Speaking from Beyond the Grave

The Court of Appeal for Ontario recently dealt with one of the last remaining anomalies to the modern rules of evidence – the statutory requirement for “corroboration” of evidence in an action involving a deceased person.

While in Ontario this rule is embodied in section 13 of the Evidence Act, a similar rule is enacted in many common-law jurisdictions. Section 13 of the Ontario Act states:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

In Brisco Estate v. Canadian Premier Life Insurance Company, the Court was not dealing directly with an estate action but an action against a life insurer by the beneficiaries of a policy owned by the deceased. At issue was whether the deceased had or had not canceled the policy prior to his death. The beneficiaries sought to rely on certain hearsay evidence of the deceased, through the beneficiaries, with respect to the deceased’s intentions regarding his life insurance policies. At issue was whether the hearsay evidence was (1) subject to s. 13 of the Evidence Act and (2) if so, whether the evidence was sufficiently corroborated.

The Court went through an interesting analysis of the rationale for s. 13. It noted that the rule is an anomaly to the common-law rules of evidence and is among the last requiring that evidence be corroborated. The Court noted that “[m]ost statutory and common law requirements have fallen away in the last thirty to forty years, including requirements for corroboration of the evidence of children, rape victims and accomplices”. The Court went on to review the purpose for the rule and the possible dangers that may arise from its application:

The purpose of the rule is to guard against fraud in an action against the estate by a party to a transaction with the deceased. This objective is based on the fact that only the survivor’s testimony is available. Section 13, however, is drawn in broad terms to capture not only those who bring an action against the estate, but those bringing an action on behalf of the estate. And, as in this case, the rule potentially captures a case where the court does have the testimony of the deceased, albeit in the form of hearsay. In this latter case, the primary danger lies in the witnesses’ possible perjury, but they are available for cross-examination.

Given the exceptional nature of the rule and its potentially broad application, the Court in this case restrained the rule, stating:

Given its anomalous place in the modern law of evidence, especially in a case such as this, I see no reason to give s. 13 a broad interpretation when considering its application nor a narrow interpretation when considering the scope of evidence capable of corroborating the evidence of the interested party.

In this particular case, the Court determined that section 13 does not apply, finding that “s. 13 is limited to circumstances in which the interested party claims as an heir, next of kin, executor, administrator or assignee and not simply because, coincidentally, the person happens to fall within one of these categories. In this case, the Brisco children do not claim as next of kin or heirs but under a contractual right as beneficiaries of an insurance policy”. The Court therefore clearly restricted the application of section 13 to actions involving an estate itself and the rights of those claiming in the estate.

The Court also seemed anxious to give wide breadth to the type of evidence available to corroborate evidence to which section 13 might apply. In particular, it agreed that corroborating evidence can include an accumulation of circumstantial evidence, notwithstanding that each item or piece of evidence viewed in isolation may not be corroborative.

Given the Court’s generally negative view of s. 13 in this case, is it possible that the section may not be too far from the grave itself?

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