, but
they didn’t. It’s like they are asking Hollis to prove a hypothetical.
Draws a comparison between Cook v Lewis (two hungers each negligent, no way to know
which one actually shot third person) and this scenario. Dow was negligent.
“Justice dictates that she should not be penalized for the fact that had the manufacturer actually met
its duty to warn, the doctor still might have been at fault”
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“Simply put, I do not think a manufacturer should be able to escape liability for failing to give
a warning it was under a duty to give, by simply presenting evidence tending to establish that
even if the doctor had been given the warning, he or she would not have passed it on to the
patient, let alone putting an onus on the plaintiff to do so.”
“The ultimate duty of the manufacturer is to warn the plaintiff adequately. For practical reasons, the
law permits it to acquit itself of that duty by warning an informed intermediary. Having failed to warn
the intermediary, the manufacturer has failed in its duty to warn the plaintiff who ultimately suffered
injury by using the product.”
Sopinka J (dissenting):
 Agrees with what LaForest says about learned intermediary prcinple. Disagrees with principles relating
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to causation.
“In my view the so-called subjective test is inappropriate to determine whether Ms. Hollis would have
consented to the operation if properly warned. In addition, I cannot agree that Ms. Hollis need not
prove that any warning received by Dr. Birch would have been passed along by the doctor to his
patients. Finally, I disagree that this Court is in a position to resolve factual issues which were not
addressed at trial and which are vital to a determination of the liability of Dow
“In determining the second causation issue of whether Dr. Birch would have warned Ms. Hollis of the
risk of rupture if Dow had properly warned Dr. Birch about that risk, La Forest J. proposes to eliminate
the fundamental requirement of tort law that the plaintiff establish causation in order to prove the
defendant's liability.”
“If Dr. Birch would not have passed on information from Dow to Ms. Hollis, Dow's failure to provide the
warning cannot be said to have contributed to Ms. Hollis' injury. Liability cannot be based on failure to
take measures which would have no effect and be pointless.
Latimer article
From class:
Idea that judges are inventing evidence?
- Idea that he could have found a more effective pain medication to control his daughters’ pain
- Mitchell sees this as a danger of judges finding evidence on their own
TYPES OF INFORMATION THAT MAY BEAR ON AN ADJUDICATIVE DECISION:
WRT CONCLUSIONS OF FACT
Undisputed Facts, Evidence Relating to Material Facts, Evidence relating to circumstantial facts
(most of the next section is all about circumstantial facts)
Evidence relating to circumstantial facts:
Crispino v General Accident Insurance Co, QCCA, 2007
Facts: C owned a building. Someone set fire to the building. Insurance Co said it was him, and they
therefore didn’t have to pay him. C said he didn’t do it. C not consistent in his testimony. Lots of weird
conflicting things happened, bad investigation by police. Trial judge said C did it.
Issue: Did TJ make an error in assessment of evidence?
Holding: TJ applied the wrong principles in assessing the evidence (error of law) and also made errors
of mixed fact and law which were palpable and over-riding.
Reasons:
 Arts 2846 and 2849 cover proof by inference and presumptions
 “Proof by inference involves a process of examining known facts and determining whether on
the basis of these facts…. Must be serious, precise, and concordant” (para 38)
 TJ erred in drawing the conclusion that appellant set the fire because the presumptions
flowing from the facts on which she relies are not serious, precise and concordant” (para 40)
 The facts:
 The origin of the fire: TJ said bc he had done repairs there recently he knew where to set the
fire. But why would he do repairs before setting a fire? Also, he had already rebuilt the place
once, probably knew where to set a fire.
 The Key: There was a key stuck in the door of the apartment where the fire was set. C didn’t
have a good story of whose key that was or why it was there. This is mysterious, but not
enough to decide he did it.
 The last visit to the apartment: C gave conflicting accounts of when and why he was last in the
apartment. CA says while this may say something about credibility and reliability of witness, it
does not have probative value as to the fire
 The empty apartment: C had just fixed up an empty apartment to start renting it out. Why
would he do that (to the tune of $1500) if he was just going to burn it down?
 Store rent: C immediately asked his tenant for back rent. This might have been in bad taste
(since tenant’s store just burnt in C’s building) but not relevant
 What C did when he heard of the fire: TJ thought it was weird he didn’t rush immediately to
the scene. Instead he had a coffee and a cigarette and fed his infirm wife breakfast. CA
doesn’t think there is anything wrong with this behaviour.
 Reaction to recording: There was a recording of a 911 call the police thought was C because it
“sounded Italian”. C said it wasn’t Italian at all, and in any case it wasn’t him. (PS he is
Turkish). CA doesn’t think there is anything relevant here, particularly since police appeared
satisfied it wasn’t him.
 It was the insurance co who had the burden of proof to show C did it.
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Polygraph: C offered to take a polygraph, then recanted, on the advice of his lawyer. CA sees
nothing improper in this.
TJ ignored some relevant stuff:
No motive, C not in financial difficulty, owned the building next door which was put at risk by
the fire,
Judgment does not refer to 2849 and TJ does not appear to have applied the serious, precise,
concordant, standard.
Clouthier v The Queen, [1979] 2 SCR 709
Facts: C was accused of importing marijuana in a dresser. Prosecution wanted to include evidence
from his house showing that he was a user of marijuana. Evidence was: paraphernalia in the house
(which was allowed); and a “certificate of analysis” lab report showing that some stuff found in the
house was marijuana (excluded).
Reasons: Pratte J: Admissible evidence is that which is (1) relevant, and (2) not excluded by some kind
of rule. What is relevant will be decided by logic and human experience. “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 wrt the latter.
 “evidence is not admissible if its only purpose is to prove that the accused is the type of man
who is more likely to commit a crime of the kind with which he is charged”
 Mayrand JA observed that it was relevant in proving mens rea
 “the question to be resolved in the case at bar is whether the fact that the accused uses
marijuana creates a logical inference that he knew or ought to have known that the dresser
contained a narcotic at the time it was imported. To me there is no connection or nexus
between either of these two facts.”
 “This is not a situation where the prosecution may try to rebut a possible defence; rather, it
must try to prove one of the essential elements of the crime attributed to the accused”
Pigeon J (in dissent):
 Levac v the Queen: showing that someone is a drug user might be relevant in order to
disprove the defence that they didn’t know what they were doing, that they innocently took
a bag across the border for someone else with no suspicion.
 “In cases of this kind, the guilty intent ordinarily cannot be established by direct evidence,
and it is therefore necessary to admit in evidence every bit of circumstantial evidence. In the
case at bar, I find a clear connection between the fact that the accused was a user of
prohibited narcotic and the presence of a quantity of that narcotic concealed in a piece of
furniture that was imported from country in which this narcotic is produced”
Class notes:
R v Seaboyer; R v Gayme, SCC 1991
Anderson (Guardian ad litem of) v. Erickson BCCA 1992
Facts: Anderson failed to stop a stop sign in Maple Ridge, was hit by a 5-ton truck, and suffered
serious injuries. He doesn’t remember the accident. He claims that the city of Maple Ridge was
negligent because: (1) the stop-sign was placed too far away from the road so as to be visible, (2) the
road markings on the road implied it was a through-road, and (3) there was no stop-line painted on
the road. He had the evidence of a traffic expert (but Defence had a conflicting opinion from their
traffic expert) and the evidence of the investigating police officer supporting his claim. He wanted to
include the testimony of a guy (Arcand) who lived at the corner. Arcand would have said that he had
seen lots of accidents at that corner, that some months after Anderson’s accident the city moved the
stop sign to a location closer to the road, and that since then there had been no accidents. The TJ
excluded the evidence. Note: this was a jury trial.
Issue: Was the Tj correct to exclude the evidence? [No, a new trial should be held]
Reasons: First, determine if the evidence was relevant, then determine if it is excluded by a rule.
Was it relevant?
 “Evidence is relevant if it is logically probative of either a fact in issue or a fact which itself is
probative of a fact in issue.”
 Determining whether the stop sign was visible was an essential first step in proving fault.
Therefore, the evidence was logically probative.
Was it excluded by a rule?
 First possible rule: Wigmore’s rule excluding evidence of repair undertaken by a defendant
after an injurious accident. Rationale of this exclusion is that (1) evidence of repair is not, by
itself, evidence that the conditions before repairs caused the accident, and (2) it would create
a disincentive for owners to undertake repairs.
 The Court does not agree with the first rationale, because it is based on a very strict standard
of relevance, and Cdn courts do not follow that (Wigmore’s) standard. Instead, we follow
Thayer’s rule: “applies principles of logic and common sense to determine relevance” and
“admits all evidence logically probative of a fact in issue, reserving for the court only a narrow
discretion to exclude for reasons of policy or fairness”.
 Second possible rule: general discretion of court to exclude evidence if its prejudicial effect is
greater than its probative value.
 “There is no doubt that a Judge trying a civil case in Canada has a discretion to exclude
relevant evidence on the ground that its prejudicial effect outweighs its probative value. . .
What is less clear is under what circumstances that discretion should be exercised” (not really
an exclusionary rule)
 Should make sure it is not oppressive or unfair to the other side. The exact scope of discretion
can be dealt with another day, but in any case it was exceeded in this case.
 TJ erred in excluding the evidence.
Notes: TJ should have held a voir dire in this case, but didn’t. In a jury trial, a voir dire is when a Judge
excludes the jury but hears the evidence so that there is a record the court of appeal can later review.
 Second note: more and more judges are taking evidence “under reserve”, meaning they will listen
to it, and decide later whether or not to consider it.
Fontaine v BC 1998 SCC
Facts : Fontaine and Loewen went hunting on a stormy weekend. Their truck went off the road and
was swept down a flooded stream. Their bodies were found two months later. Fontaine’s wife is
claiming compensation. The insurance company is trying to say that Loewen (the driver) was
negligent. There is no evidence one way or the other, really. The tires were a bit bald. Driver was
found wearing seat belt. Investigating officer says they could have hydroplaned, they could have
swerved to avoid an animal, and they could have had a flat, all of which could have caused them to go
off the road, given the weather conditions. Ins co invokes res ipsa loquitur, a rule that says in the
absence of evidence to the contrary, a driver will be presumed negligent if that driver goes off the
road (idea being that in ordinary circumstances, most drivers won’t go off the road unless they are
negligent).
Judicial History : TJ says appellant had not proven that driver negligence contributed to accident.
Rejects application of RIL. Majority of CA said RIL doesn’t apply because the weather and road
conditions were such that “the accident could not be said to have happened “in the ordinary course
of things””. Dissent said there was no other explanation for the car leaving the road, other than driver
negligence, whether or not one applies RIL.
Issue : (1) When does res ipsa loquitur apply? (2) What is the effect of invoking RIL?
Holding: TJ did not err in her judgement that negligence had not been proven, appeal dismissed. Also,
RIL no longer applies.
Reasons:
When RIL applies


Res Ipsa Loquitur = “the thing speaks for itself”
Doctrine applies when: (1) the thing that inflicted damage was under control of the
Defendant, (2) the occurrence is such that it would not have happened without negligence,
and (3) there must be no evidence as to why or how the occurrence took place.
 The question that must be asked is “whether, in the particular circumstances established by
the evidence, the accident would ordinarily occur in the absence of negligence”
Effect of application of RIL
 The invocation of RIL does not shift the burden of proof from the D to the P. It just means that
circumstantial evidence can be treated as reasonable evidence.
 “If the D produces a reasonable explanation that is as consistent with no negligence as the RIL
inference is with negligence, this will effectively neutralize the inference of negligence and
the plaintiff’s case must fail.” (para 24)
Para 26: “Whatever value RIL may once have provided is gone.”
Para 27: “It would appear that the law would be better served if the maxim was treated as expired
and no longer used as a separate component in negligence actions”
 Better for trier of fact to just weight the circumstantial evidence with the direct evidence and
figure out, on a BofP, if plaintiff has made their case.
Application to this case:
 There was not enough evidence of negligence. TJ was right. Case dismissed.
Ratio: RIL is no longer a legal doctrine to be used.
Mandatory Inferences: Presumptions of Law
BNC v Soracchi (10 p)
Facts: The bank is claiming fraud in the division of matrimonial assets between Camille Bitar
(husband) and Silvana Soracchi (wife). Bitar moved to Kuwait and left his wife and daughter in
Canada. A couple years later he filed for divorce. She filed a divorce claim against him for a bunch of
their assets. They drew up a divorce settlement agreement where he transferred all of his assets
(house, car, RRSPs, investments, cash, and excepting $16,500 which he kept) to her (possibly in
exchange for not paying ongoing spousal support? The documents included the line: “the parties have
entered into the present agreement based on the financial disclosure as produced into the court file and this
agreement and hereby agree not to hold their respective attorneys responsable for any further legal inquiring
into the financial situation of the other party”. The settlement also included a line about each party being
solely responsibel for any outstanding debts. Bitar had a $25,000 line of credit out at the BNC. Bank
relies on art 1632 CCQ. Says a contract is made with the intention fo commiting fraud where the
creditor knew the debtor was insolvent. They say all they have to do is show that Silvana knew her
husband was insolvent and their divorce settlement would be null.
Issue:
Reasons:
First have to show that Silvana knew Bitar was insolvent. The evidence shows that Bitar was
insolvenet and Soracchi must have known about it. Bank says this is an irrebutable presumption and
the case is closed at this point. But the Court is convinced that Soracchi is in good faith. Cites a bunhc
of doctrine and says it would make no sense if you didn’t have to have bad faith for this to apply.
Chamberland J (in dissent):
The legislator knew what it was doing, and it didn’t intend for bad faith to be necessary.
Graat v the Queen, [1982] 2 SCR 819
Facts: Graat was driving home from an event. He claimed to have had 2 gin in the afternoon and 2
glasses of wine. He said he was tired. Police observed him swerving all over the road, staggering,
smelling of alcohol, unable to stand upright, etc. He said he had a heart condition and asked to be
taken to the hospital. When returned, it was too late to do breathalyzer test. He was charged with
impaired driving. Officers offered evidence that in their opinion he was impaired by the use of
alcohol. Graat’s buddy Wilson said he thought Graat was ok to drive.
Judicial History: TJ allowed the evidence, preferred the evidence of the police officers to Wilson, and
found him Graat guilty. ONCA said the evidence was admissible under an exception rule.
Issue: can non-expert witnesses offer opinion evidence
Holding: TJ was correct in admitting the opinions of the police officers and Wilson. Appeal dismissed.
Reasons: Begins with a Review of case law from Canada, England, Ireland, Australia, New Zealand,
showing that courts have been conflicted, holdings are a mess.
Review of Doctrine: Cross on Evidence says that opinion, if offered as a way of giving evidence on
facts, can be admissible. Wigmore on Evidence says …
Law Reform Commission Reports. LRC of Canada has proposed an opinion rule based on facts
perceived by the witness and on “helpfulness”.
Basically, there are lots of opposing opinions.
 “we start with the reality that the law of evidence is burdened with a large number of
cumbersome rules, with exclusions, and exceptions to the exclusions, and exceptions to the
exceptions”
 The line between “fact” and “opinion” is actually not so clear, so insisting on it may not be
helpful. Therefore, a return to broad principles is in order. Admissibility is determined by (1)
relevance and (2) if it should be excluded on a clear ground of policy or law.
 In this case, the opinion is clearly relevant. Not outweighed by considerations like confusing
or misleading the jury, unfairly surprising the other party, or taking too much time. The
witnesses had personally observed Mr. Graat and were in a position “to give the Court real
help”. “I can see no reason in principle or in common sense why a lay witness should not be
permitted to testify in the form of an opinion if, by doing so, he is able more accurately to
express the facts he perceived.”
 It would be hard for an individual to just testify as to what they observed without also saying
that they thought the guy was impaired.
 This is not something that requires specialized knowledge.
 “In short, I know of no clear ground of policy or of law which would require the exclusion of
opinion evidence tendered by the Crown or the defence as to Mr. Graat’s impairment”
 Two caveats: TJ must exercise discretion in deciding what is admissible; may be a tendency
for judges and juries to let police witness opinion overwhelm evidence of other witnesses,
but they should try to avoid doing this. There is no reason to prefer police evidence over
other evidence. For example, in this case, Wilson was just as qualified to offer evidence as to
Graat’s ability to drive as the police officers.
Ratio: In cases where testimony on facts is hard to separate from testimony on opinion of the facts
(like emotional state of a person, age of a person, or whether or not someone was impaired by
alcohol), the opinion evidence is admissible.
R v DD, 2000 SCC
Example of application of Mohan test.
5-6 year old was sexually assaulted. She didn’t tell anyone about it until 2 years after. At trial,
complainant was 10, and defence suggested she didn’t tell anyone for so long because she made the
story up.
• Expert testimony said this didn’t make any sense, the evidence was accepted by the trial
judge, jury found guilty verdict.
• The CA held the evidence should not have been accepted as it was neither necessary nor
relevant and said there would be a new trial. The issue now is whether or not the expert
evidence should have been admitted (answer, no) and if it should be present at the new trial
(answer, no)
• Main argument to not include: the evidence given (that everyone reacts to sexual assault
differently, and a delay (on its own) will not inversely infer the complainant made it up) is not
specialized evidence enough to require an expert
•
Main argument to include (McLachlin, HB, Gonthier’s dissent on the merits): The
psychologist’s evidence was admissible because it met the test for admitting expert evidence
set out in Mohan that requires relevance, necessity, the lack of any other exclusionary rule
and a properly qualified expert. Its probative value also outweighed its prejudicial effects.
These criteria are case-specific and factual.
Dissent
• Recap of the 4 requirements for expert testimony (Mohan): relevance, necessity, absence of
an exclusionary rule and qualified expert
• the problem is the expert is saying non-disclosure is not diagnostic; defence claiming
“because she didn’t tell anyone, it certainly did not happen”
o Thus the evidence is relevant to the delay of disclosure (given the defence’s position
that the jury could draw a “common sense” inference from the delay that the
complainant had fabricated the story) [para 8]
• The CA however argued that it was not relevant. To be relevant, evidence must be directed to
establishing a fact in issue. Here the evidence was relevant to the complainant’s credibility,
not to a fact in issue.
• The CA argued it was also unnecessary, since it dealt with a matter within the knowledge and
experience of the ordinary juror
• in addition, the CA found that the prejudicial effects outweigh the probative value, and called
for new trial
• Appellate courts owe deference to first instance court decisions to accept or reject expert
testimony [para 13] but does not preclude appellate review
• Mohan requires a case-by-case conceptual analysis. An expert testimony in one case saying
delays of disclosure mean nothing does make it true in every case. “The trial judge erred if he
took comments in Marquand as indicating a matter of stare decisis that expert evidence on
disclosure always meets the necessity test [para 14]
• The trial judge found the expert’s evidence relevant to a fact in issue (the child’s delay in
reporting)
o the CA, by contrast, held the evidence was not relevant to a fact in issue, only
relevant to claimant’s reliability
o Dissent feels that the evidence was relevant to a fact in issue, as the entire trial turns
on the credibility of the complainant [para 17]
• issues of fact include both facts and logical inferences which may or may not be drawn
therefrom. For the purposes of determining relevance, it does not matter whether the
inference is made by counsel, drawing on “common sense”, or with the assistance of expert
evidence [para 18]
•
the CA reasoned that the expert’s evidence should be excluded because it represented a
“blatant attempt to bolster the credibility of the only witness the Crown had to the alleged
assault” but
o actual credibility of a particular witness is not generally the proper subject of opinion
evidence (R v Beland, Marquard) [para 19]
o known as the “rule against oath-helping”
o Marquand “there is a growing consensus that while expert evidence on the ultimate
credibility of a witness is not admissible, expert evidence on human conduct and the
psychological and physical factors which may lead to certain behaviour relevant to
credibility, is admissible, provided the testimony goes beyond the ordinary
experience of the trier of fact
• “it follows that an issue in fact can almost always be reformulated in terms of credibility. This
does not necessarily preclude admitting expert testimony. Provided the evidence does not
directly address the issue of credibility simpliciter, it may be found to be relevant, even where
the expert’s testimony may increase or diminish the credibility of the witness” [para 20]
•
•
•
•
•
when it comes to necessity, the question is whether the expert will provide information
which is likely to be outside the ordinary experience and knowledge of the trier of fact (Burns,
Mohan, lavallee)
o it must be more than merely helpful, but must nonetheless not be judged on too
strict of a standard [para 21]
is it beyond the knowledge and experience of a jury to know that non disclosure does not
always infer it didn’t happen? Dissent says yes, defence/CA says no
o dissent highlights that the expert provided insight into WHY a child might not
disclose, which a regular jury might not know [para 24]
o which mainly is that there is no NORMAL child response time – some disclose right
away, some after a long time, some never
the accused had 3 arguments against necessity:
o (1) it is not abnormal science it is behavioural science which all regular people no
(dissent said this was a categorical approach to the flexible Mohan test and could not
work)
o (2) the expert’s evidence on delay was not needed because the child herself testified
to why she delayed (the fact that the complainant testifies has never precluded a trial
judge from accepting more evidence)
o (3) Whatever knowledge the jury was missing, the trial judge could have filled in for
them (although this is true, it is up to the trier of fact to decide if his jury instruction
would achieve the same purpose as the expert evidence) [para 31]
i.
although the judge could have simply told the jury that not disclosing
immediately afterwards does not guarantee the complainant is lying, the
judge could not have given reasons about why children delay, like the expert
did.
ii.
Furthermore, the expert can be cross examined, putting the jury in a better
position to examine the issue of delay in disclosure
the only exclusionary rule brought up was the one that expert’s cannot testify on the ultimate
issue of credibility. This was not a problem because the expert testified on an issue that was
subsidiary to the complainants credibility [para 34]
The accused argues that the probative value of the evidence was outweighed by two
important prejudicial effects:
(1) that Dr. Marshall’s evidence would neutralize a legitimate line of argument and interfere with his
right of self-defence;
o No. The testimony does not prohibit defence counsel from making it’s “she waited so
it didn’t happen” inference. The expert’s evidence merely counters this inference)
(2) that Dr. Marshall’s evidence would distort the trial process through the undue weight the jury may
place on expert evidence.
• this second concern deserves a bit more thought because the jury may be tempted to avoid
engaging in serious consideration of actual facts instead rely on the apparent expertise of the
scientist [para 39]
• Part of this concern is addressed at the necessity stage (must show it is beyond the normal
knowledge/evidence of the jury), but even if the expert evidence may assist the judge or jury,
the benefit must be balance against its costs [para 40]
o Can the expert address the issue in understandable terms?
o Is the judge or jury likely to take the expert’s word as unchallengeable truth, or will
the trier of fact be able to examine it critically?
o At the same time, the judge must not underestimate the ability of jurors to assess
evidence (they may be able to figure it out own their own, as long as it is in clear
language)
•
the expert testified in clear, easy to understand language, avoided hard scientific terms,
evidence was easy to understand and evaluate, his testimony did not verge on advocacy, nor
did he use his credentials to bolster his credit (Beland), he neither implicitly or explicitly
comment ended on the complainant’s credibility, and all this was true when he was cross
examined [para 41] so the accused’s argument doesn’t hold, and the trial judge did NOT err in
holding that the probative value of the expert evidence outweighed its prejudicial effects
Majority (Iacobucci, Major, Binnie, Arbour JJ)
• expert did not interview the complainant, so his testimony was general to all children [para
44]
• Majority feels the evidence tendered by the Crown does not meet the necessity requirement
of Mohan
• Repeats that the requirement of necessity exists to ensure the dangers associated with expert
evidence are not lightly tolerated (not just helpful – must be necessary)
• Majority respects dissents belief that deference is owed to the trial judge’s determination of
necessity, but holds that “discretion cannot be used to erroneously to dilute the requirement
o necessity” [para 47]
• expert evidence must be necessary in order to allow the fact finder:
(1) to appreciate the facts due to their technical nature, or;
(2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without
the assistance of persons with special knowledge. [para 47]
• Sopinka in Mohan “the need for expert testimony must be assessed in light of its potential to
distort the fact-finding process”
• History of Why We Do/Do Not Accept Expert Testimony
• A basic tenet of our law is that the usual witness may not give opinion evidence, but testify
only to facts within his knowledge, observation and experience. This is a commendable
principle since it is the task of the fact finder, whether a jury or judge alone, to decide what
secondary inferences are to be drawn from the facts proved. [para 49]
• But Comlaw courts have recognized, since the 14th century, sometimes the need for
specialized testiomy, due to the technical nature (R v. Abbey 1982)
• acknowledging there are exceptions does not eliminate the dangers associated to it, they are
just tolerated
• The “professional expert witness” has long since replaced the neutral “friend of the court”
(rather than being chosen by one side or the other)
o although they are not biased in a dishonest sense, these witnesses frequently move
from the impartiality generally associated with professionals to advocates in the case
[para 52]
• the primary danger arising from the admission of any opinion evidence is that the province of
the jury might be usurped by that of the witness [para 53]. Especially if they are an expert
with credentials, jurors might just abdicate their role as fact finders and simply choose the
opinion of the expert
• “expert evidence is highly resistant to effective cross-examination by counsel who are not
experts in that field” (I don’t know how much I agree with this…)
• Expert opinions are usually derived from academic literature and out-of-court interviews,
which material is un-sworn and not available for cross-examination [para 55]
o Though not properly admissible as evidence for the proof of its contents, this material
finds its way into the proceedings because “if an expert is permitted to give his
opinion, he ought to be permitted to give the circumstances upon which that opinion
is based” (R. v. Dietrich)
• Finally, expert evidence is EXPENSIVE and TIME CONSUMING
•
Ultimately, the majority finds that the content of the expert evidence admitted was not
unique or scientifically puzzling, but was rather the proper subject for simple jury.
•
•
•
•
Majority is saying that “just because a child doesn’t disclose right away doesn’t mean it didn’t
happen, they disclose at different times” is something obvious that the judge could have just
told the jury.
o “Given that the statement of principle expressed by the expert testimony reflects the
current state of Canadian law, it could and should have been included in the trial
judge’s instructions to the jury” [para 64]
(for a long time in Comlaw, if a woman who was raped did not immediately raise a “hue and
cry” and go to the police/court immediately in her bloody and ripped dress she had no legal
recourse. Sigh) [para 61]
“In assessing the credibility of a complainant, the timing of the complaint is simply one
circumstance to consider in the factual mosaic of a particular case. A delay in disclosure,
standing moment will never give rise to an adverse inference against the credibility of the
complainant.” [para 65]
It was submitted that it is preferable to introduce the concept contained in Dr. Marshall’s
evidence to the jury by way of expert testimony rather than by judicial instruction. In my
view, this argument is flawed. There is nothing to be gained from a cross-examination of the
simple and irrefutable proposition advanced in this case by the expert. As well, there is no
benefit to be derived from the flexibility of expert evidence since the nature of the
proposition does not lend itself to future advancements in knowledge and understanding.
o A jury instruction, in preference to expert opinion, where practicable, has advantages.
It saves time and expense. But of greater importance, it is given by an impartial
judicial officer, and any risk of superfluous or prejudicial content is eliminated.
R v Mohan, 1994 SCC
Case about admission of expert evidence
Facts: Respondent sexually assaulted four female patients. He wanted to call a psychiatrist to testify as an expert –
showing that his characteristics did not fit the psychological profile of the perpetrator of the offences.
Issue: Should the expert evidence presented by the psychiatrist be admitted?
Holding: No.
Reasoning:
Expert evidence in general
Admission of expert evidence depends on the following four criteria:
(a) relevance – threshold, question of law
(b) necessity in assisting trial judge/jury – expert evidence must pertain to something that is outside of their
knowledge or experience
(c) absence of any exclusionary rule
(d) proper qualification of the expert
In any case, expert evidence should not be admitted if it can influence the trier of fact “out of proportion to its
reliability”, if it can be misused or is likely to distort the fact-finding process [recurrent theme of concern for a fair
trial?]. Furthermore, if expertise pertains to a novel scientific theory/technique, then extra scrutiny (the 4-criteria
test is stricter).
Expert evidence as to disposition (“character evidence”)
Before an expert evidence as to the disposition is admitted, the trial judge must be satisfied (matter of law) that
either the “perpetrator of the crime or the accused has distinctive behavioural characteristics such that a
comparison of one with the other will be of material assistance in determining innocence or guilt”. Applying the
above 4-part test (rules relating to character evidence in light of the expert evidence criteria):
(a) relevance – finding that the scienti. community has developed a STANDARD profile for the offender who
commits a given type of crime
(b) necessity in assisting trial judge/jury – finding that the scienti. community has developed a STANDARD
profile for the offender who commits a given type of crime
(c) absence of any exclusionary rule
(d) proper qualification of the expert
“[...] in order to be relevant on the issue of identity the evidence must tend to show that the accused shared a
distinctive unusual behavioural trait with the perpetrator of the crime” [emphasis added] => person who
committed sexual assaults could not be said to belong to a group with sufficiently distinctive characteristics , so
these characteristics cannot be of any assistance in this case
In addition, nothing in the record suggested that the profile of a paedophile or a sexual psychopath matched the
profile of the offender who committed the offences. Thus, testimony given by experts found to be irrelevant and
unnecessary. Judge or jury could have assessed the offences without expert help.
Hence these circumstances, expert evidence for the purpose of comparing psychological profiles should not be
admitted.
Ratio: The above tests.
Comments:
Remember what the prof said in the second class... the typical profile of a judge (poli-sci background,
male, 40 year old, similar life experiences, etc.).
- the requirement that expert evidence be relevant and necessary (i.e.: the judge absolutely needs
to rely on expert otherwise she/he cannot decide) is a little bit disturbing.
o Relevance and necessity = questions of law. Who are judges to decide what is relevant
or necessary for them to know?!
Kumho Tire Co v Carmichael, SCOTUS 1998
Facts





On July 6, 1993, the right rear tire of a minivan driven by Patrick Carmichael blew out. In the
accident that followed, one of the passengers died, and others were severely injured.
In October 1993, the Carmichaels brought this suit against the tire's maker and its distributor,
whom we refer to collectively as Kumho Tire, claiming that the tire was defective.
Tire had a lot of use before blowout – 5yrs old. Tread dept that 11/32 of inch when new, worn
down to 3/32 of inch or less, two previous punctures which inadequately repaired
Hwr Plaintiff rested their case in significant part upon the depositions of a tire failure analyst,
Dennis Carlson, who intended to testify that, in his expert opinion, a defect in the tire's
manufacture or design caused the blow out rather than wear and tear.
o Argue defect caused separation of the tread of tire from inner steel-belted carcass
and this reason for blowout
o This opinion based on propositions that (1)separation is not caused by tire misuse
(“overdeflection”); (2) that if tire overdeflection were the issue there would be at
least two of four specific symptoms present
o Say that on this tire though symptoms somewhat present not enough to show
overdeflection significant
Def say that Carlson’s methodology not reliable and should be evaluated by test for expert
evidence from Daubert reliability factors. Court agree that evidence unreliable and that
Daubert apply
Issue
 Does Reliability and Daubert test apply to non-scientific experts?
Analysis
 Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to
"ensure that any and all scientific testimony . . . is not only relevant, but
reliable."

o This applies to all expert testimony not just scientific
Reasons (1) Experts have latitudes not given to other witnesses : ie experts may testify to
opinions, including those that are not based on firsthand knowledge or observation b/c
assumption of reliability of their opinion
o (2) dif distinguish scientific vs nonscientific expert

Daubert test : Trial judge must determine whether expert has “a reliable basis in the
knowledge and experience of [the relevant] discipline.
o Factors that judge may consider: (1) Whether a "theory or technique can be (and has
been) tested";
o (2)Whether it "has been subjected to peer review and publication";
o (3) Whether, in respect to a particular technique, there is a high "known or potential
rate of error" and whether there are "standards controlling the technique's
operation"; and
o (4) Whether the theory or technique enjoys "general acceptance" within a "relevant
scientific community”.
 Can also look at personal knowledge and experience,
 Test is flexible, list of specific factors does not apply to all experts in every case depends
nature of issue, subject experts testimony
 Court has latitude to decide how to test experts reliability and whether experts relevant
testimony is reliable
 Here court find expert unreliable not for lack proper training but because method of visual
and tactile inspection unreliable and lack scientific basis, too simple and subjective analysis,
o Not meet any of Daubert factors, and no other factors advanced as to why should rely
on his testimony
Holding: trial courts decision not to admit expert testimony was within its discretion and therefore
lawful
Ratio
 Reliability and relevance tests applies to testimony based on scientific knowledge, technical
knowledge and other specialized knowledge
 Discretionary test based on Daubert factors or others
Masterpiece Inc v Alvida Lifestyles, 2011 SCC 27
•
•
•
•
•
In this case, both parties operated in the retirement industry, albeit in separate geographic
regions.
Masterpiece Inc. ("Masterpiece"), first used the trade-mark MASTERPIECE in 2001 in Alberta,
with plans to expand into Eastern Canada in the future.
o Masterpiece also used the trade-marks Masterpiece the Art of Living" and
"Masterpiece the Art of Retirement Living", and by early 2006 had also started using
the mark MASTERPIECE LIVING.
In 2005, Alavida Lifestyles Inc. ("Alavida"), filed a trade-mark application based on its
intention to use the trade-mark MASTERPIECE LIVING.
o Alavida began using its mark in 2006, mainly in Ottawa, and a registration issued in
2007.
When Masterpiece attempted to file its own trade-mark applications for MASTERPIECE and
MASTERPIECE LIVING in 2006, registration was denied by the Registrar of Trade-marks due to
Alavida's previously filed application. Accordingly, Masterpiece applied to the Federal Court
to expunge Alavida's registration on the ground that Alavida's trade-mark was confusing with
Masterpiece's trade-mark at the time Alavida's application to register was filed, and that
Alavida was therefore not entitled to the registration pursuant to s 16(3) of the Trade-marks
Act (the "Act").
Section 16(3) of the Act provides that an applicant who files an application based on an
intention to use a trade-mark in Canada is not entitled to register that trade-mark if it is
confusing with a trade-mark that was previously in use in Canada, or for which an application
had already been filed, by another person prior to the applicant's filing date.
o Whether marks are confusing is determined by applying the test set out in s 6(5) of
the Act.
o
s. 6(5): In determining whether trade-marks or trade-names are confusing, the court
or the Registrar, as the case may be, shall have regard to all the surrounding
circumstances including
a) the inherent distinctiveness of the trade-marks or trade-names and the
extent to which they have become known;
b) the length of time the trade-marks or trade-names have been in use;
c) the nature of the goods, services or business;
d) the nature of the trade; and
e) the degree of resemblance between the trade-marks or trade-names in
appearance or sound or in the ideas suggested by them.
• Rights are granted to the first user of a trade‑mark in two ways under the Act.
1) First, under s. 16, a party normally gains a priority right to register a trade‑mark when
it first uses that trade‑mark.
2) Second, a user is also able to oppose applications, or apply to expunge registrations
based on its earlier use of a confusing trade‑mark.
• Section 16(3) of the Act recognizes the right of a prior user against any application for
registration based upon subsequent use. Masterpiece Inc. could apply to expunge Alavida’s
trade‑mark pursuant to s. 16(3) of the Act on the grounds of likelihood of confusion between
Alavida’s trade‑mark and any of its trade‑marks that had been in use before December 1,
2005 [para 36]
First Instance
• While the trial judge determined that Masterpiece had established some use of marks
containing the term MASTERPIECE prior to Alavida's filing date, that use was found to be
clearly limited in time and scope.
• In determining whether Alavida's mark was confusing with Masterpiece's marks, the trial
judge also considered how Alavida was actually using its mark post-registration, and
concluded that because the parties' services were relatively expensive, potential consumers
would be less likely to be susceptible to confusion because they would be unlikely to make
choices based on first impressions and would take considerable time to inform themselves
about the source of the services. No likelihood of confusion was found, and the application to
expunge was dismissed.
Federal Court of Appeal
• In dismissing Masterpiece's appeal of the applications judge's decision, the Federal Court of
Appeal appeared to emphasize the fact that Masterpiece and Alavida did not operate in the
same geographic region.
• The CA ultimately found no error with the application judge's reasoning, and dismissed
Masterpiece's appeal.
o However, the Supreme Court of Canada allowed Masterpiece's appeal, and ordered
the Registrar of Trade-marks to expunge Alavida's registration.
Problem: Uncertainty over the Confusion Test (SCC Clarifies)
• The Federal Court of Appeal decision created some uncertainty surrounding the test for
confusion; it was previously understood that for the purposes of assessing confusion under s
6 of the Act, the two marks in question are both assumed to be used in a hypothetical
marketplace and the existence of confusion is to be determined on the basis of assumed use
(Automaxi SA v UAP Inc, (1994) 59 CPR (3d) 82 (FCA)).
• However, the Federal Court of Appeal in Masterpiece v. Alavida suggested that it may be
relevant to consider that two trade-marks were not used in the same geographic area when
assessing the likelihood of confusion.
• The Supreme Court of Canada has now clarified that the test for confusion is indeed based
upon a hypothetical marketplace in which it is to be assumed that the trade-marks in issue
are used in the same geographical area irrespective of whether that is actually the case.
[para 30]
• The Court also stated that in order for a person to avail itself of the exclusivity afforded to a
registered trade-mark per s 19 of the Act, there cannot be a likelihood of confusion with
another trade-mark anywhere in Canada.
• The Supreme Court also endorsed the view that because the other factors in the test for
confusion are often unimportant if the marks are not identical or very similar, the confusion
analysis should begin with assessing the degree of resemblance between the trade-marks.
o With respect to assessing the degree of resemblance between a proposed trade-mark
and an existing unregistered trade-mark as a part of the test for confusion, the Court
held that the proper approach is to address the entire scope of exclusive rights and
potential uses that would be afforded to the proposed trade-mark and not to
consider how the applicant ultimately actually used its mark.
• para 35 “It is the use of a trade-mark and not registration itself that
confers priority of title and the exclusive right to the trade-mark.”
• para 53 “The trial judge erred in considering Alavida’s actual use of its
mark rather than addressing the entire scope of exclusive rights and
potential uses that were granted to Alavida under its registration”
o In comparing Masterpiece's mark "Masterpiece the Art of Living" to Alavida's mark
MASTERPIECE LIVING, the court concluded that the distinctive aspect of each party's
mark was the word MASTERPIECE and that both party's marks evoked the same idea,
namely high quality retirement lifestyle [para 64].
• With respect to the impact that the cost of a product or service should have on the confusion
analysis, the Court affirmed that consumers of expensive goods may be less likely to be
confused when they encounter a trade-mark, but clarified that it was improper to consider
that consumers of expensive wares and services would generally take considerable time after
first encountering the mark to inform themselves about the source of those wares and
services. The Court held that the proper approach was to assess confusion from the
perspective of the first impression of the consumer considering an expensive purchase when
he or she encounters one party's trade-mark and has an imperfect recollection of the other
party's trade-mark. The Court stated that although later research by the consumer might
clarify the situation, it does not mean that confusion did not exist initially. [“first impressions”
test established in Veuve Clicquot v. Boutique Cliquot para 41/67]
• The Court also stated that when conducting a confusion analysis, judges should consider
each mark as a whole, having regard to the most dominant/striking/most unique elements,
and use their own common sense to determine if a casual consumer having an imperfect
recollection of one mark would, as a matter of first impression, be likely to be confused
upon encountering the other party's mark. [para 83]
• Experts should only be permitted to testify if the evidence is likely to be outside the
knowledge and experience of the judge. [para 75]
•
The Court found that the expert evidence presented in this case did not assist with the
confusion analysis.
More Expert Evidence Stuff
• [75] Tendering expert evidence in trade-mark cases is no different than tendering expert
evidence in other contexts. This Court in R. v. Mohan, [1994] 2 S.C.R. 9, set out four
requirements to be met before expert evidence is accepted in a trial:
o (a) relevance;
o (b) necessity in assisting the trier of fact;
o (c) the absence of any exclusionary rule; and
o (d) a properly qualified expert.
•
•
•
•
•
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•
•
•
•
[80] Where the “casual consumer” is not particularly knowledgeable and there is a
resemblance between the marks, expert evidence that simply assesses that resemblance will
not usually be necessary (didn’t meet the second Mohan requirement of being necessary).
[78] This evidence took two forms: expert testimony adduced by Alavida on how a consumer
is likely to react when presented with the trade-marks, and a survey conducted by an expert
for Masterpiece Inc. which was heavily critiqued by an expert for Alavida.
[81] In this case, Alavida’s expert engaged in a discussion of morphology and semantics
instead of considering the marks as a whole. He also based his analysis on Alavida’s actual
post‑registration use, rather than the full scope of rights granted to Alavida under its
registration.
Masterpiece Inc.’s survey was similarly unhelpful because it attempted to simulate consumers
with an “imperfect recollection” when none was available. For this reason, the survey was
not a valid assessment of the relevant question. Judges should be careful to question the
necessity and relevance of such evidence, perhaps as part of a case management process,
particularly in light of the substantial cost of evidence that may be of little utility.
[93] Surveys have the potential to provide empirical evidence which demonstrates consumer
reactions in the marketplace — exactly the question that the trial judge is addressing in a
confusion case.
o This evidence is not something which would be generally known to a trial judge, and
thus unlike some other expert evidence, it would not run afoul of the second Mohan
requirement that the evidence be necessary.
o However, the use of survey evidence should still be applied with caution
[94] As Binnie J. noted in Mattel, often the difficulty with survey evidence is whether it meets
the first of the Mohan requirements: relevance. At para. 45, he further divided the question
of relevance into two sub-issues:
o As to the usefulness of the results, assuming they are elicited by a relevant question,
courts have more recently been receptive to such evidence, provided the survey is
both
i.
reliable: in the sense that if the survey were repeated it would likely produce
the same results) and
ii.
valid (in the sense that the right questions have been put to the right pool of
respondents in the right way, in the right circumstances to provide the
information sought).
[88] in General Electric Co v General Electric Ltd, Lord Diplock stated that here the market is
specialized, evidence about the special knowledge or sophistication of the targeted
consumers may be essential to determining when confusion would be likely to arise (but not
in this case)
[97] “While I would not absolutely foreclose the possibility that a party may devise a valid
survey in a case where a trade-mark user has not established a sufficient presence in the
marketplace for consumers to have formed an imperfect recollection of its trade-mark, I
would venture that it is highly unlikely that such a survey would meet the requirements of
reliability and validity.”
ACCESS TO JUSTICE [100] ”I would further suggest that it would be salutary to have a case
management judge assess the admissibility and usefulness of proposed expert and survey
evidence at an early stage so as to avoid large expenditures of resources on evidence of little
utility.”
ACCESS TO JUSTICE [103] briefly, the judge considers whether this case out to be given a new
trial, which could be feasible as in Hollis v Dow Cowning Corp, the “bulk of the critical
evidence adduced at trial was documentary, not testimonial” but given that it would “protract
the proceedings” the judge decides against it
Anderson, G.R., “Clear and Partial Danger: Defending Ourselves Against the Threat of
Expert Bias” 2004

Experts are supposed to be independent – this is a “cornerstone” of expert testimony. But
biased experts abound. And nothing is really being done about it. Two factors that cause this:
expert dishonesty, and adversarial attitudes and expectations
Our Adversarial System: Modern Feudalism
 Lawyers have the main responsibility to gather and sift through evidence, in contrast to
inquisitorial system. The idea is that the truth will emerge from two competing narratives, but
given the amount of game-playing and bull-shitting that goes on, this is questionable. Some
describe modern civil justice system as a mere replacement for old-fashioned feuds
Our Adversarial System: The Challenge of Evaluating Expert Evidence (p 4)
 System vulnerable to expert evidence bc that evidence is outside expertise of judges and
jurors.
 Marriage of science and law is an uncomfortable one.
Expert evidence dangers: the dangers (p 7)
 Problems listed by Sopinka J in R v Mohan: time to consider expert opinion; may be
misleading in its relevance and reliability; may be misused and distort fact-finding process;
scientific language may be considered infallible when it is not; when overwhelm and distract
fact-finding process; may be a personal opinion
 Major J in R v DD: lack of expert independence may contribute to miscarriages of justice.
Problems include: resistance to cross-examination; opinions usually derived from unsworn
material that the Court cannot examine; time-consuming and expensive
 In R v J-LJ, SCC told trial judges to evaluate admissibility of expert evidence using SCOTUS
Daubert rules, but no guidance on evaluating expert impartiality.
 SCOTUS in Daubert discussed problems of relevance and reliability, but also did not consider
impartiality.
 Kumho Tire: also did not consider expert bias.
 The threat of expert bias undermines public confidence in justice system and must be
defended against.
Expert Evidence Dangers: Expert Bias and Dishonest Experts (p 9)
 Some lawyers hire experts they know will include “junk” science in their reports. This is bad,
but not much is done about it.
Expert Evidence Dangers: Expert Bias and Adversarial Attitudes and Expectations (p 10)
 Participants expect evidence to be presented for the purpose of gaining advantage.
 Lawyers may only have a passing interest in the truth – more interested in the game
 Some experts genuinely view it as their role to advocate for their particular cause. These
experts are biased, but not necessarily dishonest. But they also might not present the
“whole” truth. Lawyers who use these experts may be slightly less blameworthy than lawyers
who use bad experts.
Enhancing Impartiality: Promoting Impartiality
 Woolf Report on access to justice – said a new system should be promoted emphasizing
expert impartiality.
 Potential experts should be educated as to their proper (impartial) role.
 Rules of procedure should be amended to clearly state that finding the truth is the
overarching purpose of the process (rather than speed, efficacy, or inexpensive process, for
eg)
 More use of court-appointed experts
 Lawyers should be re-oriented to their pre-eminent duty to the court, and away from their
adversarial/advocate role. They should have a duty to educate expert as to their impartial
role; have a good faith belief the expert is not biased, refrain from using the expert as an
advocate
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Judges should endorse the roles and rules advocated for in the Woolf report.
Judges should not be delicate in excluding expert evidence bc of bias. Judges could award
costs on the basis of mis-use of experts.
Other expert stuff:
Dr. Charles Smith: the man behind the public inquiry
http://www.cbc.ca/m/news/canada/dr-charles-smith-the-man-behind-the-public-inquiry-1.864004
Jugement Pinsonneault
QuebecCig062113_3ld(1)
R v RDS, [1997] 3 S.C.R. 484
Judicial notice “and judges being amateur sociologists”
Facts: A white police officer arrested a black 15-year-old in Halifax. The 15-year-old was charged with
interfering in the arrest of another person, resisting arrest, and assaulting a police officer. The kid
appeared in Youth Court. The kid’s story and the officer’s story about what happened were wildly
different. The only evidence before the court was the two conflicting testimonies. The Youth Court judge
found the kid more credible than the officer and acquitted the kid. In the process of delivering her oral
reasons, the judge made some comments that led the Crown to appeal her acquittal, saying her comments
gave rise to a reasonable apprehension of bias.
What she said: “The Crown says, well, why would the officer say that events occurred the way in which
he has relayed them to the Court this morning. I am not saying that the Constable has misled the court,
although police officers have been known to do that in the past. I am not saying that the officer
overreacted, but certainly police officers do overreact, particularly when they are dealing with non-white
groups. That to me indicates a state of mind right there that is questionable. I believe that probably the
situation in this particular case is the case of a young police officer who overreacted. I do accept the
evidence of [R.D.S.] that he was told to shut up or he would be under arrest. It seems to be in keeping
with the prevalent attitude of the day.
At any rate, based upon my comments and based upon all the evidence before the court I have no other
choice but to acquit.”
Judicial History: The Nova Scotia Superior Court ordered a new trial, and the NSCA upheld that
decision.
Issue: Did the judge’s comments in her reasons give rise to a reasonable apprehension of bias (RAB)?
Holding: No, appeal dismissed.
Reasons: Note: this is the one-liner version of the various justice’s reasoning. Longer versions (with lots
of quotes copied and pasted) are below.
The court splits in a bunch of confusing ways. I will try to summarize the important ways they split, but
will have more detail in the section below. (but everyone should read this case, it is super juicy)
Short form description:
Everyone agrees that impartiality is super important. Everyone also agrees that apprehension of bias must
be reasonable, as perceived by a reasonable person with knowledge of all the relevant facts and the social
reality that forms the context of the case. Cory J’s judgment outlines this test.
 However, 4 judges take this one step further, saying that considering the context is not only a part
of judging, but actually a necessary component to achieving true impartiality (see detailed notes
on LHD/McLachlin & Gonthier/LaForest judgments, below). They also make an interesting
distinction between judicial neutrality and judicial impartiality.
When applying the RAB test to the facts of this case, LaForest, Gonthier, LHD & McLachlin agree that
what the trial judge did was perfectly reasonable and a normal application of contextual judging. Cory and
Iacobucci say she should not have made the comments she did, that they came “very close to the line”, but
that given the context of the rest of the judgment, there is no RAB. (That means 6 judges dismiss the
appeal, though for different reasons). Sopinka, Lamer & Major disagree. They accuse the trial judge of
engaging in stereotyping of the police officer and say that she had no business talking about things that
were not submitted in evidence. They would uphold the appeal and order a new trial.
Decisions on the test for RAB (from headnote):
Lamer, LaForest, Sopinka, Gonthier, Cory, Iacobucci and Major say:
 Courts must be held to the highest standards of impartiality. RAB colours the whole process, so
even if the correct result was achieved, you still need a new trial.
 Impartiality can be described as a state of mind in which the adjudicator is disinterested in the
outcome and is open to persuasion by the evidence and submissions. In contrast, bias denotes a
state of mind that is in some way predisposed to a particular result or that is closed with regard to
particular issues.
 Apprehension of bias must be reasonable, as perceived by a reasonable person with knowledge of
all the relevant factors, including the social reality that forms the background to a particular case.
Real likelihood or probability of bias must be shown.
 Determinations of credibility are individualistic. When making findings, judges should avoid
making comments that imply that they are generalizing or stereotyping.
LaForest, L’Heureux-Dube, Gonthier, McLachlin say:
 Apprehension of bias must be reasonable, as seen by a reasonable person. The reasonable person
must know and understand the judicial process and the nature of judging. The reasonable person
understands that true impartiality comes from deliberations from individual perspectives, and a
full understanding of context. This is a process of enlargement that is a precondition for
impartiality. Understanding context is part of being an impartial judge.
Decision on application of the test to the facts of this case (from headnote):
LaForest, L’Heureux-Dube, Gonthier & McLachlin:
 The oral reasons should be read in their entirety. They show that the youth court judge made her
finding after considering the evidence before her.
 There is nothing wrong with what the Youth Court Judge said. She was engaging in the process of
contextualized judging. Her comments were an “entirely appropriate” recognition of facts in
evidence and the context of the case.
Cory & Iacobucci
 The YC Judge reviewed all the evidence before making her comments. The comments are
worrisome and close to the line, but not made in isolation. Have to consider everything else she
said. If you do so, a reasonable person would not find RAB.
Lamer, Sopinka, Major (dissenting):
 Trial judges must make findings based on the evidence before them. No evidence was introduced
to show this officer was racist, or that he lied. The YC judge’s statements were not a review of the
evidence, they were based on her own life experience. She was stereotyping the officer.
Long-form summaries of individual judgments:
Major J (dissenting, with Lamer CJ and Sopinka J):
 Para 3: “This appeal should not be decided on questions of racism but instead on how courts
should decide cases. . . . A fair trial is one that is based on the law, the outcome of which is
determined by the evidence, free of bias, real or apprehended. Did the trial judge here reach her
decision on the evidence presented at the trial or did she rely on something else?
 We should consider two points. (1) did the trial judge properly instruct herself on the evidence,
or was an error of law committed by her; (2) do her comments cause a reasonable observer to
apprehend bias? The offending comments in the statement are:
o (i)“police officers have been known to [mislead the court] in the past”;
o (ii)“police officers do overreact, particularly when they are dealing with non-white
groups”;
o (iii)“[t]hat to me indicates a state of mind right there that is questionable”;
o (iv)“[i]t seems to be in keeping with the prevalent attitude of the day”; and,
o (v)“based upon my comments and based upon all the evidence before the court I have no
other choice but to acquit.”
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Para 6: “She in effect was saying, “sometimes police lie and overreact in dealing with non-whites,
therefore I have a suspicion that this police officer may have lied and overreacted in dealing with
this non-white accused.” This was stereotyping all police officers as liars and racists, and applied
this stereotype to the police officer in the present case.” This makes it seem she is biased.
“Whether racism exists in our society is not the issue. The issue is whether there was evidence
before the court upon which to base a finding that this particular police officer’s actions were
motivated by racism. There was no evidence of this presented at the trial.”
Para 8: “In the same vein, statistics show that young male adults under the age of 25 are
responsible for more accidents than older drivers. It would be unacceptable for a court to accept
evidence of that fact to find a defendant liable in negligence yet that is the consequence of the
trial judge’s reasoning in this appeal.“
o NOTE: acquitting is not the same as convicting. This comparison is a bit false. -mrp
Para 9: . If the trial judge used the “prevalent attitude of society” towards non-whites as evidence
upon which to draw an inference in this case, she erred, as there were no facts in evidence from
which to draw that inference. It would be stereotypical reasoning to conclude that, since society is
racist, and, in effect, tells minorities to “shut up,” we should infer that this police officer told this
appellant minority youth to “shut up.”
TJ being challenged for making findings not based on evidence, and for having a reasonable
apprehension of bias (two separate problems). For the first problem: There was no evidence at
trial that the police officer was racist. For the second, the RAB test is objective: would a
reasonable person perceive a likelihood of bias. If so, the judge cannot sit and/or the judgment
cannot stand
o The important thing is the perception of bias, not actual bias
“The life experience of this trial judge, as with all trial judges, is an important ingredient in the
ability to understand human behaviour, to weigh the evidence, and to determine credibility. It
helps in making a myriad of decisions arising during the course of most trials. It is of no value,
however, in reaching conclusions for which there is no evidence. The fact that on some other
occasions police officers have lied or overreacted is irrelevant. Life experience is not a substitute
for evidence. There was no evidence before the trial judge to support the conclusions she
reached.“ (para 13) emphasis added
Our system is an adversarial system – it doesn’t allow judges to become independent
investigators seeking out facts.
Criticism re stereotyping: we have moved away from stereotyping rape victims, or prostitutes as
being more likely to lie. “Such presumptions have no place in a system of justice that treats all
witnesses equally”
o Mrp’s comments: this is another false comparison.
They keep making this point when talking about the elimination of the need for evidence of
corroboration in sexual assault cases. “The elimination of corroboration shows the present
evolution away from stereotyping various classes of witnesses as inherently unreliable. (para 17)
o Mrp’s comments: This is again a false comparison! In these cases, SA victims were
stereotyped as being unreliable. Here, black youth are stereotyped as being unreliable.
The judge is merely counteracting that existing stereotype by pointing out that police
officers are also capable of lying.
“It can hardly be seen as progress to stereotype police officer witnesses as likely to lie when
dealing with non-whites. This would return us to a time in the history of the Canadian justice
system that many thought had past. This reasoning, with respect to police officers, is no more
legitimate than the stereotyping of women, children or minorities” (para 18)
They agree with the RAB test that Cory put forward, but disagree with its application to the facts.
These guys would order a new trial
Gonthier J (with LaForest):
o Agrees with Cory, LHD & McLachlin re disposition of appeal (they would dismiss it).
o Agree with Cory, LHD and McLachlin re the test for RAB
o
Agree with LHD & McL “in their treatment of social context and the manner in which it may
appropriately enter the decision-making process as well as their assessment of the trial judge’s
reasons and comments in the present case.”
LHD & McLachlin JJ:
o Test for reasonable apprehension of bias comes from Grandpre J in Committee for Justice and
Liberty v. National Energy Board, [1978] 1 S.C.R. 369 (para 31)
o “. . . the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required
information.... [T]hat test is “what would an informed person, viewing the matter
realistically and practically -- and having thought the matter through -- conclude. Would
he think that it is more likely than not that [the decision-maker], whether consciously or
unconsciously, would not decide fairly.”
o Para 32: The scope and stringency of the duty of fairness articulated by de Grandpré
depends largely on the role and function of the tribunal in question
o Judges are presumed to be unbiased
o It is necessary to distinguish between impartiality and judicial neutrality
o No judge can be completely neutral, as every human person is shaped by her own
experiences and operate from her own perspective
o But impartiality should be possible: “...the wisdom required of a judge is to recognize,
consciously allow for, and perhaps to question, all the baggage of past attitudes and
sympathies that fellow citizens are free to carry, untested, to the grave” (para 35)
o “True impartiality does not require that the judge have no sympathies or opinions; it
requires that the judge nevertheless be free to entertain and act upon different points of
view with an open mind.”
o The presence or absence of bias “is evaluated through the eyes of the reasonable, informed,
practical and realistic person who considers the matter in some detail (Committee for Justice and
Liberty, supra.) The person postulated is not a “very sensitive or scrupulous” person, but rather a
right-minded person familiar with the circumstances of the case.” (para 36)
o On the nature of judging:
o Para 38: “As discussed above, judges in a bilingual, multiracial and multicultural society
will undoubtedly approach the task of judging from their varied perspectives. They will
certainly have been shaped by, and have gained insight from, their different experiences,
and cannot be expected to divorce themselves from these experiences on the occasion of
their appointment to the bench. In fact, such a transformation would deny society the
benefit of the valuable knowledge gained by the judiciary while they were members of
the Bar. As well, it would preclude the achievement of a diversity of backgrounds in the
judiciary. The reasonable person does not expect that judges will function as neutral
ciphers; however, the reasonable person does demand that judges achieve impartiality in
their judging”
o Judges must be aware of the context in which things occur
o “Judicial inquiry into the factual, social and psychological context within which litigation
arises is not unusual. Rather, a conscious, contextual inquiry has become an accepted
step towards judicial impartiality.”
o Para 44: “An understanding of the context or background essential to judging may be
gained from testimony from expert witnesses in order to put the case in context: R. v.
Lavallee, [1990] 1 S.C.R. 852, R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.), and Moge v.
Moge, [1992] 3 S.C.R. 813, from academic studies properly placed before the Court; and
from the judge’s personal understanding and experience of the society in which the judge
lives and works. This process of enlargement is not only consistent with impartiality;
it may also be seen as its essential precondition.”
o The reasonable person test would be based on a person who understands the context as
well. Para 48: “We conclude that the reasonable person contemplated by de Grandpré J.,
and endorsed by Canadian courts is a person who approaches the question of whether
there exists a reasonable apprehension of bias with a complex and contextualized
understanding of the issues in the case. The reasonable person understands the
impossibility of judicial neutrality, but demands judicial impartiality. The reasonable
person is cognizant of the racial dynamics in the local community, and, as a member of
the Canadian community, is supportive of the principles of equality.”
Cory J (with Iacobucci J)
Fair Trial and Right to Unbiased Adjudicator
 Para 91: “A system of justice, if it is to have the respect and confidence of its society, must ensure
that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a
fundamental goal of the justice system in any free and democratic society.”
 All adjucative tribunals owe a duty of fairness and must be impartial. Courts should be held to the
highest standard of impartiality.
 Canada is a diverse country and judges must give the appearance of being equally fair to every
race, religion, nationality, etc
What is Bias?
o “impartiality can be described -- perhaps somewhat inexactly -- as a state of mind in which the
adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and
submissions (para 104)
o “In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or
that is closed with regard to particular issues.” (para 105)
Judicial Integrity and the Importance of Judicial Impartiality
 Judges take an oath that requires them to render justice impartially.
 There is a presumption that judges will carry out that oath.
 Judges must be conscious of everything they say, as every statement will be weighed and
evaluated by the community as well as the parties.
 Para 119: “The requirement for neutrality does not require judges to discount the very life
experiences that may so well qualify them to preside over disputes. It has been observed that the
duty to be impartial does not mean that a judge does not, or cannot bring to the bench many
existing sympathies, antipathies or attitudes. There is no human being who is not the product of
every social experience, every process of education, and every human contact with those with
whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past
experience would probably lack the very qualities of humanity required of a judge. Rather, the
wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the
baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the
grave.
True impartiality does not require that the judge have no sympathies or opinions; it requires that
the judge nevertheless be free to entertain and act upon different points of view with an open
mind.
 Para 120: Regardless of their background, gender, ethnic origin or race, all judges owe a
fundamental duty to the community to render impartial decisions and to appear impartial.
Should judges Refer to Aspects of Social Context in making decisions?
 The answer will depend on the particular facts of a particular case.
 It is sometimes appropriate to refer to relevant social context – it was appropriate in Lavallee, for
eg.
o “In Lavallee, the references to social context were based on expert evidence and were
used solely to develop the relevant legal principle. In an individual case, however, it is
still the responsibility of the woman putting forward the defence to establish that the
general principles about women’s experiences of domestic violence actually apply”
 Para 127: In Parks and Lavallee. . . the expert evidence of social context was used to develop
principles of general application in certain kinds of cases. These principles are legal in nature, and
are structured to ensure that the role of the trier of fact in a particular case is not abrogated or
usurped. It is clear therefore that references to social context based upon expert evidence are
sometimes permissible and helpful, and that they do not automatically give rise to suspicions of
judicial bias.
o But they say this is different than using social context to help determine credibility
Use of Social Context in Assessing Credibility
 Assessing individuality is more of an art than a science. It is an individualistic exercise. When
making findings of credibility it is preferable for a judge to avoid making any comments that
would make it seem that the judge is generalizing, or making determinations of credibility on the
basis of generalizations, rather than on specific observations of the witness.
 Para 132: In some circumstances it may be acceptable for a judge to acknowledge that racism in
society might be, for example, the motive for the overreaction of a police officer. This may be
necessary in order to refute a submission that invites the judge as trier of fact to presume
truthfulness or untruthfulness of a category of witnesses, or to adopt some other form of
stereotypical thinking. Yet it would not be acceptable for a judge to go further and suggest that all
police officers should therefore not be believed or should be viewed with suspicion where they
are dealing with accused persons who are members of a different race. Similarly, it is dangerous
for a judge to suggest that a particular person overreacted because of racism unless there is
evidence adduced to sustain this finding. It would be equally inappropriate to suggest that female
complainants, in sexual assault cases, ought to be believed more readily than male accused
persons solely because of the history of sexual violence by men against women.
 Para 133: This does not mean that the particular generalization -- that police officers have
historically discriminated against visible minorities or that women have historically been abused
by men -- is not true, or is without foundation. The difficulty is that reasonable and informed
people may perceive that the judge has used this information as a basis for assessing credibility
instead of making a genuine evaluation of the evidence of the particular witness’ credibility. As a
general rule, judges should avoid placing themselves in this position.
Application of principle to the facts
 Para 142: At the outset, it must be emphasized that it is obviously not appropriate to allege bias
against Judge Sparks simply because she is black and raised the prospect of racial discrimination.
 She deserves the same high standard as any other judge. She is presumed impartial. Just because
she made an observation doesn’t necessarily give rise to RAB.
 She already had a reasonable doubt, before she made the challenged comments.
 But her remarks might give rise to questions about her impartiality. They come “very close to the
line”
o In particular, the remarks that police are more likely to overreact when dealing with POC,
and her remark about POC being told to “shut up” being the “prevalent attitude of the
day”
o It was perfectly ok to say that officers might mislead the court, and that they sometimes
overreact, but these other two comments are worrisome.
They come close, but they aren’t enough. “Her remarks, viewed in their context, do not give rise to a
perception that she prejudged the issue of credibility of generalizations, and they do not taint her earlier
findings of credibility.”
TYPES OF INFORMATION THAT MATTER WRT CONCLUSIONS OF LAW
Bodum USA, Inc. v. La Cafetière, Inc.
Facts
•
Plaintiff filed an action contending that the sale of any coffee maker similar to a design violated
plaintiff's common-law trade dress.
• Defendant contended that an agreement permitted it to sell the design anywhere in the world,
except France, provided that it did not use certain marks.
• The United States District Court for the Northern District of Illinois, Eastern Division, granted
summary judgment in defendant's favor. Plaintiff appealed.
Issue: does intent have more weight than the written words of the contract? NO
• “The agreement was clear and precise as it stood, and the negotiating history showed that it
meant what it said.”
•
Plaintiff insisted that, if the agreement meant what the court concluded it meant, then the
agreement was invalid as a "naked license" of a trademark. But plaintiff did not sell a naked
trademark to defendant.
Ratio: People are free to use contracts to allocate rights to products' designs
Analysis
• Plaintiff contends that, under French law, intent prevails over written word.
→ Article 1156 of the French Civil Code provides: "One must in agreements seek what the
common intention of the contracting parties was, rather than pay attention to the literal
meaning of the terms."
• Plaintiff wanted a trial to determine what the parties “intended”, and wants to bring in an
expert of French law
→ Although Fed. R. Civ. P. 44.1 provides that courts may consider expert testimony when
deciding questions of foreign law, it does not compel them to do so
• Although French courts are sometimes required to use foreign materials, most laws have a
standardized English version.
• Judges may use these accepted/official versions, OR they may also rely on secondary literature
such as treatises or scholarly commentary. Experts are NOT needed
• Posner J agrees with the majority, but writes separately to criticize experts even harder than the
majority did (lol).
• “When a court in one state applies the law of another, or when a federal court applies state law
(or a state court federal law), the court does not permit expert testimony on the meaning of the
"foreign" law that it has to apply (Sunstar, Inc. v. Alberto-Culver Co.,)
• judges may require expert testimony on technical or scientific stuff, but when it comes to law
judges are the experts, don’t need lawyers telling them how to apply the law in the context of
“expert” testimony
• using experts for legal interpretation “is excusable only when the foreign law is the law of a
country with such an obscure or poorly developed legal system that there are no secondary
materials to which the judge could turn.”
• Wood J agrees with the majority, but disagrees with the discussion on Fed. R. Civ. P. 44.1
→ “Rule 44.1 itself establishes no hierarchy for sources of foreign law, and I am unpersuaded by
my colleagues' assertion that expert testimony is categorically inferior to published, Englishlanguage materials.”
• he talks about “false friends” i.e., words that are the same in English and French but have
different meanings.
thinks it is faster to have a legal expert assist with translations on the spot rather than requiring judges
to “wade through secondary materials”
Foreign sources relied upon to interpret domestic law
Ordon Estate v. Grail
Facts: This case arises from four negligence actions in relation to two boating accidents. Family members
of victims [plaintiffs] are claiming for compensation under provincial compensation statutes. For the
purpose of this class, defendants argue that the provincial compensation schemes do not apply and that
the plaintiffs’ claims should have been brought pursuant to the federal maritime legislation instead
(Canada Shipping Act).
 (the two boating accidents arose in a maritime context, therefore there is disagreement over
whether provincial law or federal law should apply)
Issue: Do the provincial statutes apply to these compensation for maritime accidents claims?
See [66]: “The constitutional issue raised by the present appeals is whether a validly enacted provincial
statute of general application may be applied to deal with incidental aspects of a maritime negligence
claim that is otherwise governed entirely by federal maritime law”.
Holding: No, existing federal legislation can be reformmed to adapt to these claims instead of upholding
the application of provincial statutes.
Reasoning: To determine whether a provincial statute is constitutionally applicable to a maritime
negligence law claim => four-part test:
First three steps: pre-constitutional analysis
First: What is the matter at issue? Who has exclusive competence? Is it legitimately a maritime law
matter within federal competence?
[73] “whether the specific subject matter at issue in a claim is within the exclusive federal legislative
competence over navigation and shipping”
 If matter is legitimately one of Canadian maritime negligence law (and therefore if the claim
arguing for federal competence is legitimate), proceed to second step.
Second: Reviewing maritime law sources. Under Canadian maritime law, can the plaintiff bring his action
under a counterpart to the provincial statutory provision? I.e.: alternative to the provincial statute that
is currently relied upon? If no alternative, proceed to third step.
Third: Considering the possibility of reform. Can maritime law be reformed to adapt to plaintiff’s claim?
If it can, the provincial statute will be read down.
Constitutional analysis in the fourth step
Fourth: Constitutional law analysis – whether the provincial staute applies within the context of a
maritime law claim yadi yada... stuff we have seen in 1L (interjurisdictional immunity, etc.)
Application to the case at bar:
First step: Yes, matter legitimately one of maritime negligence law
Second: No alternative
Third: But maritime law might be reformed to adapt to plaintiffs’ claims. So the provincial statutes upon
which their actions rely should be read down.
Fourth: does not apply, since negative to third step.
Ratio:
Four-part test.
Legislative facts
Legislative facts distinguished from adjudicative facts
Problems relating to the proof of legislative facts
RJR MacDonald v Canada (AG), [1995] 3 S.C.R 199
Facts: Tobacco Products Control Act prohibits advertising and promotion and sale of tobacco products
unless package has health warnings and list toxics.
- RJR-MacDonald Inc. sought a declaration that the Act was wholly ultra vires Parliament and
invalid as an unjustified infringement of freedom of expression
- Imperial Tobacco Ltd. sought the same order, but only in respect of ss. 4 and 5 (advertisement of
tobacco products), and ss. 6 and 8 (promotion of tobacco products).
Issues
(1) whether Parliament had legislative competence to enact the Act under either the POGG or the
criminal law power, and
(2) whether the Act infringed the right to freedom of expression protected bys. 2 (b) of the Charter and,
if so, whether it was saved under s. 1 .
Legislative Competence
Majority overall: Parl has competence under Crim law power.
- ss. 4 (re advertising), 8 (re trade mark use) and 9 (re unattributed health warnings) of the Act are
inconsistent with the right of freedom of expression as set out is 2(b) of the Charter and do not constitute
a reasonable limit on that right as can be demonstrably justified pursuant to s. 1 thereof. La Forest,
L'Heureux-Dubé, Gonthier and Cory JJ. would find that they constitute a reasonable limit. Given that ss. 5
(re retail displays) and 6 (re sponsorships) could not be cleanly severed fromss. 4 , 8 and 9 , all are of no
force or effect pursuant to s. 52 of the Constitution Act, 1982 .
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory and Iacobucci JJ.: The legislation was
validly enacted under the criminal law power, accordingly unnecessary to consider whether it fell under
POGG
- The Tobacco Products Control Act is, in pith and substance, criminal law. Parliament's purpose
was to prohibit three categories of acts: advertisement of tobacco products (ss. 4 and 5 ),
promotion of tobacco products (ss. 6 to 8 ) and sale of tobacco products without printed health
warnings (s. 9 ). The penal sanctions accompanying these prohibitions created a prima facie
indication that the Act was criminal law.
- The Act also has an underlying criminal public purpose directed at some injurious effect upon
the public -- the detrimental health effects caused by tobacco consumption which were clearly
demonstrated by the attorney general at trial.
- "Health" is not an enumerated head under the Constitution Act, 1867 , and may be dealt with by
valid federal or provincial legislation depending on the circumstances and nature and scope of
the problem.
- Not colourable – purpose is to protect Canadians from serious health hazards of tobacco
consumption.
- The Act has the requisite "criminal public purpose" even though Parliament has not criminalized
the "evil" ultimately aimed at but rather an activity ancillary to the "evil". At this time not
practical to legislate against tobacco itself.
- Broad status-based exemptions in the law do not make it regulatory bot help define the crime by
clarifying its contours.
Per McLachlin J.: Parliament may impose advertising bans and require health warnings on tobacco
products under its criminal law power.
Per Sopinka and Major JJ.: s9 (requirement health warnings) within crim power but 4-6, 8 (no
advertising or promotion) not.
-The prohibition of conduct which interferes with the proper functioning of society or which undermines
the safety and security of society as a whole lies at the heart of the criminal law (this can include harmful
food, drugs and tobacco). Matters posing a significant and serious risk of harm or causing significant and
serious harm to public health, safety or security can be proscribed by Parliament as criminal. Lesser
threats to society and its functioning are addressed through non-criminal regulation.
- The objective of the advertising ban and trade mark usage restrictions is to prevent Canadians
from being persuaded by advertising and promotion to use tobacco products. The undesirability
of this form of expression does not pose such a grave and serious danger to public health as to
make it criminal, so act is not valid exercise crim power.
o Also broad exemptions indication that not valud use crim powers
Charter issue
2b analysis
Per La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: The prohibition on advertising and promotion
under the Act infringed appellants' right to freedom of expression under s. 2 (b.
Per Lamer C.J. and Sopinka, McLachlin, Iacobucci and Major JJ.: The prohibition on advertising and
promotion of tobacco products violated the right to free expression. Since freedom of expression entails
the right to say nothing or the right not to say certain things, the requirement that tobacco
manufacturers place an unattributed health warning on tobacco packages combined with the
prohibition against displaying any writing on their packaging other than the name, brand name, trade
mark, and other information required by legislation infringed this right.
S1 analysis
Majority Overall: The impugned sections were not justified under s. 1 of the Charter
Per Sopinka, McLachlin and Major JJ: Use civil standard of Balance of Probabilities in proportionality
analysis.
-
-
-
-
-
Deference to findings of fact by trial judge: Appellate courts generally are not as constrained by
the trial judge's findings in the context of thes. 1 analysis as they are in non-constitutional
litigation because the impact of the infringement on constitutional rights is often assessed by
reference to social, economic and political factors in addition to scientific facts.
The extent to which this Court should defer to the trial judge's findings depends on whether the
findings relate to purely factual matters or to complex social science evidence from which it is
difficult to draw firm factual and scientific conclusions.
o Here less deference should be accorded to the trial judge's finding that the complete ban
on advertising was not rationally connected to the aim of reducing advertising-induced
consumption. becase evidence adduced on this point was social science evidence
predictive of human behaviour from which it was difficult to draw firm factual
conclusions.
Find not minimal impairment based on trial judge findings:
o the trial judge did not rely on problematic social science data, but on the fact that the
government had adduced no evidence to show that less intrusive regulation would not
achieve its goals as effectively as an outright ban. Nor had the government adduced
evidence to show that attributed health warnings would not be as effective as
unattributed warnings on tobacco packaging.
Causal relation: where legsn about changing behaviour and no meansurable evidence possible,
use reason or logic to assess link on balance fo probabilities. Here find no causal connection
between goal of decreasing tobacco consumption and tool of prohibition on use tobacco
trademark so s8 fail test.
Min impairment: Complete ban on advertising fail min impairment because no proof that less
intrusive methods like partial ban would be less effective
Per Lamer C.J. and Iacobucci J.: The Tobacco Products Control Act did not minimally impair the
appellants' s. 2 (b) Charter rights.
- rational connection: Yes, est on civil standard Balance of probabilities through reason, logic,
common sense. existence of scientific proof is simply of probative value in demonstrating this
reason, logic or common sense but is by no means dispositive or determinative.
- Min impairment: evidence not provided on alternatives and why full prohibition necessary. This
evidence required for it to be justified
Per La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: The infringement was justifiable under s. 1
- evidentiary requirements under s. 1 vary substantially depending upon both the nature of the
legislation and the nature of the right infringed.
- The application of a "rigorous" civil standard of proof in lower courts resulted in a failure to take
into account the specific context in which the s. 1 balancing must take place.
- Overwhelming evidence of dangers of Tobacco consumption, but significant gap between an
understanding of the health effects of tobacco consumption and of the root causesof tobacco
consumption.
o Strictly applying the proportionality analysis in cases of this nature would place an
impossible onus on Parliament by requiring it to produce definitive social scientific
evidence respecting the root causes so courts allow greater degree of deference to
policy-decisions of social legislation than to ordinary criminal justice legislation,
- Normally appellate courts don’t interfere with trial judge factual findings. However the
privileged position of the trial judge to appreciate and weigh adjudicative facts does not extend
to the assessment of "social" or "legislative" facts that arise in the law-making process. So here
exception to general noninterference
Here find sufficient logal rational connection despite lack definitive proof, sufficient
evidence from internal tobacco marketing docs, expert reports and international
materials
Bedford, 2013 SCC 72
Reasons:
- Two good reasons to not review TJ decisions on social facts:
- 1. Would require appellate judges to undertake very time consuming task of reviewing all the
evidence. This would increase cost and delay
- 2. Social facts may be intertwined with adjudicative facts and asking judges to apply a different
standard to the two is asking an impossible task.
- Para 55: “It is suggested that no deference is required on social and legislative facts because
appellate courts are in as good a position to evaluate such evidence as trial judges. If this were
so, adjudicative facts presented only in affidavit form would similarly be owed less deference.
Yet this Court has been clear that, absent express statutory instruction, there is no middling
standard of review for findings of fact (H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1
S.C.R. 401).”
Ratio: para 56: “For these reasons, I am of the view that a no-deference standard of appellate review for
social and legislative facts should be rejected. The standard of review for findings of fact — whether
adjudicative, social, or legislative — remains palpable and overriding error.”
R. v. Spence, [2005] 3 S.C.R. 458
Facts: Spence is a black man accused of robbing and East Indian man. At trial, the defence wanted to
screen any East Indian jurors for potential bias against the accused because the victim was East Indian.
 In Parks a test was established where you could ask jurors: “Would your ability to judge the
evidence in the case without bias, prejudice or partiality be affected by the fact that the person
charged is ... black ... and the deceased is a white man?”.
 Defence wanted to ask: |Would your ability to judge the evidence in this case without bias,
prejudice or partiality be affected by the fact that the accused person is a black man charged
with robbing an East Indian person?”
The TJ said Defence could ask jurors about their ability to be impartial with regard to the accused’s race,
but not with regard to the victim’s race.
Issue: did the TJ’s refusal to allow questions to the jury regarding the “interracial” nature of the offence
deprive the respondent of his right to an impartial jury and therefore to a fair trial
Para 3: “The question before us is whether on the facts of this case the trial judge's refusal to permit the
"interracial" element of the Parks question deprived the respondent of his right to an impartial jury and
therefore to a fair trial. This, in turn, requires us to consider why the interracial nature of a crime may be
relevant to juror partiality. How does racial [page465] prejudice against East Indians, for which an
accused East Indian may be entitled to challenge potential jurors for cause, aggravate or compound
potential racial prejudice against a black accused? What, if any, is the link?”
Holding: No, the TJ was right. Conviction upheld.
Reasons: The decision in Parks was based on social science evidence that said that bias against black
accuseds was stronger when the individual “crossed the race line” and attacked a white person. Defence
is shifting the focus from bias against an accused to jurors having a “natural sympathy” for people who
share their race.
 Defence have included no evidence to support this.
 Judges have taken judicial notice (JN) of racial prejudice. But taking JN that a juror “might”
sympathize with a victim of their shared race seems to go a step farther.
 If “race-based positive sympathy” is something that we take serious consideration of, this could
have serious ramifications for future cases: does it apply only for race? Or also for gender,
religion, etc? What about juror bias towards accepting expert evidence from people of different
races?
 Historically, we have relied on the diversity of the 12 members of the jury to iron out these
biases

Binnie would allow the appeal, set aside the new trial ordered by the CA, and restore the
conviction of the TJ.
Further reasoning (re judicial notice generally):
 An intervenor, the African Canadian Legal Clinic, urged the court to take judicial notice of the
possibility for bias where the complainant was also a member of a visible minority. They refer to
rules of evidence that say that JN can be used wherever there is something that “everybody
knows” (Thayer’s view).
 There are at least three problems with this. (1) what “everybody knows” might be wrong. Before
Parks, “everybody” knew that jury instructions meant that a jury in Toronto wouldn’t be
affected by racial prejudice. (2) trial fairness is affected. How can parties who are prejudiced by
what ‘everybody knows” rebut the evidence, unless the evidence has a source? (3) judges
sometimes contradict each other about some ”fact” that “everybody knows”. In Campbell v.
Royal Bank of Canada, [1964] S.C.R. 85, two different judges took judicial notice of completely
contradictory facts.
 Para 52: “While courts have accepted the widespread existence of racism, and the likelihood
that anti-black racism is aggravated when the alleged victim is white, there is no similar
consensus that "everybody knows" a juror of a particular race is likely to favour a complainant or
witness of the same race, despite the trial safeguards and the trial judge's instruction to the
contrary“
 The (stricter) test for JN (from Find), as articulated by Prof. Morgan:
o a court may properly take judicial [page487] notice of facts that are either:
 (1) so notorious or generally accepted as not to be the subject of debate
among reasonable persons; or
 (2) capable of immediate and accurate demonstration by resort to readily
accessible sources of indisputable accuracy ... .
 This is a more narrow vision of JN than what was proposed by Thayer (the idea that JN could be
for things that “everyone knows”).
 Evidence that is found through JN can’t be rebutted.
o Para 55: “On this view, acceptance through judicial notice of the broad race-based thesis
of the intervener African Canadian Legal Clinic would not only stretch the elasticity of
judicial notice, it would create a set of irrebuttable presumptions about how individuals
called to jury duty can be expected to think. If there is one thing most of the social
science studies agree upon, it is that much work remains to be done in Canada within
the limits imposed by s. 649 of the Criminal Code to clarify our working assumptions
about jury behaviour.”
 It could be argued that the strict test for JN should only apply to adjudicative facts and not
necessarily to social facts or legislative facts.
o Social facts are considered background context, not necessarily facts of the actual case
(eg. Battered wife syndrome, feminization of poverty)
o Legislative facts are about legislation or judicial policy
 The closer the fact is the central issue of the case, the more the court ought to insist on the
Morgan criteria for JN.
 The test:
o 1. start with the Morgan criteria. If the evidence meets the Morgan criteria, then it is
included.
o 2. If the Morgan criteria are not satisfied, and the fact is “adjudicative” in nature, it will
not be recognized.
o 3. When dealing with social and legislative facts, the Morgan criteria will not be
conclusive, but should still be used as a guide, especially where the issue is central to the
case.
 Para 65: “I believe a court ought to ask itself whether such "fact" would be
accepted by reasonable people who have taken the trouble to inform
themselves on the topic as not being the subject of reasonable dispute for the
particular purpose for which it is to be used, keeping in mind that the need for
reliability and trustworthiness increases directly [page492] with the centrality of
the "fact" to the disposition of the controversy.”
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE
RELATING TO DISPUTED FACTS: IN THE COMMON LAW TRADITIONAL
Historical perspective
Contemporary views



Ontario Rules of Civil Procedure: R. 6.1.01, 52;
U.S. FRE: R. 614;
Civil Procedure Rules (England): R. 3.2.1, 32
Brouillard v. The Queen, 1985 SCC
Facts: B charged with extortion. Trial judge convicted him. B challenged decision on basis of bias of trial
judge.
Issue: Did the trial judge step outside his role as impartial adjudicator and thus give the appearance of
bias? Holding: Yes.
Reasoning (La Forest J.):
 Role of trial judge = v. demanding  possible for J. to lose his/her patience and thus forget their role
and assume that of counsel. When this happens, need to order new trial (even if verdict is
reasonable based on the evidence, and J. has not erred in fact/law)
 CML principle: judge sits to hear and determine the issues raised by the parties, not to conduct an
investigation on behalf of society at large
 But judges are no longer required to be as passive as they once were; judge not only may
intervene in adversarial debate, but sometimes must do so for justice to be done (overall
objective is to find truth)
 Proper conduct of trial judge therefore has 2 considerations:
o 1. Must be neutral and leave counsel to their own respective functions
o 2. Must conduct the trial well – may have to ask witnesses questions to clarify an obscure
answer, to resolve possible misunderstandings of questions by witnesses, to ask questions
that have not been asked but are necessary
 In brief: judge has a right/duty to ask questions but it is limited  justice must be seen to be done
(all a question of manner)
 Here, judge interrupted witnesses/counsel constantly, treated witnesses/accused sarcastically 
although his conclusions are fine in fact/law, his decision is marred by an appearance of bias 
requires new trial
Ratio: Although the role of the judge is not one of a totally passive umpire, and s/he has a right and a
duty to intervene to ensure the proper conduct of the trial, the judge must not depart so far from their
neutral role that they give an appearance of bias.
Simioni v. Simioni
Case on bifurcation/trial severance
Facts: Mr. Simioni and Mrs. Simioni separated. Upon separation, they entered into a Separation
Agreement. Mrs. Simioni seek to have the Separation Agreement set aside on grounds of duress,
financial nondisclosure and material misrepresentation. Mr. Simioni wants the issues before the court to
be severed: first, there should be a determination at trial regarding whether the Separation Agreement
is valid before determining whether he is required to financially disclose.
Issues
(1) Should the issues be severed? i.e.: should there first be a trial determining whether the
Agreement is valid?
(2) Should Mr. Simioni disclose, and if so, when should he disclose?
Holding (1) Yes. (2) At trial, while the trial judge determines whether the Agreement is valid.
Reasoning
SEVERANCE
To determine whether a trial should be severed, the Court should ask whether the severance would be
“just and expeditious” ([17]). Considerations include:
- “whether the issues for the first trial [that is sought] are relatively straightforward and the
extent to which the issues proposed for the first trial are interwoven with those that will arise in
the second”
- “whether a decision from the first trial will likely put an end to the action”
- resources that have already been devoted to the issues
o “the focus of these questions on expediency does not displace fairness and justice as the
dominant considerations”
Applying to these facts, the Court finds that severing the trial:
- Reduce costs, increases the speed of the dispute resolution
- If first trial finds the Settlement Agreement to be invalid, then parties will likely settle anyway
FINANCIAL DISCLOSURE
The Court agrees that Mr. Simioni should disclose only if the first trial finds the Agreement to be valid –
however, financial disclosure is essential to determining whether the Agreement is valid. Thus, Denis
should disclose for the first trial (after severance) for the purposes of determining whether the
Agreement should be upheld.
Ratio In determining whether the trial should be severed, the Court should consider cost, expediency,
fairness, and justice.
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE
RELATING TO DISPUTED FACTS: IN THE CIVIL LAW TRADITION
Historical perspective
Contemporary views
Kötz, H., “Civil Justice Systems in Europe and the United States”;
This is a lecture at Duke University law school by visiting scholar who studies German and American law
(The Duke dean is (was) a woman!)
Judge does questioning rather than lawyer, although once the Judge has finished the witnesses lawyer
may ask any questions she feels necessary to complete the relevant evidence
Experts are court appointed, court advances expert’s fees but fees ultimately born by losing party.
 “As a court-appointed expert [in Civilian courts] you are an ally and partner of the court. You
assist the court to the best of your ability in reaching a correct result, and it is with the court that
your duty of loyalty lies. What struck me most in my role as party-selected expert witness in the
English cases was not the experience of being examined and cross-examined, but the difficulty
to resist the subtle temptation to join your client's team, to take your client's side, to conceal
doubts, to overstate the strong and downplay the weak aspects of his case”
No stenographer or complete transcript, rather Judge summarizes what witness has said so far every
once in a while and parties can correct.
Little out-of-court contact with prospective witnesses.
But both systems have idea of judge being limited by evidence put before them.
Overall, finds both systems have advantages and disadvantages, but that the American system may want
to look to the European model for options to enhance predictability, consistency, access, cost.
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE
RELATING TO DISPUTED FACTS: IN QUEBEC


C.C.Q. : Art. 2810;
C.C.P.: Art. 4.1, 4.2, 273.1, 279, 290, 292, 312, 318, 413.1, 414ff., 463, 815.1, 822.2, 977, 982 (as well as
corresponding provisions of the Draft C.C.P.)
Technologie Labtronix Inc. v. Technologie Micro Contrôle Inc.
Labtronix is a company that makes casino slot machine games. In 1996 a bunch of Labtronix (LX)
employees formed their own company, Technologie Micro Controle. They used Labtronix software and
basically sold LX products at a cheaper price. LX sued them for unfair competition. A bunch of
complicated things happened.
 Labtronix retained the counsel of Me. Jutras. One of the people that Labtronix was suing was
Jutras’ brother-in-law’s brother (Lemaire) – so he calls Lemaire in to make a settlement. This is
where things get fuzzy and the stories of Micro-Controle and Jutras start to differ. It is alleged by
Micro-Controle that Labtronix (through Jutras) agreed to pay Lemaire a sum of money to testify
for them (i.e. to commit perjury). It is alleged by Jutras/Labtronix that they offered to pay him in
exchange for signing a no-compete contract. In trying to sort out all the evidence (which
includes a whole ton of non-credible testimony by the main players), the trial judge realizes that
it would help him if he knew when a contract between Jutras/Labtronix and Lemaire was written
– so he orders that the court immediately do a site visit to Jutras’ office to check when the word
file was last modified (also forbids everyone in the courtroom from notifying anyone who could
alter the file).


The Court orders that they go visit the law firm immediately per Art. 290 CCP, but says that the law firm
cannot be told in advance that they are coming. The order is executed, and the information that the court
finds is that the last version of the document was saved on July 17 th, the date that supported the lawyers’
version of events. Thus, the hunch of the judge was incorrect.
Nevertheless, the judge believes that the lawyer is lying, and grants the order that the lawyer be removed
from the case.
Issue: Did the judge overstep the boundaries of his role in ordering the site visit? Holding: Yes.
Reasons (Proulx J)
The Site Visit
 The judge made the order to visit the offices of Jutras on his own motion (proprio motu)
o Did not hear the parties on the subject
o Founded his order on art. 2810 CcQ and art. 290 CPC
 The administration of civil evidence is governed by the principe de la contradiction
o The parties bear the burden of making their proof in any manner they see fit in order to
have their rights recognized
 Art. 292 CPC: The judge can signal a gap in the proof (insufficiency in proof, an element of an
essential piece of evidence missing – would be determinant) so that the parties can fill it
o But the judge cannot fill the gap themselves
 Art. 2810 – does it add anything to the judge’s powers or change the fundamental philosophy of
evidence that governs in Quebec (accusatory/contradictory)?
o No. It allows the judge to get direct sensory experience of a piece of evidence that has
been brought by the parties  to increase his understanding of the case
o It does not allow the judge to become an investigator, or to immerse himself in the debate
by going out and getting extra evidence not presented by parties
 The way the judge conducted the site visit made it like a police raid – totally inappropriate
 What the judge should have done is signal the gap in the proof and invite the parties to comment on
it; either the defendants would have agreed to site visit, or would have refused and judge would
have been free to draw negative inferences from that refusal (art. 312 CPC)

In light of all the crapload of contradictory and unconvincing evidence, Proulx J. cannot find that
Jutras & Co., on the balance of probabilities, did what they were accused of (especially because it is
such a serious accusation).
Other Stuff
 It is the sphere of the trial judge to assess the credibility of witnesses – must be very deferential
towards his findings on that credibility
 But since the judgement would constitute a finding of criminal actions against Jutras & Co. (perjury),
the Court of Appeal will very carefully assess the evidence (and they proceed to re-assess the
credibility of witnesses and their testimony, no holds barred)
 Underlying theme of this judgement is bias; Court of Appeal seems to think the trial judge didn’t
have an open mind  made up his mind v. the lawyers too quickly
o When site visit didn’t give him the evidence he wanted, he decided against the evidence
which he previously said would be determinant and found that Jutras & Co. probably
manipulated it
Ratio: The approach to evidence in QC is contradictory and accusatory, not inquisitorial. Art. 2810 does
not give the judge the right to go out and get extra evidence – gives him the right to go out and get
greater understanding of evidence that has been presented by the parties
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE
RELATING TO DISPUTED FACTS: BEFORE QUASI-JUDICIAL TRIBUNALS
Rivest v. Bombardier
Judge Chamberland
Facts: The situation is that Rivest suffered injury in her shoulder at work, sought compensation with the
CSST, which refused her saying the shoulder problems she was having are not part of the risk of the type
of work she does so no compensation
Judicial History
• the CLP reversed the CSST’s decision, saying Rivest is owed compensation under
o a) article 429.40 of the Lois sur les Accidents du travail et les maladies professionnels,
and
o b) article 6 of Loi sur les Commissions d’enquete
• Next, « en revision judiciaire », the Cour Superier annuled the decision of the CLP, sending it
back and requesting that they do another investigation.
• Now Bombardier claims that the CLP acted outside of its jurisdiction by
o a) invoking the two above mentioned legislation to visit the workplace to investigate
o b) by not sharing the findings of the investigation with both parties (they cannot
respond)
Issues
1) celle de déterminer la norme de contrôle applicable à l'exercice de révision judiciaire mené par la
Cour supérieure (not important)
2) celle de savoir si la CLP avait le pouvoir, voire le devoir, de procéder à une visite du poste de
travail;
3) celle de savoir si la CLP devait divulguer aux parties les conclusions tirées de cette visite avant de
rendre sa décision.
Issue 1: Norme de Controle
• Bombardier is arguing that the question of judicial review is important, not because they are
planning on interpreting the LATMP or assessing the evidence, but rather the WAY that the CLP
led the investigation did not follow the minimum standards of procedural fairness and violated
audi alteram partem (because they did not share the results of the investigation). Chamberland
agrees
o
in Moreau Berube v. New Bruinswick, one of the issues for the CA (sitting in judicial
review) was whether the trial judge had erred by exceeding its jurisdiction and not
respecting audi alteram partem. Arbor J wrote that it was not necessary to determine
the standard of review to answer the question
o Cascades Conversion v Yergeau, in answering whether an administrative tribunal
violated a rule of natural justice, Bich J also wrote that “it does not seem useful, in order
to answer this question, to undertake the exercise of determining the applicable
standard , according to functional and pragmatic analysis, if there was a violation of a
rule of natural justice affecting the very jurisdiction of the court.”
• Ultimately, norme de controle doesn’t matter, because the REAL issue is whether the CLP acted
in a way that was procedurally fair (and thus in accordance with principles of
fundamental/natural justice)
• Chamberland notes that simply alleging that someone acted in violation of rules of natural
justice is not enough to preclude using the functional and pragmatic approach.
• Therefore when asking for judicial review it is important to distinguish whether this is a question
that
o a) if it really is a question of natural law or procedural fairness, or
o b) a simple question “accessoire de procedure” (what the CLP is arguing)
•
Chamberland concludes that the way Bombardier has made their request for judicial review is
not just becase a procedural accessory question nor is it a pretext to abandon the
pragmatic/functional approach
Issue 2: Was the CLP allowed to visit the workplace?
• es-ce que la la CLP a manqué à son devoir d'équité procédurale et violé la règle audi alteram
partem dans la manière dont elle a exercé ses pouvoirs aux termes de l'article 429.40 LATMP et
de l'article 6 de la Loi sur les commissions d'enquête? [27]
• again, they allege that the CLP did not have the right to immerse itself in a fact finding
investigation, and because they did, they should have at least shared the findings
• looks at all the laws from the LATMP and the loi sur les commission d’enquete and other pieces
of relevant legislation (page 5-7)
• Basically, if it is not under a list of injuries associated to your type of work, burden falls on
plaintiff to show how the type of injury is characteristic of the kind of work and that the injury is
directly related to the type of risks common at the work. The CLP heard experts from both sides,
and then finally decided to visit the workplace so that Rivest could mime the type of work she
does.
• They do have the right to visit pursuant to article 429.40 of the LATMP. But the trial judge found
that the CLP only ordered this visit because they felt the proof provided by Rivest was
“insufficient” but this was not their call to make. Camberland says this is stupid, they did exactly
what they were supposed to when given contradictory expert evidence.
o Lapointe v Commission D’appel en matiere de lesion professionnelle « Il appartient donc
au requérant de démontrer, selon une preuve civile, qu'il est un accidenté du travail et
qu'il a droit au bénéfice réclamé. Le rôle du tribunal administratif chargé d'examiner
cette preuve, au premier comme au second niveau, est de rechercher la vérité; il doit
voir à ce que le salarié qui y a droit soit correctement indemnisé par ce fonds public et à
ce que, par ailleurs, soit exclue toute réparation à celui qui ne rencontre pas les critères
établis par le législateur. »
• Litigation involving the CLP is not just a civil suit between two persons – the employer is
mentioned but he does not pay the compensation here, the CSST does, so in this case it makes
sense for the CLP to investigate for further facts, whether or not they find the produced
evidence contradictory
• they said they were coming, Bombardier was present, experts were present, they did it with
procedural fairness
Third Issue: does the commission have to divulge their summary of the visit?
•
article 29 of the procedural rules of the Commission, which says that the Commission cannot
support its decision on evidence that the parties have not been able to comment or contradict.
o But this applies more to examples where the Commission refers to a recently released
but unpublished paper that the party does not have access to
• in this case, Bombardier was present at the meeting the whole time, saw the same things the
Commission did
Holding: Throws out the appeal for judicial review, but says that the other request for judicial review
(the CLP’s conclusion on the link between the risk factors and Rivest’s injuries) can go back to the
Superior Court
THE PARTIES’ AND THE ADJUDICATOR(S)’ ROLE IN ADDUCING EVIDENCE
RELATING TO DISPUTED FACTS: BEFORE ARBITRAL TRIBUNALS



IBA Rules;
C.C.P.: Art. 944.1-944.9;
UNIDROIT/ILA Principles: P. 21.1
SPECIAL RULES BEARING ON EITHER THE ADMISSIBILITY OR THE PROBATIVE
VALUE OF EVIDENCE: EXAMPLES OF RULES PRIMARILY AIMED AT ELUCIDATING TRUTH
Guérin v. The State Life Insurance Co.
Facts:




Guérin (G), is suing The State Life Insurance (S) for $1200 of unpaid wages.
S sent two agents to Montreal to open a new branch of S.
G was hired as medical superintendent.
The agents asked G to take out an insurance policy from the company for $10,000, which he did,
and they then inscribed his name and position on his office door.
 G claims that he and S’s agents agreed to a convention where he would be paid 100$/month for
his work. He worked there and was known as the medical superintendent.
 However, having not received the promised pay, after having asked for it, he asked his name to
be taken off the door, and did nothing more for the company.
 The company refused to pay him because they say their agents made no salaried agreement
with G. G has a letter from S’s agents saying that when they appoint a chief medical viceexaminer it will be G.
Issues: Is G’s testimonial evidence admissible to prove the existence/content of the K?
Holding: Yes
Ratio:
 The testimonial evidence of their agreement in this case is admissible because it is supported by
a commencement of proof in writing.
 General Rule favouring documentary evidence – and excluding testimony – does not apply if in
the evidentiary record there is a commencement of proof.
 Commencement of proof= evidence from the party against whom you want to prove the
juridical act (or a third party) that combined with the oral testimony makes it possible for that
juridical act to exist.
 Here the note written by Guerin’s superiors refusing to pay the bill for services, the letter saying
they would appoint G if they appointed a medical superintendent and the inscription of Guerin’s
name on his office door are sufficient commencement of proof to allow for testimonial evidence
Valuex Inc. v. Richmond Transport Inc.;
Note: CCLC applies
Facts: Valuex is a tube seller. Valuex convened with Richmond Transport that Richmond would keep the
bought tubes in its warehouses until buyer Alloys pays. Eventually, Richmond delivered the tubes upon
Alloys’ request and without Alloys paying. Richmond alleges that the written agreement between Valuex
and Richmond was verbally modified after its conclusion, allowing Richmond to deliver without
requesting payment.
 At trial, judge allowed the admission of testimonial evidence to prove that the agreement
between Valuex and Richmond was verbally modified. Valuex argues that the trial judge should
not have admitted such evidence because 1234 CCLC does not allow evidence that contradicts
the written terms of a valid agreement.
Issue: Two issues were submitted, but for the purpose of the class:
Did the trial judge err in admitting the testimonial evidence that sought to prove that the agreement
was verbally modified? Holding: No.
Reasoning: Judge Lamer:
Testimony that seeks to prove the existence of a new agreement or a change to the initial agreement
can be admitted without contradicting 1234 CCLC.
See p.4 of the judgment
“Il est évident qu’il ne s’agissait pas là de contester l’exactitude de l’écrit constant le premier
mandat [agreement] mais plutôt d’établir que celui-ci fut, en regard de l’évolution de la
situation, subséquemment modifié.”
Ratio: Testimony can be allowed to prove the existence of a new agreement or of modification to the
initial agreement.
Comments: FYI, 1234 CCLC: Testimony cannot in any case, be received to contradict or vary the terms
of a valid written instrument.
Toronto-Dominion Bank v.9045-1287 Québec inc., 2006 QCSC
Facts: TD Bank loaned the company in question some money, secured by a variety of guarantors
including the sole shareholders of the company. There were numerous, complicated transactions
involved. At one point, the company shareholders brought in a government agency, Garantie
Quebec, to help secure some of the loans. In the end, the company defaulted on its repayment of
the loan – TD is going after the shareholders for the whole of the operating loan and the term
loan. The shareholders are trying to say that they are only responsible for 20% of the loan they
hold with Garantie Quebec. TD says they owe all of it, according to the contract.
Issue: Can the shareholders bring testimonial evidence to show that their liability for the term
loan is limited to 20%? Holding: No.
Reasoning (Delorme J.C.S.):
 Para 31: “According to the Bank, Defendants may not contradict, vary or interpret the terms
of agreements they have signed. It reiterated specific objections based on the same ground
throughout the hearing, when applicable.”
 Relevant codal articles:
o Art. 2863. The parties to a juridical act set forth in a writing may not contradict or
vary the terms of the writing by testimony unless there is a commencement of proof.
o Art. 2864. Proof by testimony is admissible to interpret a writing, to complete a
clearly incomplete writing or to impugn the validity of the juridical act which the
writing sets forth.
o Art. 2865. A commencement of proof may arise where an admission or writing of the
adverse party, his testimony or the production of a material thing gives an indication
that the alleged fact may have occurred.
 TD says there is no “commencement of proof” according to art 2863, and so the terms of the
signed agreement cannot be changed.







The shareholders say there is a commencement of proof in the statement made by one of the
Bank’s managers in a deposition to the effect that it is hard to be repaid by another of the
sureties (Garantie Quebec)
Raises the question: what is the standard for a fact to constitute a commencement of
proof?
Para 42: “42 Article 2865 C.C.Q. mentions that a commencement of proof may exist where
there is «an indication that the alleged fact may have occurred», in French: «lorsqu'un tel
moyen rend vraisemblable le fait allégué»).”
o The Court then goes into a discussion of what is meant by “vraisemblable”.
o Para 44: “: the writing must tend to render probable (in French ‘vraisemblable’) the
fact which it is desired to be proved.”
o (It is not enough that the fact only be rendered possible)
Para 35: Deciding whether or not something satisfies the requirement of a “commencement of
proof” comprises three different determinations:
o 1. Materiality/factual connexity: does the tendered writing bear on the specific subject
of the testimony it is said to authorize?
o 2. Logical relevance/logical connexity: is the writing capable of supporting an
inference that the testimony is probably true?
o 3. Evidentiary weight: probability, not possibility, is the standard
These requirements are not fulfilled in the present case: none of the evidence already
accepted indicates that the extent of the guarantors’ personal liability was limited to 20%
Para 45: “45 In light of these principles, the Court finds that neither Ms. Bailey's out of Court
testimony, nor the June 30, 2003 statement of account filed with the Bank's Motion to institute
Proceedings (replaced by the updated one filed with the Bank's Answer) clearly indicate that the
extent of the Guarantors' personal liability pursuant to the Suretyship Agreements was reduced
to 20% of outstanding amounts owed under the Term Loan. In other words, they do not render
probable the 20% limitation of the Guarantors’ liability under the Term Loan.”
Absence of commencement of proof  testimony inadmissible to vary the terms of the
written agreement
 Shareholders are also saying that testimonial evidence is admissible to interpret a writing
o But this is only true where the contract is ambiguous on its face  here it is perfectly
clear in attributing full liability to the shareholders
Ratio: The standard for a commencement of proof is probability not possibility.
Bilodeau v. Martineau
commencement of proof: A commencement of proof may arise from an admission or writing of the
adverse party, his testimony or the production of real evidence that gives an indication that the alleged
fact may have occurred (2865 CCQ)
• Plaintiff is claiming she is an undivided co-owner with the defendant for a house
• if this fails, the plaintiff asks the Court to declare that the defendant benefitted from unjust
enrichment at her expense, without reason
• she admits that most things, including a car, were bought under the defendant’s name but the
mortgage payments came from her account; she has the bank statements proving they do
• now that the couple has split, she wants half the money for the house
• the plaintiff says she has verbal evidence that can prove that she is co owner
o the defendant says the notarized act is valid and so testimony attempting to establish
otherwise should not be allowed
o defendant also says the verbal testiomy should be precluded, based on article 2862
“Proof of a juridical act may not be made, between the parties, by testimony where the
value in dispute exceeds $1,500. However, in the absence of proof in writing and
•
•
•
•
regardless of the value in dispute, proof may be made by testimony of any juridical act
where there is a commencement of proof; proof may also be made by testimony, against
a person, of a juridical act executed by him in the ordinary course of business of an
enterprise.”
Article 2863 “The parties to a juridical act set forth in a writing may not contradict or vary the
terms of the writing by testimony unless there is a commencement of proof.”
[50] “En droit québécois, la règle qui interdit à un contractant de présenter une preuve par
témoignage contredisant l'écrit qu'il a signé, a été influencée par le droit français et par la
common law. Cela explique l'adoption, par la jurisprudence québécoise, de solutions
empruntées à ces deux régimes. Comme en droit français, le signataire d'un écrit constatant un
acte juridique ne peut, en principe, prouver par témoignage le caractère simulé d'une
convention. Comme en common law, il peut toutefois faire une preuve verbale d'un contrat
distinct, notamment un contrat de prête-nom ou de société, une entente postérieure et même
une convention antérieure ou concomitante entièrement différente. »
[53] « [53] La preuve d'un contrat de prête-nom ne contredit pas les termes de l'acte juridique
constaté par écrit. »
[83] Ce qui constitue aussi un commencement de preuve et l'existence d'un contrat de prêtenom, il y a un autre bien, soit une automobile.
Ihag-Holding c Intrawest Corporation, 2009 QCCS
Superior Court judgment (prof said he would only discuss the Superior Court judgment, but note that
there is an Appeal Court judgment as well)
INTERESTING: DOUG MITCHELL REPRESENTED THE DEFENDANT INTRAWEST!!
Facts: Plaintiff Ihag is seeking payment of 7M$ from defendant Intrawest, pursuant to a loan
agreement. Intrawest argues that it only owes part of the sum claimed by Ihag. In support of this
argument, Intrawest further pleads that there is an error in the drafting of the loan argument, and the
error explains why Intrawest does not owe the whole sum.
 The fact that makes this case interesting for this course is that there is a “Complete Agreement”
clause in the loan agreement (Ihag wants the court to ignore the evidence that might establish a
drafting error).
Issue:For the purpose of this class, the issue is: Does the “Complete Agreement clause” preclude the
Court from examining certain evidence that would help it determine whether there was a drafting error?
Holding: NO, the Court will not apply the “Complete Agreement” clause and will allow the evidence.
Reasoning: (See part 3.1.2, para 119 and on)
Although the jurisprudence in Québec has traditionally recognized the validity of “Complete Agreement”
clauses, courts have nevertheless set them aside in certain circumstances such as fraud,
misrepresentation, ambiguity, etc. See para 127-129.
Given such “ouverture”, in this case, the Court decided not to apply the “Complete Agreement” clause
because:
1) The loan agreement did not reflect the common intention of the parties, and the court has an
obligation to find the common intention and can only do so by allowing the introduction of
evidence
2) Rules of good faith allow the Court to set the “Complete Agreement” clause aside. Indeed,
courts have the right to review the behaviour of commercial parties to ensure that the
behaviour complies with requirements of good faith. In this case, since Ihag is acting in bad faith
and abusively by relying on the clause with a view to prevent the introduction of evidence, the
clause should be set aside.
Ratio:
(1) When a contract does not reflect the common intention of the parties, the Court may allow the
introduction of evidence to ascertain the common intention, notwithstanding the presence of
“Complete Agreement” clauses.
(2) Good faith requirements allow the Courts to set aside clauses preventing the introduction of
evidence.
Types of documents that may be used to prove juridical acts
Notarial acts


C.C.Q.: Art. 2812-2814, 2818-2819, 2821
Notaries Act
Bertrand Durand Inc. v. Acibec;
Salomon v. Pierre-Louis
Salomon v Pierre-Louis, QCCA 2001
Facts : There is a notarial act saying Frantz Pierre-Louis is the sole owner of a property. The appellants,
Cardin Salomon & Claire Hyppolite, brought an action in the superior court to have themselves declared
co-owners of the property, in contradiction to the notarial act. They said that the three of them had a
partnership and the property was purchased for the partnership. At trial, the trial judge would not allow
a line of questions by the appellants to establish the partnership for the purpose of challenging the
notarial act.
Issues: (a) Can the appellants use testimony to try to establish a right of co-ownership in the property
purchased by the defendant? [yes] (b) Do the appellants have to go through the additional procedure of
improbation (inscription en faux)? [no]
Reasons:
 Only the parties to a notarial act are prohibited from contradicting it or changing the terms
through testimony (art 2863 CCQ). The appellants are not party to the agreement. Therefore
they can use testimony.
 Art 2821 CCQ: Improbation is only required where the parties are calling into question the
conformity of the notarial act with the representations made by the parties. Eg did the notary
record the date properly, etc.
 In this case, the appellants are not saying the notary got it wrong, they are saying the notary was
lied to
 Therefore, they can bring any of the usual evidence to make their case.
Dans l’affaire de la faillite de : C.D.I. Industries Inc. (9037-1006 Québec Inc.)
Canadian Newspaper Co. v. Kansa General Insurance Co.
Case is important re evidence of oral agreement vs the existence of a written policy
Facts:
Canadian Newspaper (CN) was sued for libel and lost. It sought to have its insurer cover the damages.
The damages far exceeded what the plaintiff in libel case asked for. The insurer refused to pay the
amount, alleging, amongst other things, that CN breached its duty of cooperation and the right of the
insurer to defend.
For the purpose of this course, the issue pertains to an oral agreement. The insurer’s position is that no
oral agreement existed outside the written terms contained in the policy.
Issue: Is the Court at liberty to consider evidence of an oral agreement (the reporting agreement)?
Holding: Yes.
Reasoning: “Even when a document seems to embody all the terms of the agreement, evidence of an
oral statement is relevant and may be admitted to demonstrate inter alia the factual matrix of the
agreement ... The trial judge did not err in taking the reporting arrangement into consideration in his
interpretation of the policy.“
Ratio: Even when a document seems to embody all the terms of the agreement, evidence of an oral
statement is relevant and may be admitted to demonstrate inter alia the factual matrix of the
agreement
Rules relating to testimony
Morrow v. Royal Victoria Hospital, 1974
Facts:
-Pl(respondent) = doctor who treated in hospital for “malnutrition” in 1960 for one month. Treating
doctor dies 7yrs later.
-5days after death Pl brings action against his heirs, estate and the hospital.
-def counsel objection to questioning regarding statements that Mother of Pl alleges Dr.Cameron made
to her in two conversations – one before daughter enetered hospital and one when leaving hospital. Not
object to recounting of what Mother herself said but just what alleges Cameron said.
-neither side objected to evidence of Dr Cameron’s written notes on the same conversation
-trial judge allow objection, CoA deny objection
ANALYSIS
Is there a rule against Hearsay in QC?
-look at CCLC 1204/5 and CCP, but neither have provisions directly on parol evidence rule hwr court
finds implicit exclusion of hearsay
-where no opportunity to cross examine a witness on statements made out of court then those
statements inadmissible
Are there execeptions to the rule? Are they the same as in CML?
-yes : in principle the exceptions allowed in English law must be recognized as applicable, in so far as
there is no express provision in this regard or any incompatibility with an express rule.
-this is because in civ code implicit recognition of Eng rules of evidence as underlying rules
Exception 1 : res gestae – When the words spoken are a part of the matter in dispute - ie in the case of
verbal defamation, one is not dealing with a deposition given otherwise than in open court but with the
facts to be proven.
Exception 2 Where testimony only way to present evidence of extra-judicial admission – parol evidence
of extra-judicial admissions in cases where, as in the present case, proof by testimony is admissible.
-here should allow judge to hear statement without jury and take under reserve
-Reminder that difference between admissibility of evidence and probative value – therefore where
evidence admissible under exception it may still lack probative value
Holding – Allow objection to statements, but admit evidence from second conversation under reserve
for judge to decide if constitutes an admission
R v Khelawon, 2006 SCC 57
Facts: Khelawon was a manager of a retirement home. In May 1999, a cook (who had just been given her
notice of termination) found one of the residents of the home (Mr. Skupien) in his room covered in bruises, with
all of his belongings stuffed into garbage bags. She asked him what was going on and he told her that
Khelawon had beaten him up and told him if he wasn’t out of the house by noon that K would come back and
kill him. The cook took him to her house and then to a doctor the next day, and then to the police. The doctor
said Mr. Skupien had three broken ribs, and his injuries were consistent with having been beaten up. They
would also be consistent with a fall. The police investigated and spoke with several other residents in the home
who also alleged assault by Khelawon. The police took video recordings of these statements. Khelawon was
charged with five counts of assault. By the time of the trial 4 of the 5 complainants were dead and the 5th was
no longer competent to testify. There was also a doctor who watched the video and reviewed Skupien’s file and
said he was mentally competent to testify. His medical file said he had depression, was paranoid, and might be
developing the beginning of dementia.
Judicial History: the TJ found that the statements made to the cook and the doctor could be admitted (and
other verbal statements made by the other residents), partly because they were so similar. Ultimately, the TJ
found Khelawon guilty on the basis of Mr. S’s video statement and one other person’s video statement. The TJ
said the only real concern with the evidence was the lack of possibility for cross examination. And the “public
interest in the elderly receiving good care” allowed him to accept the video statements.
Issue: Can Mr. S’s statements, including the video statement to the police, be admitted as an exclusion to the
hearsay evidence rule?
Holding: No.
Reasons:
 The general rule is that all relevant evidence is admissible. Hearsay evidence is an exception to this
rule. Hearsay evidence is typically not admissible.
 Definition of hearsay: (1) the statement is adduced to prove the truth of its contents, (2) the
absence of a contemporaneous opportunity to cross-examine the declarant (para 5)
 Only when the evidence is tendered to prove the truth of its contents do you need to test its reliability.
 Governing framework of admissibility (para 42): (a) hearsay evidence is presumptively
inadmissible, unless it falls under an exception (b) a hearsay exception can be challenged to
determine whether it is supported by indicia of necessity and reliability, as per the principled approach
(c) in “rare cases” evidence falling within an existing exception may still be excluded if not necessary
and reliable, (d) If hearsay evidence does not fall under a hearsay exception, it may still be
admitted if indicia of reliability and necessity are established on voir dire
 Onus is on the person seeking to adduce the evidence to prove reliability and necessity. “Trial fairness,
as a principle of fundamental justice, is the end that must be achieved” (para 4). Criterion of necessity
is founded on principle of trial getting to the truth (fairness to society), reliability is about integrity of
trial, fairness to parties.
 In order to show reliability, two different things are possible: (1) there is no concern about if the
statement is true or not because of the circumstances in which it came about, (2) truth and accuracy of
the statement can be tested through different means than having the person who made the statement
present
 Examples: testimony in former proceedings (has already been cross-examined, etc);
 R v Smith: phones calls from murdered girl to who mother were admissible, but not when the girl told
her mother that her boyfriend had arrived
 R v B(KG): three of B’s friends told police he had stabbed someone, but they recanted on the stand.
Introducing the evidence of what they said before was ok because they could be cross-examined
about It.
 R v U(FJ): JU told police her father was having sex with her “almost every day” and described a
physical assault. Father admitted it, had a very similar story. In trial, she recanted and the father
denied ever having admitted it. Court admitted the previous statement because of the context in which
it was given, and because the striking similarity between JU’s statements and her father’s statements
made it very likely they were true.
 R v Hawkins:
 R v CB: a statement made by a co-accused could be used as evidence against the co-accused, but
not against the accused.
 Idaho v Wright:
Application to this case:
 Mr. Skupien’s statements were hearsay and presumptively inadmissible. Necessity was conceded. He
was not available for cross-examination, had not been cross-examined, did not testify at a preliminary
hearing.
 There is no adequate substitute for testing the evidence. And it is not inherently trustworthy.
 The “striking similarities” in this case were not enough. There were other issues with the other
statements – inaudible, hard to follow
 Evidence inadmissible.
Overview of functional approach: (1) determine if the proposed evidence is hearsay (consider the purpose), (2)
it si presumptively inadmissible, and the burden is on the party who wants to admit it to show otherwise (3) if
the evidence fits within an established exception, it may be admissible, (4) if it can be shown that the evidence
nis necessary and reliable, it may be admitted. Reliability is shown if (a) there is no concern about if the
statement is true or not because of the circumstances in which it came about
Promutuel Drummond, société mutuelle d’assurance générale v. Les Gestions Centre du
Québec Inc.
This case discusses if there is residual discretion of the court to exclude a previous statement by a witness
even if the requirements for admissibility are met under art. 2871. Concludes yes.
Facts: PD is an insurance company that insured a building owned by either GCQ or 9025 (that’s the
question at issue in the case, for insurance purposes). Building burnt down. PD tried to adduce evidence
of an interrogation of the 2 presidents of the companies (under oath, with lawyers) conducted by their
lawyer and recorded by a stenographer. Trial judge refused to admit it.
Issue: Is evidence of the interrogation admissible? Holding: No.
Reasoning:
Chamberland J.C.A. (Robert J.C.A. concurring):
 2871 CCQ: Previous statements of a witness are admissible if their reliability is sufficiently guaranteed
o In the past, previous statements of a witness were not admissible except to impeach their
credibility; now they are admissible as substantive evidence of their content as long as they
are sufficiently reliable
o Can apply in situations in which the witness can no longer remember (due to length of time
or mental deterioration), if it contains an admission they made not in court
 In this case, conditions under which the previous statements were taken make them reliable
 But the judge maintains discretion in its admissibility – permissive language in art. 2871 (efficiency
reasons, events not that far in the past so no need, etc)
 Chamberland will not disturb the trial judge’s use of his discretion to exclude the evidence
Beauregard J.C.A. (dissenting):
 The out-of-court declaration of a party to the trial has always been admissible, not only to impeach
their credibility as a witness but also as substantive evidence of its contents
 So 2871 really only applies to a witness who isn’t party to the dispute – no need for its invocation here
 But when using 2871, Beauregard does not agree with majority that judge has discretion to exclude
evidence that is otherwise proved to be sufficiently reliable (sort of what Mitchell was saying in class,
about how civil law jurists see clearly that the legislator meant to include the hearsay exclusion, no
implicit mention of the exceptions)
Ratio: Court’s interpretation of 2871 – even if reliability test is met, the judge has discretion to exclude
the evidence.
Comments: The textual argument for the majority’s interpretation of art. 2871 is not that
convincing – although the French version says “peuvent” be admitted (permissive
language), English version says “are” admissible (not permissive). The best way to justify
this holding is to refer to the judge’s general discretion to exclude relevant evidence on
the basis of cost efficiency, by balancing the probative value
SPECIAL RULES: EXAMPLES
OF RULES PRIMARILY AIMED AT ENSURING
THE EFFICIENCY OF THE ADJUDICATIVE PROCESS
Penner v. Niagara (Regional Police Services Board) SCC 2013;
Case about the discretionary application of issue estoppel.
Issue estoppel is relevant where an issue has already been decided in an earlier preceding. See para 2830 for an explanation and rationale of this doctrine.
Facts: Plaintiff Penner was arrested for disruptive behaviour in Ontario courtroom by two police officers.
P subsequently filed a complaint against them, alleging “unlawful arrest and unnecesary use of force”.
He also initiated a civil action claiming damages arising out of the same arrest incident.
The history of his “démarche”

Hearing officer (appointed by Chief Policer) found the officers not guilty of misconduct and
dismissed the complaint
 Decision went through Ontario Civilian Commission on Police Services and the Ontario Divisional
Court
 Then, police officers moved to the Superior Court to have the claims of the civil action (separate
from the complaint itself) dismissed on the basis of issue estoppel.
Note: the standards of proof are different in the two claims - (1) complaint at disciplinary hearing, (2)
civil action.
Issue: Does the issue estoppel apply to bar P’s civil action on the basis that the issue of the action was
already heard at the disciplinary hearing?
Holding: Majority: No, it would be unfair to apply issue estoppel. Dissent: Yes
Reasons:
Note: It is at the Court’s discretion whether to apply issue estoppel
MAJORITY: The doctrine of issue estoppel usually applies to ensure that no injustice for the defendants
would ensue (to prevent “harassing” the defendants twice for the same issue). However, in this case,
applying the issue estoppel would be unfair to P.
 All three conditions for issue estoppel were met, the issue was whether it would be fair to apply
it (discretionary exercise).
 The decision Danyluk provided two ways of understanding fairness that should inform the Court
about whether it would be fair to apply issue estoppel. The first is fairness of the prior
proceedings. The second is the fairness of using the results of the prior proceedings to bar future
proceedings. The second is relevant here, since the disciplinary hearing was fair.
The second sense of fairness is concerned with:
 Reasonable expections of parties, difference in nature and scope of the two proceedings:
Although the disciplinary hearing was fair, nothing indicated that P should expect that the
disciplinary decision should be conclusive of his rights in a subsequent civil action. Further, the
purposes of the proceedings were fundamentally different and engaged different standards of
proof. As such, the issue estoppel should not apply and P should be entitled to proceed with a
subsequent civil action.
DISSENT: The issue estoppel is important because it prevents the relitigation of issue, protects the
finality of a proceeding, and protects defendants from being “harrassed” by even further proceedings.
Unlike the majority, the dissent applied a different discretionary test: Figliola SCR 2011.
 Figliola departed from Danyluk in that it provided that fairness should be concerned with
protecting the finality of the trial. As such:
 Argument of difference in nature and scope of the two proceedings is invalid: Even though the
purpose and the procedures of the two proceedings may vary, the issue estoppel should still
apply to prevent relitigation. As such, even though the standards of proof – evidence law rules –
may differ in the two proceedings, the subsequent proceeding should not be allowed.
PS: the two proceedings in question in this case => (1) disciplinary hearing -> complaint (2) civil action
claiming for damages, for the same incident.
Ratio: If the previous preceeding was unfair, or if the two preceedings are of different natures and
engage different evidence rules, then it would be unfair to apply issue estoppel to prevent relitigation.
Regardless of the difference in nature or evidence rules of the two proceedings, the issue estoppel
should apply because what is fair is the finality of the trial.
Comments:
Majority: Protecting fairness through the reasonable expection of the plaintiffs and the recognition that
the two proceedings might be different in nature and purpose.
Dissent: Protecting fairness of litigation by preventing relitigation
Toronto (City) v. C.U.P.E., local 79;
Facts: Oliver, a recreation instructor for the City of Toronto, was convicted of sexual assault of a young
boy. The conviction was affirmed on appeal and Oliver was sentenced to 15 months in jail and one year
probation. The city fired Oliver after his conviction. He (and his union) grieved the dismissal. Labour
arbitrator ruled that the criminal conviction was admissible as prima facie but not conclusive evidence
that Oliver had sexually assaulted the boy. No new evidence was introduced, but the labour arbitrator
held that the presumption raised by the criminal conviction had been rebutted and that Oliver was
dismissed without cause.
Trial History: TJ quashed the arbitrator’s decision. CA upheld TJ’s decision.
Issue: Is this relitigation of the facts permissible? Holding: No.
Reasoning (Arbour J.):
 Standard of review is correctness because “The body of law dealing with the relitigation of issues
finally decided in previous judicial proceedings is not only complex; it is also at the heart of the
administration of justice” para 15.
 The admissibility of the conviction is not at issue. The question is whether the criminal conviction
can be rebutted by evidence to the contrary.
o Sometimes, yes. Especially when the conviction in issue is that of a non-party
o Sometimes, no such evidence may be tendered. If issue estoppel, collateral attack, or abuse
of process bars the relitigation of facts essential to conviction, then the evidence will not be
admissible.
o So, are there any doctrines which preclude relitigation of facts of Oliver’s conviction?
 Issue Estoppel
o Is a branch of res judicata (other branch = cause of action estoppel)
o Precludes relitigation of issues previously decided in court in another proceeding
o Para 23: “three preconditions must be met: (1) the issue must be the same as the one
decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the
parties to both proceedings must be the same, or their privies.”
o Policy is efficiency, protection of interests of parties (should not be subject to vexatious
litigation)
o The first two are met in this case, not the third (mutuality of the parties)
 There has been a lot of academic criticism of the mutuality requirement – but it is
not the time to get rid of it (yet)
o Issue estoppel has no application in this case – doesn’t engage the policies of issue estoppel.
 Collateral Attack
o The concept is Para 33: “A court order, made by a court having jurisdiction to make it, stands
as binding and conclusive unless it is set aside on appeal or lawfully quashed”
o Such an order may not be attacked collaterally – i.e. in proceedings other than those
whose specific object is the reversal, variation, or nullification of the order
o A judicial order should not be questioned except by courts/proceedings provided to
question it (like through the appeal process)
o Union here is not seeking to overturn the conviction; are contesting it for the purposes of a
different claim with different legal consequences
o Para 34: “It is an implicit attack on the correctness of the factual basis of the decision, not a
contest about whether that decision has legal force, as clearly it does”
o Collateral attack has no application here
 Abuse of Process
o Para 35: “Judges have an inherent/residual jurisdiction to prevent an abuse of the court’s
process”; to prevent the misuse of the court’s procedure in a way that would bring the
administration of justice into disrepute
o Flexible doctrine – does not have specific requirements of issue estoppel
o
Has been applied to preclude litigation in circumstances where the requirements of issue
estoppel are not met, but where allowing the litigation to proceed would violate such
principles as judicial economy, consistency, finality, etc
o The focus is less on the interests of the parties and more on the integrity of the judicial
decision
o There has been some criticism that abuse of process is non-mutual issue estoppel by
another rname.
 Para 45: “When the focus is thus properly on the integrity of the adjudicative process, the motive of
the party who seeks to relitigate, or whether he or she wishes to do so as a defendant rather than as
a plaintiff, cannot be decisive factors in the application of the bar against relitigation”
o Para 46: “What is improper is to attempt to impeach a judicial finding by the impermissible
route of relitigation in a different forum. Therefore, motive is of little or no import”
 In this case, abuse of process applies; the interests of the integrity of the administration of justice
require that the litigation be precluded
o How can the State decide that Oliver was guilty beyond a reasonable doubt of sexual assault,
and then be forced by an administrative decision to reinstate him in a job that places him in
contact with young children?
o Arbitrator was required as a matter of law to give full effect to the conviction
Ratio: When the requirements of issue estoppel are not fulfilled, the court may invoke abuse of process
to preclude the relitigation of an issue it has already decided and it would be against the interests of
justice to relitigate.
Note:
Para 51 seems importanat: Rather than focus on the motive or status of the parties, the doctrine of
abuse of process concentrates on the integrity of the adjudicative process. Three preliminary
observations are useful in that respect. First, there can be no assumption that relitigation will yield a
more accurate result than the original proceeding. Second, if the same result is reached in the
subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as
an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally,
if the result in the subsequent proceeding is different from the conclusion reached in the first on the
very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial
process, thereby diminishing its authority, its credibility and its aim of finality
Ali v. Cie d’assurance Guardian du Canada;
Facts: Ali and his son were convicted of committing arson on a building they owned in order to collect
the insurance. Ali and his son are now suing the insurance company for the money!
Issue: What is the status of a prior criminal conviction in a civil trial?
Holding: It does not have the status of res judicata, but it is admissible.
Reasoning:
 The trial judge (shockingly) did not consider the criminal conviction, and on the balance of
probabilities found that the Alis had not committed the arson, and thus granted judgement in their
favour
 The admissibility of a prior criminal conviction in a civil trial and its effect remain controversial
questions
o For some doctrinal writers, it would be ridiculous to ignore it completely; could lead to two
totally opposing judgements
o Some say it is inadmissible, because it would lead to the appearance of the civil court
questioning the criminal court if they considered and granted it little weight
 “No one should profit from their crime” is a general principle of law however
 Judge here concludes that he has to consider the criminal conviction, but he is not bound to
consider it a “chose jugée” – he can draw the conclusions as appropriate

In this case, huge error by the trial judge to decide (even in the absence of the criminal conviction)
on the balance of probabilities that the Alis did not set fire to the building
o On the balance of probabilities, they did
o Add this to the fact that they have previously been found guilty beyond a reasonable doubt
– no recovery for them
Ratio: In the civil law, a prior criminal conviction does not have the status of res judicata in a civil case –
but it is however admissible, and the civil judge can draw the conclusions therefrom as he sees fit.
Ungava Mineral Exploration Inc. v. Mullan;
Facts: In January 2001, Ungava Mineral Exploration Inc. entered into an option-joint venture
agreement with Canadian Royalties Inc. in which Canadian Royalties was granted an option to
acquire on an incremental basis up to 80 percent interest in the mining rights held by Ungava on a
property situated in northern Quebec. In exchange, Canadian Royalties promised to incur the costs
of prospecting, exploring and developing on that property. Following the agreement, Canadian
Royalties discovered certain precious metals on the property, and, convinced that Canadian
Royalties had knowledge of their existence prior to the agreement and had intentionally omitted to
disclose the information, Ungava brought the issue before an arbitrator who eventually dismissed
the claim.
The arbitrator’s award was homologated by the Superior Court, judgment which Canadian
Royalties then sought to have recognized by the Ontario courts. A subsequent claim brought by
Ungava before a second arbitrator was dismissed by reason of res judicata. This award was also
homologated by the Superior Court in 2005. Finally, Ungava instituted an action before the
Superior Court against the Respondents Glenn Mullan and Bruce Durham, geologists and chairman
and director of Canadian Royalties respectively, seeking damages relating to, among other things,
Canadian Royalties’ omission to disclose information regarding the discovery of precious metals.
The Superior Court allowed the Respondents’ exception to dismiss on the basis of res judicata.
The Court of Appeal dismissed the appeal for the same reason
UME sold a mining property to Canadian Royalties Inc. (CRI). CRI discovered precious metals on the
property. UME thought they knew about the metals before the sale – applied to arbitration to have the
contract annulled (rejected and judgement homologated). Applied to arbitration a second time, claiming
to have new evidence and also seeking damages in addition to annulment of the K (rejected). Also
instituted an action against CRI and its representatives for damages in superior court. Trial judge found
res judicata between the second arbitration judgement and the present action.
Issue: Is the issue res judicata? Holding: Yes.
Reasoning (Bich J.C.A.):
 Identity of cause: UME is invoking the same factual ensemble and the same legal characterization
of those facts – the facts alleged to constitute the faults in the two cases are the same (the
behaviour of the defendants)
o Doesn’t matter if UME is suing the defendants in extra-contractual liability or CRI in
 Identity of object: UME is seeking the vindication of the same rights, even though it’s being used
to ask for a different consequence
 Identity of parties: UME is suing the defendants, who represented and directed CRI – are
effectively the same parties as when UME sued CRI
Ratio: Very expansive interpretation of the triple identity in art. 2848 by QCA.
Comments
 This decision really pushes art. 2848 towards its outer limits – the parties are different, the nature
of the action is different (annulment of K v. damages)


Yet the QCA finds a way to expand art. 2848 so that it applies
o Is this the right way to achieve this result? The QCA wants to avoid the waste of
Art. 2848 doesn’t give any discretion in its language – this expansion of its wording isn’t very
legitimate contractual liability à the thing sought is the same relitigating issues – could have used
the abuse of process doctrine put forth in City of Toronto.
Jean-Paul Beaudry ltée v. 4013964 Canada inc.
Case about “autorité de la chose jugée” (like issue estoppel)
Facts: Appellant JPB sued respondent convenience store in a previous action. This previous
action was dismissed. In that judgment, the judge concluded that JPB’S action was abusive:
[82] Je me permettrai de dire qu’à mon humble avis, cette poursuite était tout à fait abusive, sans
le moindre fondement, tout à fait contraire au principle qui devrait être suivi, soit la bonne foi
de part et d’autre.
[83] Il s’agit d’un exmple évidence de mauvaise foi et la demanderesse peut se compter
chanceuse qu’on ne m’it pas demandé de payer, à titre de dommages, les honoraires des
défendeurs, pour abus de droit, ce que j’aurais fait sans aucune hésitation.
In a subsequent action (the case that is now at bar), respondent convenience store sues JPB for
damages, on the grounds of abusive procedures on the part of JPB. The respondent argues that
paragraphs 82 and 83 already established the abusiveness and that therefore they are entitled to
compensation. The appellant contends that paragraphs 82 and 83 are not authoritative and that
therefore, in this subsequent action, the respondent must separately prove that their action was
abusive.
Issue: Should paragraphs 82 and 83 be subject to the authority of a final judgment?
Holding: Yes – these paragraphs constitute authority of a final judgment/“autorité de la chose
jugée”.
Reasons:
Article 2848 al 1 CCQ provides that:
 The authority of a final judgment (res judicata) is an absolute presumption; it applies
only to the object of the judgment when the demand is based on the same cause and is
between the same parties acting in the same qualities and the thing applied for is the
same.
 Further, authority of a final judgment does not only apply to the “dispositif” of a
judgment but also to the “motifs” (reasons) that are essential to the overall decision. (see
para 37) The issue is whether paragraphs 82 and 83 are “motifs” that are essential to the
overall decision such that they should be subject to the authority of a final judgment. The
Court determines that yes:
 In this case, the trial judge was asked to decide on the same question – abusiveness – as
the one which the previous judge in the previous decision had already decided upon
(see para 43)
 Paragraphs 82 and 83 are not obiter – they are essential reasons of the previous decision
 Requirements of 2848 are met
 As such, paragraphs 82 and 83 are subject to the authority of final judgment and the
respondents do not need to prove abusiveness again in this case.
Ratio: Article 2848 CCQ. Authority of final judgment applies not only to the holding, but also to
reasons that are essential (not obiter) to the decision
Comments :
When authority of final judgment is established, no need to prove again
Blank v. Canada (Minister of Justice)
Facts: Canada prosecutes Blank several times for regulatory offences
 Eventually all the charges are defeated or blocked
 Blank then sued the federal government in damages for fraud, conspiracy, perjury, and abuse of its
prosecutorial powers.
 He demands the files that were prepared about him for the regulatory offences case
 The Crown claims this produces a litigation privilege problem, since the information in question may have
come into existence for the dominant purpose of preparing or anticipated or existing litigation
o Note that this is a rule that may suppress the search for truth
o But the larger goal of fairness is considered worth the sacrifice
Issues: Do documents once subject to litigation privilege remain privileged when the litigation ends for which they
were prepared has ended?  NO!
Reasons:
Fish
Solicitor-Client Privilege
 Justice system depends on free communication between those who need legal advice and those
best able to provide it
 Solicitor-client privilege is a necessary for the effective administration of justice
Differences between Solicitor-Client Privilege and Litigation Privilege
 1. Solicitor-client privilege applies only to confidential communications between the client and his
solicitor
o Litigation privilege applies to communications of a non-confidential nature between the
solicitor and third parties, and includes material of a non-communicative nature
 2. Solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or
not litigation is involved
o Litigation privilege applies only in the context of litigation itself
 3. Rationale for solicitor-client privilege is the interest of all citizens in having full and ready access
to legal advice. Aim is to protect a relationship.
o Rationale for litigation privilege is related to the needs of the adversarial process 
need a protected area to facilitate investigation and preparation of a case for trial. Aim
is to protect a process.
 Parties to litigation must be left to prepare their contending positions in private,
without adversarial interference and without fear of premature disclosure
 Both SCP, LP serve a common cause of securing effective administration of justice according to law

“Litigation privilege … is not directed at, still less, restricted to, communications between solicitor and
client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an
unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the
adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose,
parties to litigation, represented or not, must be left to prepare their contending positions in private,
without adversarial interference and without fear of premature disclosure.” (para. 27)
Litigation Privilege – when it ends
 Litigation privilege arises/operates even in the absence of a solicitor-client relationship – applies to
all litigants, represented or not
 Confidentiality is not an essential component of litigation privilege
 Once the litigation is over, the rationale for the privilege is gone and it gives way. Note, litigation is
broadly defined to include the claim that gave rise to the litigation privilege and separate
proceedings that involve the same or related parties and arise from the same or related cause of
action. (para 39)
o
“The privilege may retain its purpose — and, therefore, its effect — where the litigation that
gave rise to the privilege has ended, but related litigation remains pending or may reasonably be
apprehended” (para. 38)
Litigation Privilege – when it starts and what it applies to

Dominant Purpose Test: Litigation privilege applies to documents created for the dominant
purpose of the litigation (para 59)

In the present case, the litigation the documents were prepared for is over – thus, the documents are no
longer covered by the litigation privilege
Note that, even if the privilege had not expired, “the party seeking their disclosure may be granted access to them
upon a prima facie showing of actionable misconduct by the other party in relation to the proceedings with respect
to which litigation privilege is claimed” (para. 45)
SPECIAL RULES: EXAMPLES OF RULES PRIMARILY AIMED AT FURTHERING
EXTRINSIC PUBLIC POLICIES
Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des
déchets (SIGED) Inc.;
This case looks at solicitor client privilege in Quebec, and more specifically, the immunity from disclosing
confidential information to others in a judicial proceeding
Facts: Foster & SIGED entered into a contract for Foster to build a recycling/garbage centre for SIGED.
Completion of the project was uncertain (politics, environmental isues); it ran into opposition, the
project was cancelled, and the contract with Foster was resiliated. Foster sued SIGED for deliberately
squashing the project (acting in bad faith). It became material to know what SIGED’s lawyers had told
the two mayors that had become heads of SIGED about the project in a particular meeting (at which a
third party was present, the lawyers of the municipality). Mayors refused to answer the questions on
discovery, citing solicitor-client privilege.
Issue: Can the solicitor-client privilege be lifted here?
Holding: Yes, if the questions are limited in form & substance.
Reasoning (LeBel J.):
 Professional secrecy refers to the institution in its entirety: includes an obligation of
confidentiality, which imposes duty of discretion on lawyers, and creates a correlative right to
their silence on the part of clients (1st component). With respect to third parties, professional
secrecy includes an immunity from disclosure even in judicial proceedings (2nd component)
 Professional secrecy is incredibly socially important:
o is a civil right, principle of fundamental justice → unless clients can trust their lawyers,
will not be able to be totally honest with them, and lawyers won’t be able to represent
their clients effectively
o Is important to maintain professional secrecy of lawyers to uphold justice system and
rule of law
 Lawyers’ duties are evolving/expanding → not everything they do will be subject to professional
secrecy
 Need to look at a lawyer’s mandate to find out the scope of their obligation of confidentiality
o In the case of an individual professional act, person claiming professional secrecy bears
the burden of proving it applies (because it would be simple to prove).
o In cases of complicated/prolonged mandates (which must be proven), a rebuttable
presumption of fact arises in favour of the person claiming secrecy that it applies to all
communications between lawyer and client
 Opposing party would then have to show that the information sought is not
subject to obligation of confidentiality/immunity from disclosure, or that this is a
case where the law authorizes disclosure notwithstanding professional secrecy

Associated issue: litigation privilege → is being incorporated into civil law concept of
professional secrecy
Ratio: Professional secrecy is a fundamental right of the client in Quebec, not merely a procedural rule
of evidence. Applies broadly to all communications between solicitor and client, but not all.
9139-4429 Québec inc. v. Rosemère (Ville de)
Useful background:
Setion 9 of Charter, 2858 CCQ
Facts: Appellant acquired some lots on respondent’s territory (City of Rosemère) in 2002 for residential
development. City initally approved of the development, but some point after 2004, the City decided to
stop all projects on the lots. In fact, up until 2005, the City had modified its by-laws to allow the
residential development.
 Appellant alleged that the Richer, at the time mayor of Rosemère (and acting in its capacity)
gave a legal document (containing legal advice) to her. This document was produced by the
lawyers representing the city.
 Appellant sought to amend her initial motion to include a paragraph about this legal document.
Respondent opposed to this amendment, claiming that allowing it would violate its right to
professional secrecy.
Issue: Did the City implicitly renunciate to its right to professional secrecy by handing the document
containing advice for the City to the appellant? (NO) Alternatively, did the document lose its
professionally secret nature? (YES)
Reasoning:
The City did not renunciate its right to professional secrecy. There was no clear, obvious, and voluntary
renunciation to the right of professional secrecy when the ex-mayor handed the legal document to
appellant. (see par 31-36) The simple fact that the appellant, a non-beneficiary of the right to secrecy,
invokes the existence of the legal document in her motion/amendment does not cause the beneficiary
to lose its right.
However, the legal document did lose its secret nature:
The divulgation was not a mistake or the result of lack of prudence. Ex-mayor knowingly handed the
document to appellant.
No mention of confidentiality on the legal document itself (???? Necessary?)
Ex-mayor did not act under constraint and did not warn the appellant about the secrecy
Ratio:
Implicitly renunciation must be clear, obvious, and voluntary.
The opposite party invoking the existence of legal document does not cause the beneficiary of the right
of professional secrecy to lose that right
If divulgation was not a mistake or the result of a lack of prudence, the legal document loses its secrecy
nature.
A.(M.) v. Ryan;
Facts: When she was 17, AM underwent psychiatric treatment from Dr. Ryan – he sexually assaulted her.
She later sought counselling with another psychiatrist for this harm – she was very concerned at the
time that the counselling be confidential. She is now suing Ryan for damages. His lawyers want to see
the notes and reports by her therapist about their meetings. Court of Appeal ordered disclosure, with
limits: only the lawyers and the expert witnesses could see the reports, no copies could be made.
Issue: Should the psychiatrist’s notes and records made in the course of AM’s treatment be disclosed?
Holding: Yes, with limitations
Reasoning:
Majority (McLachlin J.):





Fundamental proposition: everyone owes a general duty to give evidence relevant to the matter
before the court, so that the truth may be ascertained.
The law permits certain exceptions to this fundamental duty – are called privileges
o Permits privileges where they are required to serve a public good greater than search for
truth
Wigmore test for establishing whether a privilege exists in a certain situation:
o 1. Communication must originate in a confidence
o 2. Confidence must be essential to the relationship in which the communication arises
o 3. Relationship must be one which should be “sedulously fostered” in the public good
o 4. If all these requirements are met, court must consider whether the interests served by
protecting the communications from disclosure outweigh the interest in getting at the truth
and disposing correctly of the litigation (i.e. interest in confidentiality trumps interest in
truth for this particular case)
Here, the psychiatrist-client relationship passes the first three steps – both parties understood
communications to be confidential; confidentiality is essential to continued existence and
effectiveness of therapeutic relations; and society wants to foster good mental health among all
people, especially victims of abuse.
Fourth requirement is balancing one done on case by case basis –
o Interests of protecting: injury to ongoing relationship between therapist and patient, impact
for persons suffering trauma and seeking psychiatrist help in future, privacy interests of
person claiming privilege. Also Charter values of s.8 privacy and s.15 equal treatment and
benefit of the law.
o Interests in truth-seeking: where strong truth-seeking interest and privacy concerns, courts
can also make an order for partial privilege: i.e. disclosure only to the degree necessary to
serve the ends of the ascertainment of truth in the trial
 “A document relevant to a defence or claim may be required to be disclosed,
o
notwithstanding the high interest of the plaintiff in keeping it confidential. On the other
hand, documents of questionable relevance or which contain information available from
other sources may be declared privileged.”
Decide on partial release with restrictions on who can see the documents (Affirm the CoA)
Dissent (L’Heureux-Dubé J.) : this is from a summary
 There are class privileges (burden of proof on person seeking disclosure) and case-by-case
privileges (burden of proof on person seeking no disclosure)
o Notes from therapy are a case-by-case privilege
 Critique of McLachlin’s approach: doctrine of partial privilege is still ad hoc – it still fails to fulfil
the policy objectives of encouraging victims of sexual assault to seek therapy as well as redress in
the form of a civil action (because they are not assured confidentiality across the board – will have
to prove it)
 She finds that the court should go through the documents requested much more carefully to screen
them for relevance, before they release them.
 This makes sure that the common law of privilege adequately balances the Charter values of privacy,
equality (to victims of sexual assault – primarily women, and the crime is much more private in
nature) and the right to a fair trial
Glegg v. Smith & Nephew Inc. 2005 SCC 31
professional secrecy of physicians and implied waiver of right to confidentiality
Facts: In 1996, Ms. Glegg fell off her bike and fractured her right femur and hip. At hospital,
Dr. Carter performed surgery and implanted a metal implant sold by Smith and Nephew Inc.
She experienced extreme pain after this. The implant was later removed. She sued the
doctors involved and the company, saying she had experienced an allergic reaction to the
implant. The damage she claimed was allergic reaction and pain caused by implantation left
her disabled and unable to work. It also triggered a reactive depression.
On discovery, the defendants found out she had been seeing a psychiatrist for treatment of
depression that she experienced after these events. They asked for access to the
psychiatrist’s records. She refused. Later, they had an expert witness who said the records
would be helpful to him in preparing an opinion. She refused again. A trial judge ordered
that the records be provided (mostly because Glegg’s counsel had failed to provide it to the
judge for the judge to decide if it was relevant). The Court of Appeal ordered it back to a trial
judge.
Issue: What is the impact of the rules of professional secrecy in this case?
Holding: The records should be disclosed
Reasons:
 Professional secrecy is governed by s 9 of the QC Charter, and the Professional
Code. Physician’s professional secrecy is governed by the Medical Act and the Code
of Ethics of Physicians. Like lawyers, the physician’s duty of professional secrecy
includes a duty of confidentiality and an immunity from disclosure (foster wheeler)
 This duty is not absolute. Disclosure may be required to protect competing interests,
and the holder of the right may waive it
 There is no problem with express waiver, as long as the waiver is voluntary and
clear, and as long as the person waiving the right knows the right exists
 But this case is about implied waiver. Since the claimant raised the issue of her
mental health and the cause and consequence of her depression in her claim, she
waived secrecy or the right of protecting her privacy
 But there on limits on what she has to disclose: it must still be relevant.
 This came up at discovery, so there is already an undertaking of confidentiality. Her
privacy is respected insofar as only opposing counsel and parties get to see the
records, and they can’t talk about what they learn in discovery.
 Judges have a duty to set limits on what can be disclosed - have to make sure only
relevant stuff is.
 In this case: the relevance of the material had been proven, and the onus was on the
claimant to prove why it was not relevant. She failed to do so. The trial judge was
correct in ordering disclosure.
Globe and Mail v. Canada (Procureur général)
Earlier this year, the Supreme Court of Canada in R v National Post, considered the dimensions of such a
privilege in the context of the “Shawinigate” scandal involving former Prime Minister Jean Chretien. (Read
more about the R v National Post decision here.) Essentially, the court rejected the argument for a classbased privilege between journalists and their sources, and also rejected the Charter argument put forth
by the National Post. Instead, the court concluded that the common law Wigmore test should be applied
to assess privilege on a case-by-case basis.
Globe and Mail, raises many of the same concerns about source confidentiality and journalist-source
privilege, but in the civil litigation context. Relying on its earlier precedent in R v National Post, the court
quickly concluded that the Wigmore test was preferable to a blanket class privilege or a constitutional
protection for the journalist-source relationship. But the court also had to find a way to introduce the
Wigmore framework – a doctrinal creation of the common law – into Quebec’s civil law system
Facts
 Using information obtained through a confidential source, Globe and Mail journalist Daniel
Leblanc wrote a series of articles on the problematic activities surrounding the administration of
the Sponsorship Program, a program created by the federal Cabinet in the late 90s to increase the
government’s visibility in Quebec. Leblanc’s articles, which primarily targeted the misuse and
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misdirection of public funds, spawned a media furor, a political backlash and eventually even a
Royal Commission (the Gomery Inquiry).
In 2005, the Attorney General of Canada filed a motion to recover money (over 60 million) paid
by the federal government under the program.
Groupe Polygone was one of the entities implicated in the scandal.
o In response, the group maintained that the government had earlier knowledge of the
scandal. It tried to advance a defence of prescription under the CCQ (like that other case
whose name I can’t remember right now)
o Groupe Polygone applied for an order requiring certain persons to answer questions
aimed at identifying the source behind the Globe and Mail articles (for prescription
purposes)
o A year later, the Globe and Mail brought a motion for revocation, arguing that the orders
would have the effect of breaching journalist-source privilege. This was denied.
Additionally, in 2008, Leblanc wrote another article that reported details of the negotiation of a
settlement between Groupe Polygone and the federal government.
Counsel for Groupe Polygone complained, an order (the publication pan) was issued, prohibiting
Leblanc from reporting on the confidential settlement negotiations between the Attorney General
and the defendants.
o Although the Globe and Mail argued that the order was, in effect, a publication ban, de
Grandpré J. maintained that it was not (despite providing no interim written or oral
reasons.)
Issues
1) Does a class privilege extend to Leblanc?
2) Is the publication ban on settlement negotiations valid?
3) (sub issue) Does the common law Wigmore test apply to Quebec civil law?
Holding
1) Yes. Leblanc is entitled to have his claim for privilege tested against the Wigmore criteria, and the appeal
is allowed → court remitted the matter to the Superior Court for a consideration of his claim, in
accordance with the framework provided in the court’s judgment (below)
2)
3) Yes. Despite its common law origins, the use of a Wigmore-like framework to recognize the existence
of the privilege in the criminal law context (established in National Post) is equally relevant for litigation
subject to the laws of Quebec.
Analysis
 The Court in National Post asked which is the more appropriate framework for recognizing the
journalist-source privilege in the context of a criminal investigation?
a) a constitutional privilege rooted in s. 2(b) of the Canadian Charter;
b) a class-based privilege, analogous to solicitor-client privilege;
c) or a privilege recognized on a case-by-case basis according to the four-factored
Wigmore framework?
 The Court, unanimously, rejected the first two options (para 20)
o Binnie J: constitutional protection of newsgathering techniques goes too far, and an order
compelling a journalist to identify a source generally does not violate 2(b). It can’t be class
based either (no formal accreditation/licensing, it is not clear who even holds the privilege
the journalist or the source, etc)
 Wigmore factors instead:
 (1) the relationship must originate in a confidence that the source’s identity will not be disclosed;
(2) anonymity must be essential to the relationship in which the communication arises;
(3) the relationship must be one that should be sedulously fostered in the public interest; (4)
the public interest served by protecting the identity of the informant must outweigh the public
interest in getting at the truth
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Same as in National Post, G&M attempts to argue that after the first 3 are met, onus shifts to party
seeking disclosure to demonstrate, on balance of probabilities, why disclosure is just
o Rejected: Given that the evidence is presumptively compellable and admissible, the
burden of persuasion remains on the media to show that the public interest in protecting
a secret source outweighs the public interest in criminal investigations (para 24)
Analysis is situation specific, public interest in freedom of expression always weighs heavily
How does Wigmore fit in with Civil Law?
o There is no question that the Wigmore case-by-case approach to journalist-source
privilege applies in the context of ordinary civil litigation subject to the laws of the
common law provinces. (para 26)
o However, it was argued that it would be inappropriate for this Court to introduce
into the Quebec law of civil procedure and evidence a framework for considering
journalist-source privilege which originates entirely in the common law
How to reconcile Civil law, CCQ, CCP, Quebec Charter, Canada Charter, and the fact that many
court systems are common law?
The codification of civil procedure does not mean that civil procedure “is completely detached
from the common law model.” The Civil Code sets out a legal framework and essential rules of the
law of civil evidence, but general principles have still have to be considered when an unresolved
issue emerges in the application of the law (para 31)
S. 3 (freedom of expression) and 9 (professional secrecy) and s. 44 (access to information) all no.
(para 34) This isn’t freedom of expression, s.44 cannot for the basis, and there is no analogy
between professional secrecy and journalist-source privilege
See para 34-39 for reasons why they are not the same
In terms of testimonial procedure, the Court has on many occasions recognized the mixed natured
of Quebec procedural law (Foster Wheeler) (para 40)
Generally speaking, the sources of the Civil Code’s substantive evidentiary rules are derived
from the French law tradition, but many of the procedural and evidentiary rules— those
dealing with testimony, the administration of justice, and the exclusion of evidence, for
example— have their source in the old common law rules
The Superior Court is divided on whether Wigmore is applicable in Quebec, in a number of
judgments rendered since the coming into force of the Civil Code.
o The doctrine was explicitly rejected in Grenier v. Arthur [2001], Centre de réadaptation
en déficience intellectuelle de Québec v. Groupe T VA inc., [2005]. In each case the court
preferred to rely on the Civil Code and a balancing of applicable Quebec Charter rights.
o By contrast, Wigmore was expressly used to recognize a case-by-case privilege in
Tremblay v. Hamilton, [1995] and Landry v. Southam Inc., 2002
So there is a gap, and Quebec civlaw especially doesn’t like it when judges fill in gaps (Lac
D’Amiante, para 39, and Foster Wheeler), and the only CCQ provision dealing with judge’s
discretion is 2858, BUT it needs to be done here….
o “The creation of a framework to address these issues represents a legitimate and
necessary exercise of the power of the court to interpret and develop the law” (para 48)
the court analogizes journalist-source privilege to police-informer privilege in this regard…
Although police-informer privilege is a class privilege, the very thing they were rejecting, it does
share roots in a common law rule of public policy. (para 48-53 ish)
o In Bisaillon v Keable, [1983] 2 SCR 60, it was argued that since the Code of Civil Procedure
was comprehensive, the omission of a testimonial exception for police informants meant
that the Commissioner in the case could compel disclosure. Beetz J., writing for a
unanimous case, concluded that because the police-informer privilege originated in the
common law, the rule would only be overturned in Quebec law by a “validly adopted
statutory provision.” Thus, since the Code of Civil Procedure was found to be lacking on
this point, the common law rule remained a part of Quebec law
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The CCQ grants judges the authority to exclude evidence or testimony in case of a breach of the
Quebec Charter (para 53) based on article 46 of CCP “They may, at any time and in all matters,
whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such
time and on such conditions as they may determine. As well, they may, in the matters brought
before them, even on their own initiative, issue injunctions or reprimands, suppress writings or
declare them libellous, and make such orders as are appropriate to deal with cases for which no
specific remedy is provided by law”
The Wigmore framework, when stripped to its core, is simply taking into account competing
interests, so the Wigmore criteria can shape the structure and analysis when considering claims
for journalist-source privilege in Quebec (para 54)
All evidence must be relevant for it to be admissible, Article 2857 “All evidence of any fact relevant
to a dispute is admissible and may be presented by any means.”
o It therefore goes almost without saying that if the party seeking disclosure of the identity
of the source cannot establish that this fact is relevant, then there will be no need to go
on to consider whether the privilege exists
As Justice Binnie noted in National Post, it is the fourth Wigmore factor that will do most of the
grunt work in the analysis of any claim for journalist-source privilege.
o He set out a number of relevant considerations in the determination of whether physical
evidence must be disclosed in the criminal context (see paras. 61-62). It is therefore
helpful to highlight some of the considerations that will be relevant to the court’s
balancing exercise at the fourth Wigmore stage, in claims arising in the context of civil
litigation
i.
Centrality of Issue
ii.
The stage of the proceedings (para 58)
 These two are related.
 Early stage of proceedings like discovery might militate in favor of
recognizing privilege as there has been no determination yet of party
liability (variation of the UK “newspaper rule” Attorney General v
Mulholland, 1983) whereby journalists are allowed to protect their
sources during the discovery stage, because at this point the procedural
equities do not outweigh the freedom of the press, but may be required
to disclose at trial.
 However, given the point of discovery, testimony could provide a clear
picture and prevent the need to go to trial, which would favor not
recognizing privilege at this stage (para 58).
 Pursuant to art. 398.1 C.C.P., the party conducting the discovery may file
the transcript in evidence. Therefore, should a situation arise where a
court orders the journalist to answer questions on examination for
discovery, and the opposing party later in fact decides to file the
transcript pursuant to art. 398.1, then, given that the testimony would no
longer be confidential, the journalist should be entitled to again raise the
issue of privilege before the court and highlight any change in
circumstances that the filing of the transcript would have made.
iii.
If journalist is party to the litigation or just a witness (para 61)
iv.
If the testimony/evidence is available by other means (this one is crucial) (para
62)
v.
Others include degree of public importance of journalists story, and whether it
has already been published (and is part of public domain)
o This list is not comprehensive; context is critical (para 64)
Summary of the Proposed Test (para 65):
1) To require a journalist to answer questions in a judicial proceeding that may disclose the identity
of a confidential source, the requesting party must demonstrate that the questions are relevant.
2) If the questions are irrelevant, that will end the inquiry and there will be no need to consider the
issue of journalist-source privilege.
3) If the questions are relevant, then the court must go on to consider the four Wigmore factors and
determine whether the journalist-source privilege confidential, the journalist should be entitled
to again raise the issue of privilege before the court and highlight any change in circumstances
that the filing of the transcript would have made should be recognized in the particular case.
 At
the
crucial
fourth
factor,
the
court
must
balance:
(1) the importance of disclosure to the administration of justice against
(2) the public interest in maintaining journalist-source confidentiality.
o This balancing must be conducted in a context-specific manner, having regard to
the particular demand for disclosure at issue.
 It is for the party seeking to establish the privilege to demonstrate that the interest in
maintaining journalist-source confidentiality outweighs the public interest in the
disclosure that the law would normally require.
4) The relevant considerations at this stage of the analysis, when a claim to privilege is made in the
context of civil proceedings, include: how central the issue is to the dispute; the stage of the
proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly,
whether the information is available through any other means.
Application of the Framework
(remember this is going back to Superior Court so it’s not a full analysis)
 The public interest in confidentiality is based largely on the degree to which specific questions
would tend to reveal the identity of MaChouette.
 Mr. Leblanc could not refuse to answer a question that could materially advance Groupe
Polygone’s prescription defence, but which could not threaten the identity of MaChouette.
 Accordingly, evidence as to the likelihood that an answer to a particular question would tend to
reveal MaChouette’s identity would be of assistance.
 Only where there would be a real risk that Mr. Leblanc’s answer would disclose MaChouette’s
identity, should the judge ask himself whether, after an assessment of the relevant
considerations, the balance of interests’ favours privilege over disclosure.
 For example, at the far end of the spectrum, if Mr. Leblanc’s answers were almost certain to
identify MaChouette then, bearing in mind the high societal interest in investigative journalism, it
might be that he could only be compelled to speak if his response was vital to the integrity of the
administration of justice.
 Ultimately, these matters will be for the judge to determine, but he must consider them.
Sable Offshore Energy Inc. v. Ameron International Corp.
Houle v. Mascouche (Ville de) 1999 qcca
Facts: H was Director of the Citizens’ Office in Mascouche. She had access to confidential information
concerning a municipal development project. Her neighbour heard things were “shaking” at City Council,
so he decided to intercept and record all the phone conversations she made at home, outside work
hours. He came by some interesting material, brought it to the mayor, who told him to continue. On the
basis of these recordings, H was fired (for conveying confidential information about the project to real
estate developers). She appealed her decision to the Commission de Travail (administrative body). They
ruled the evidence was admissible – she applied for judicial review. Trial J. ruled the tapes inadmissible.
This is city’s appeal.
Issue: Are the tapes admissible or inadmissible? Holding: Inadmissible.
Reasoning:
Concurrence (Robert J.A.):
 art. 2858 CCQ: any evidence obtained by the breach of fundamental rights will not be admissible if it
brings administration of justice into disrepute.
 Two conditions: 1. Evidence must be obtained in a breach of a fundamental right 2. Its use in court
must tend to bring the administration of justice into disrepute
o Privacy is a fundamental right (protected by QC Charter, CCQ)
 H’s right to privacy was clearly and badly breached in these circumstances; it’s especially bad that
she was in her own home, talking on the phone outside work hours, with clear expectation of
privacy
 N.B. Cannot allow the city to justify its actions based on what it thereby found – have to assess the
breach/its tendency to bring justice into disrepute apart from content of evidence or its probative
value
 Robert J.A. will import principles developed within criminal law (s. 24(2) Canadian Charter) into his
analysis of the admissibility of this evidence in a civil trial under art. 2858
 In this case, there is no other way the evidence could have been discovered; the breach was
particularly bad; and a reasonable and objective person would conclude that the administration of
justice would be more brought into disrepute by admitting evidence of this nature than by excluding
it
Majority (Gendreau J.A. + 1):
 For a very long time, evidence was admissible in a civil trial regardless of how it was obtained
art. 2858 changed this situation
 Majority will not apply the principles derived within a criminal law context to the civil context with
which they are faced  there are too many differences between civil and criminal context
o The foremost being that there is no reason to favour the defendant in a civil context: they
are not protected from self-incrimination at all in civil court
o What is inadmissible in a criminal trial may very well be admissible in a civil trial
 Article 2858 introduces an exclusionary rule of evidence in order to protect the higher value of the
integrity of the system of civil justice
o Its purpose is not to compensate a victim whose fundamental rights have been infringed
o The provision imposes the obligation on the court to exclude relevant evidence if it has been
obtained under circumstances which violate fundamental freedoms, but only to the extent
that its admissibility would tend to bring the administration of justice into disrepute
o Evidence may be admissible if it was obtained in violation of fundamental rights
o The criterion that must be satisfied is that of bringing justice into disrepute
 Confidence of the public in the civil justice system depends upon maintaining a balance between the
protection of fundamental rights on one hand and the seeking of truth on the other hand
 First factor to review = seriousness of the breach  the more serious it is, the more chance that the
general rule of relevance will be overridden (here, was very serious)
 Second factor to review = the lawful interest or motivation of the author of the breach for
violating the other party’s rights (i.e. their good or bad faith)
o Method used to carry out the breach might be relevant here (if it is itself a crime, will
obviously be deemed more serious infraction of the right)
 Not all breaches, even if serious, necessarily entail the exclusion of evidence
 The big question to ask: “Taking into account the nature, purpose, motivation and lawful interest of
the author of the breach and, considering the methods of gathering such evidence, was the breach
of fundamental rights so serious that it would be unacceptable for a court of law to authorize the
party having obtained the evidence to use it in order to advance its private interests?”
o If the judge thinks the evidence obtained in breach of fundamental rights constitutes an
abuse of the legal system because it lacks a sufficient legal justification, he should disallow
the evidence
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In this case, the neighbour had no lawful interest and the mayor’s motives or methods were not
better
 Evidence is inadmissible
Ratio: Evidence obtained in the breach of fundamental rights, if its use by the court would tend to bring
the administration of justice into disrepute, is inadmissible.
Guest speaker, justice Marc-Andre Blanchard (April 7, 2015)
Berthiaume c. Carignan, 2013 QCCS 1357
 8 months of criminal law this year
Asking: rules of evidence in crim vs civil
 Civil trials: rarely about evidence
o Sometimes professional secrecy comes up, sometimes types of proof (writing, etc),
o But pretty rare
 Criminal:
o He only does jury cases (QCSC, not provincial court)
o Judges are gatekeepers for quality of proof
o Judge has duty to object
o Voir dire way more common (pretty rare in civil)
o 2858 CCQ: will cover this in last class. Eg of when a voir dire might be held
o If mistake at trial level, CA orders new trial
 In civil: CA will replace TJ judgment with their own
 First time in 8 years using security button
 Self-reps:
o Have to tell self-rep you are not their attorney
o Family matters: when both self-repped, might have slightly higher flexibility than
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when one is repped and one is not
 Also, duty to try to conciliate the parties
o If no one objects, proof will go in
292 CCP: obligation to highlight lack off proof
Delicate issue: when it is an absence of proof, or not a sufficient proof
o Many instances of insufficient proof. That doesn’t req intervening under s 292
Self-reps: all depends on the nature of the case
o 8 years ago, a self-rep for a latent defect case – better than the lawyers for the other
side!
o The case where he threw someone out: was an inheritance case
 Those are nasty. Those and neighbour fights. Those are the two worst types
of cases to get.
Then there are vexatious litgants
Expert evidence
 Concern with costs and duration of litigation
o One expert named by the court good for this
 But: party has a right to present its own case with its own expert
Examination and cross-examination:
 Have to know what you have to prove. And know when to shut up. Requires confidence.
o Confidence comes with preparation and experience.
 When a witness for the other side says something that is good for your case: take note of it.
And if the judge didn’t notice, you can always go to the court of appeal
 Two questions for experts:
o What is the weakest part of your opinion?
o What is the best element of the expert on the other side?
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 Reveals the real issues
Risks of trials: unpredictable things happen
o Trial attorneys manage risk
Justice is a very human endeavour starting with the judge, starting with the attorneys, and
starting with the clients
Cross examination
 Rule of thumb: never ask a question to which you do not know the answer
 Yelling is never good
 Try to start with a bang, and try to finish with a bang
 Once in 23 yrs of practice a witness confessed to lying on cross examination
Experts for foreign law
 Comes up very rarely – maybe 2-3 times a year
 CCQ says: judge can use expert for foreign law (not must) but, also: without evidence,
judge will presume the law is the same as in QC
o Might point that out to parties – suggesting need for expert
 The less he decides, the better, bc the fewer mistakes he will make
Ability to step in
 None.
 Incompetent counsel
 Civil matters: judge knows the story in the proceedings and what is in the court record.
And that’s it.
Diversity on the bench:
 Women are 32% at the bench
 And since 1982 it has been 50/50 in law school
Considerations of social context
 Jurisprudence has said, in some instances, that there is systemic discrimination
o Gladue principles, some other cases
 But for him to decide there is systemic discrimination, he will need proof
 “I am not a social agent who can act on my own. I need proof. I need a request”
 But of course, everyone is human and everyone has their own
knowledge/baggage/perspective
 ‘we’re not swayed by public opinion. My decision might be on the front page of ***, and I
don’t mind. If I’m wrong, the court of appeal will correct me’
 But the times, they are a-changin’
Take-home points
 With experience, comes anticipation
o Preparing gives you that experience
 Trust yourself, have confidence in yourself
 Litigation is all about managing risk
 Justice is a human endeavour
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