Case Comment: Vokes Estate v. Palmer
Vokes Estate v. Palmer 2009 CanLII 70132 (ON S.C.)
This recent decision by Price J. dealt with the issue of capacity to understand an oath or solemn affirmation and the capacity to communicate evidence. In this motion, the Court emphasized that it is not a simple matter for a party to be found incapable of testifying under oath and that evidence of cognitive impairment alone does not provide a sufficient basis to exempt that party from giving evidence.
Randal Palmer suffered a brain injury in 2003. Three years later, he was the driver in a car accident that caused the death of Michelle Vokes and her unborn child in another vehicle. Ms. Vokes’ family commenced an action naming Mr. Palmer as the defendant, and he in turn brought a Third Party Claim against Parkwood Hospital on the basis that the Hospital had previously found him fit to drive when it should have been clear that he could not drive safely. In the course of the litigation, Mr. Palmer’s sister was appointed litigation guardian.
When Mr. Palmer was to be examined for discovery, his lawyer refused to have him take an oath or solemn affirmation arguing that Mr. Palmer’s brain injury rendered him incapable of doing so. Mr. Palmer’s examination for discovery proceeded without him taking an oath or solemn affirmation and a transcript was produced.
Six months later, Mr. Palmer’s lawyer submitted a report from a social worker and SDAcertified capacity assessor that stated that Mr. Palmer was indeed incapable of understanding the nature of an oath or affirmation. The Hospital then brought this motion for an order directing Mr. Palmer to be examined, this time under oath or solemn affirmation. Mr. Palmer opposed the motion, maintaining that he was incapable of understanding the nature of an oath or affirmation, and incapable of communicating his evidence.
In reviewing the issues before it, the Court emphasized that parties can only be exempted from examinations for discovery in highly exceptional circumstances and that the burden of establishing that an exemption is appropriate by reason of incapacity falls squarely on the party seeking to be exempted.
The Court referred to subsection 18(1) of the Ontario Evidence Act that provides that “a person of any age is presumed to be competent to give evidence” as well as subsection 2 16(1) of the Canada Evidence Act that directs courts faced with the question of capacity to testify, to examine “(a) Whether the witness understands the nature of an oath or solemn affirmation; and (b) Whether the witness is able to communicate his evidence.”
The Court looked closely at the capacity assessment provided by Mr. Palmer’s lawyer, as well as the transcript of Mr. Palmer’s unsworn examination for discovery. In respect of the capacity assessment, the Court was not satisfied that the capacity assessor was qualified to specifically address capacity to take an oath or to communicate evidence. The Court also found that the assessment itself dealt with general matters of the defendant’s cognitive impairment and the fact that a litigation guardian had been appointed, and not the specific question of his ability to understand the nature of an oath or solemn affirmation or to communicate his evidence.
In scrutinizing the discovery transcript, Price J. found that Mr. Palmer had testified that he understood the importance of telling the truth and that he knew it was wrong to tell a lie. The transcript also showed that the defendant had been able to answer questions posed to him and that when he did not know an answer or when he disagreed with a point, he clearly indicated his lack of knowledge or disagreement. The Court pointed out that the threshold for giving evidence is not high. A capable witness is required to be able to observe, recollect and communicate but is not required to communicate to a
level of perfection.
The Court emphasized that medical evidence is required for a finding that a person is incapable of testifying and that even with the appropriate evidence, the standard of proof is high. Justice Price was not satisfied that the high standard had been met in this case and ordered the defendant to re-attend for examination for discovery and to take an oath or solemn affirmation at the examination. The fact that the defendant had suffered a serious brain injury and required a litigation guardian did not lead to the conclusion that he was incapable of understanding an oath or solemn affirmation or of communicating evidence. In spite of his demonstrated cognitive impairment, Mr. Palmer was still presumed capable of testifying under oath and was required to do so by the Court.
Link to PDF copy of this Case Comment as presented in OBA Deadbeat, Vol. 28, No. 3, March 2010
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Written by: WEL Partners
Posted on: March 1, 2010
Categories: Commentary
Vokes Estate v. Palmer 2009 CanLII 70132 (ON S.C.)
This recent decision by Price J. dealt with the issue of capacity to understand an oath or solemn affirmation and the capacity to communicate evidence. In this motion, the Court emphasized that it is not a simple matter for a party to be found incapable of testifying under oath and that evidence of cognitive impairment alone does not provide a sufficient basis to exempt that party from giving evidence.
Randal Palmer suffered a brain injury in 2003. Three years later, he was the driver in a car accident that caused the death of Michelle Vokes and her unborn child in another vehicle. Ms. Vokes’ family commenced an action naming Mr. Palmer as the defendant, and he in turn brought a Third Party Claim against Parkwood Hospital on the basis that the Hospital had previously found him fit to drive when it should have been clear that he could not drive safely. In the course of the litigation, Mr. Palmer’s sister was appointed litigation guardian.
When Mr. Palmer was to be examined for discovery, his lawyer refused to have him take an oath or solemn affirmation arguing that Mr. Palmer’s brain injury rendered him incapable of doing so. Mr. Palmer’s examination for discovery proceeded without him taking an oath or solemn affirmation and a transcript was produced.
Six months later, Mr. Palmer’s lawyer submitted a report from a social worker and SDAcertified capacity assessor that stated that Mr. Palmer was indeed incapable of understanding the nature of an oath or affirmation. The Hospital then brought this motion for an order directing Mr. Palmer to be examined, this time under oath or solemn affirmation. Mr. Palmer opposed the motion, maintaining that he was incapable of understanding the nature of an oath or affirmation, and incapable of communicating his evidence.
In reviewing the issues before it, the Court emphasized that parties can only be exempted from examinations for discovery in highly exceptional circumstances and that the burden of establishing that an exemption is appropriate by reason of incapacity falls squarely on the party seeking to be exempted.
The Court referred to subsection 18(1) of the Ontario Evidence Act that provides that “a person of any age is presumed to be competent to give evidence” as well as subsection 2 16(1) of the Canada Evidence Act that directs courts faced with the question of capacity to testify, to examine “(a) Whether the witness understands the nature of an oath or solemn affirmation; and (b) Whether the witness is able to communicate his evidence.”
The Court looked closely at the capacity assessment provided by Mr. Palmer’s lawyer, as well as the transcript of Mr. Palmer’s unsworn examination for discovery. In respect of the capacity assessment, the Court was not satisfied that the capacity assessor was qualified to specifically address capacity to take an oath or to communicate evidence. The Court also found that the assessment itself dealt with general matters of the defendant’s cognitive impairment and the fact that a litigation guardian had been appointed, and not the specific question of his ability to understand the nature of an oath or solemn affirmation or to communicate his evidence.
In scrutinizing the discovery transcript, Price J. found that Mr. Palmer had testified that he understood the importance of telling the truth and that he knew it was wrong to tell a lie. The transcript also showed that the defendant had been able to answer questions posed to him and that when he did not know an answer or when he disagreed with a point, he clearly indicated his lack of knowledge or disagreement. The Court pointed out that the threshold for giving evidence is not high. A capable witness is required to be able to observe, recollect and communicate but is not required to communicate to a
level of perfection.
The Court emphasized that medical evidence is required for a finding that a person is incapable of testifying and that even with the appropriate evidence, the standard of proof is high. Justice Price was not satisfied that the high standard had been met in this case and ordered the defendant to re-attend for examination for discovery and to take an oath or solemn affirmation at the examination. The fact that the defendant had suffered a serious brain injury and required a litigation guardian did not lead to the conclusion that he was incapable of understanding an oath or solemn affirmation or of communicating evidence. In spite of his demonstrated cognitive impairment, Mr. Palmer was still presumed capable of testifying under oath and was required to do so by the Court.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Link to PDF copy of this Case Comment as presented in OBA Deadbeat, Vol. 28, No. 3, March 2010
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