Judgment released: July 12, 2011   Link to judgment

In applying Rule 30, dealing with documentary discovery, the Court adopted the definition of “relevancy” set out at paragraph 2.35 of Sopinka, Lederman & Bryant,  The Law of Evidence in Canada, 3d ed (Toronto: Lexis Nexis, 2009), as follows: 

 2.35 A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s  A Digest of the Law of Evidence, where it is defined to mean:

… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:

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 respect to the latter.

Although the question of relevance and admissibility generally is for the trial judge, whether a fact bears the required relationship to another fact is not usually determined by the application of a legal test.  It is an exercised in the application of experience and common sense.  Thayer believed that logic (not the logic of deductive reasoning, but of knowledge and experience) provided the best guide to the application of this fundamental principle of evidence law.  Doherty J.A. in R. v. Watson stated that “relevance”:

 … requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”.  If it does then “Fact A” is relevant to “Fact B”.  As long as “Fact B” is in itself a material fact in issue or is relevant to a material fact in issue in the litigation, then “Fact A” is relevant and prima facie admissible.

Judgment Released: July 15, 2011   Link to Judgment

The scope of cross-examination on affidavits on a motion for summary judgment, which may end the litigation and potentially grant a final judgment between certain parties, has to be wider than on motions with a narrower focus.

Judgment Released: July 25, 2011   Link to Judgment

Where a party seeks substantial indemnity costs on a motion for summary judgment under Rule 20.06, it is the reasonableness of the motion itself, and not the reasonableness of an amount claimed, that is in issue.

Judgment Released: July 27, 2011   Link to Judgment

In this costs decision following a plaintiff’s victory at trial in a simplified procedure action, the plaintiff sought, among other things, disbursements relating to an expert report. The report had been served 12 days before the pre-trial and 38 days before trial. The defence objected to paying the costs of the report and the expert’s trial attendance because the report breached the 90-day service rule of Rule 53.03.  The Court held that although the report was served late, there was no prejudice, the defence had ample time to prepare for their examination, and the expert evidence was helpful. Nonetheless, the Court stated that the breach of the rule “must be sanctioned” and deducted $2,500 from the disbursements claimed for the report.