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Slover v Rellinger: Retrospective Capacity Assessment is Admissible Evidence

Voir Dire – Slover v Rellinger – February 21, 2019 Cv-16-00005069

Blog by Henry Howe of case review by Kimberly Whaley for STEP Toronto, September 2019

In estate litigation where capacity is an issue, the person whose capacity is in question is often deceased. Slover v Rellinger, a case for which the trial decision is not yet out, addressed the admissibility of retrospective capacity assessment as expert evidence.

The plaintiff retained Dr. Kenneth Shulman to carry out a retrospective capacity assessment. The defendant argued that a retrospective assessment constituted “novel science,” and should not be admitted. After receiving the evidence in its entirety, and hearing submissions from both parties, Sanfilippo J. ruled that the evidence was admissible, and would be incorporated into the trial record.

Sanfilippo J. applied the two-stage test for admissibility of expert opinion evidence from R v Abbey[1]. To be admissible, the evidence must meet the threshold requirements of admissibility, and the judge must determine that the benefits of the evidence outweigh its potential risks. To meet the threshold requirements, the evidence must be:

  • logically relevant
  • necessary
  • not subject to any other exclusionary rule
  • properly qualified
    1. impartial
    2. independent
  • unbiased
  • based on science that is “reliable for [its] purpose,” if it is based on “novel or contested science or science used for a novel purpose”

The defendant argued that Dr. Shulman’s assessment was based on “novel science” because it was retroactive. Sanfilippo J. rejected this argument, noting that “many types of medical and psychiatric opinions offered in trials are retrospective in nature, such as certain types of defence medical examinations”. Retrospective capacity assessments were described as “viewing the same issue from a different perspective,” and found to be “far from novel in our courts”.

Sanfilippo J. also noted that the defendant had been unable to identify a single case in which a retrospective capacity assessment, used as psychiatric expert evidence, had been ruled inadmissible. The cost/benefit analysis at the second stage of the test also favoured admission.

This decision is important for estate litigators, who must often rely on retrospective assessments to address capacity concerns.

[1] R v Abbey, 2017 ONCA 640.

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