K. Smith

The appellant appealed a decision of the Consent and Capacity Board upholding her attending psychiatrist's finding that she was incapable of consenting to treatment for bipolar disorder.

The appellant argued the Board erred in its capacity finding and that she was denied procedural fairness due to late disclosure of documents.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the Board's application of the capacity test and noting that procedural fairness requirements were met as the appellant's counsel at the Board hearing had an opportunity to review the documents and did not seek an adjournment.

During a trial for damages arising from a train derailment, the plaintiff testified in-chief that he had no criminal record in Poland and filed a certified Polish document to that effect.

The defendants sought to cross-examine him using uncertified Polish court documents suggesting he had a criminal history.

The plaintiff objected, arguing the documents were uncertified and inadmissible under s. 23 of the Canada Evidence Act.

The court ruled that s. 23 is permissive and does not preclude proving foreign documents at common law.

The court allowed the defence to use the uncertified documents in cross-examination to challenge the plaintiff's credibility, noting the plaintiff would have the opportunity to explain or challenge the documents' reliability.