Estate Planning

Capacity to Be Examined and Give Evidence

By Hull & Hull LLP

When is a potential witness incapable of being examined?  Price J. examined this issue in Vokes Estate v. Palmer, 2009 CanLII 70132 (ON S.C.) in the context of a motion to compel a party to attend an examination under oath, where that party's solicitor had earlier refused to allow him to take the oath or give a solemn affirmation.  

Ultimately finding the witness capable of taking an oath and giving evidence, Price J. reviewed the authorities.  The leading case of McGowan et al v. Haslehurst et al. (1977), 17 O.R. (2d) 440 (H.C.J.) states that parties should be able to avoid attendance at examinations for discovery on the basis of unsoundness of mind only in the clearest of cases.  The onus of proof of unsoundness is on the party seeking to avoid the examination (Barnes v. Kirk, [1968] 2 O.R. 213 (ON C.A.).

Price J. also applied the principles applicable to testing the competency of witnesses giving evidence at trial.  Under section 18 of Ontario's Evidence Act, any person is presumed competent to give evidence, and therefore the onus is on the person to establish incapacity.  The presiding judge must examine the proposed witness. Section 16(1) of the Canada Evidence Act prescribes questions for such an inquiry, namely: whether the witness understands the nature of an oath or solemn affirmation, and whether the witness is able to communicate evidence.

As a sidenote to this decision, Price J. reviewed and rejected a capacity assessment that found the potential witness incapable of giving evidence.   

A review of this decision will be helpful to any practitioner dealing with questions of a potential witness's capacity to give evidence.

Have a great week,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

Full post as published by Toronto Estate Law Blog on December 21, 2009 (boomark / email).