ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, MATLOW and J. MACDONALD JJ.
B E T W E E N:
MONTRI BHROMSUWAN and BENJAWAN BHROMSUWAN
Mr.Rod Byrnes, for the Appellants
Plaintiffs (Appellants)
- and -
THE CANADA LIFE ASSURANCE COMPANY
Mr. Peter H. Griffin, for the Respondent
Defendant (Respondent)
A N D B E T W E E N:
BENJAWAN BHROMSUWAN
Plaintiff (Appellant)
- and -
CAMPAGNIE D’ASSURANCE-VIE CIBC LIMITEE CIBC LIFE INSURANCE COMPANY LIMITED
Defendant (Respondent)
A N D B E T W E E N:
MONTRI BHROMSUWAN and BENJAWAN BHROMSUWAN
Plaintiffs (Appellants)
- and -
THE MANUFACTURERS LIFE INSURANCE COMPANY
Defendant (Respondent)
Mr. Rod Byrnes, for the Appellant
Mr. Robert Howe/Mr. David Cherepacha,
for the Respondent
Mr. Rod Byrnes, for the Appellants
Mr. Blair Groff, for the Respondent
Heard: January 6th & 7th, 2003
REASONS FOR JUDGMENT
(1) The issue tried was whether, pursuant to section 208 of the Insurance Act, R.S.O. 1990 Ch. I.18, the evidence was sufficient to declare that Monthol Bhromsuwan is dead. Monthol Bhromsuwan’s life was insured pursuant to various policies issued by the respondents. The trial judge held that there was insufficient evidence to prove that a dead body found in Phuket, Thailand was that of Monthol Bhromsuwan, and to prove that Monthol Bhromsuwan is dead. He therefore dismissed the application for a declaration pursuant to section 208.
(2) The appellants raised a number of grounds of appeal. With the exception of the grounds based upon the use made by the trial judge of hearsay evidence, we conclude that the appellants have failed to demonstrate reversible error.
(3) Turning to the hearsay evidence issues raised by the appellants, it is apparent from the trial transcript that all counsel sought to rely on hearsay evidence, where it assisted the client’s position. However, the trial transcript does not disclose any mention of hearsay evidence being used for a truth purpose on the basis of its evidentiary necessity or reliability. All counsel agree that this issue was not raised at trial either by counsel or by the trial judge. In our opinion, the proper course was for counsel to advise the trial judge of their intentions and to request rulings, either at the commencement of trial or prior to leading such evidence.
(4) In a civil trial, it is also open to counsel to agree that hearsay evidence meets the criteria of necessity and reliability and is therefore admissible for a truth purpose, subject to the trial judge’s discretion. However, in this trial, we conclude there was no such agreement. Each counsel, for his own reasons, relied on hearsay evidence for truth purposes and their respective approaches to the introduction of such evidence therefore happened to coincide most of the time. As a result, hearsay evidence was introduced without objection, with one significant exception to which we will refer subsequently.
(5) Mr. Griffin made submissions which demonstrate the above approach. In objecting to a witness providing his understanding of what hearsay evidence meant, Mr. Griffin stated in part “… we are hearing what someone else told him and I don’t expect we are going to hear from that person, so that we would take the answer we were given, but for this witness then to try and interpret that answer I think is perhaps a bit of a stretch.”
(6) The objection to the admission of hearsay evidence at trial which is significant for present purposes was made by Mr. Brynes, counsel for the appellants. He objected to the introduction in evidence of the reports of the respondents’ investigators and to the calling of these investigators. One basis of objection was the hearsay nature of this proposed evidence. However, Mr. Byrnes did not complete his submissions in support of excluding this hearsay evidence. As he began this aspect of his submissions, the trial judge interjected and stated,
“I’m quite capable of fettering (ferreting) out what is hearsay and what isn’t and giving the appropriate weight to any witness’s evidence, but I can tell you in this case I want as much help as I can possibly get.” (parentheses added)
Appellants’ counsel replied as follows:-
“Very well, your Honour. When it comes time for this material to go in, I could file cases, but if your Honour has made up your mind, perhaps there is no point in pursuing the matter any further.”
The trial judge did not respond to this statement.
(7) Mr. Griffin, who was about to call his investigator and to seek to file the investigator’s report in evidence, then advised the court that he had concluded that it would be “…helpful in this process to provide the reports and use the reports to help your Honour through the evidence.” He continued, referring to evidence called by the appellants,
“you heard an awful lot about things that had been learned. …we’ve tried to deal with it as best as we can and make sure your Honour has the best evidence we can give you.”
(8) The trial judge responded to this by noting that the Order directing the trial of the issue referred to everyone putting their best foot forward. He stated,
“I’m going to accept anybody’s best feet.”
(9) We agree that, as appellants’ counsel thought, the trial judge had made up his mind generally to permit the introduction of hearsay evidence. This included the evidence of the investigators and their reports, despite the appellants’ objection to the admission of this evidence. The trial judge proceeded on the basis that he would sort out what was hearsay and what was not hearsay, and he would give “appropriate weight” to “evidence”. We conclude that the trial judge stated, in effect, that he would apply the hearsay rules after receiving all evidence, he would distinguish appropriately between hearsay and non-hearsay in determining what properly was evidence, and he would give weight, as appropriate, only to proper evidence.
(10) Given the express and timely objection to the introduction of this hearsay evidence and the trial judge’s statement that he would distinguish appropriately between hearsay and non-hearsay evidence, we reject the argument that the appellants waived reliance on the exclusionary evidentiary principles which apply to hearsay evidence, whether by presenting their own hearsay evidence, or otherwise. The appellants are entitled to assert on this appeal that the trial judge was in error in using the hearsay evidence to which they objected for any decisional purpose. This is the only hearsay evidence upon which we base our decision.
(11) The hearsay evidence to which the appellants objected was led through Karl Putinta, an investigator retained by the respondent, the Canada Life Assurance Company. Putinta testified about what he had been told by Mae Sing, the sister of Monthol Bhromsuwan. Putinta testified that, shortly after the body was found and Monthol Bhromsuwan’s beneficiaries claimed pursuant to his life insurance policies, Mae Sing contacted the respondent insurers anonymously and told them that Monthol Bhromsuwan was not dead and that he had made it appear that he was dead. Eventually Mae Sing identified herself and agreed to meet with Putinta. He testified that she provided him with certain reasons for her allegations. According to Putinta, Mae Sing told him that she had overheard a conversation between Monthol Bhromsuwan and another person, about four years before the body was discovered in Thailand, in which they discussed that a person had gone to Thailand, died of a heart attack, and a claim was made for life insurance which was paid. According to Putinta, Mae Sing stated that this conversation also included a statement that “if we go to a foreign country and we died, then our insurance policies appear to be paid off very quickly.” Putinta testified that Mae Sing felt that that conversation was the onset of the planning or the alleged planning of Monthol Bhromsuwan’s simulated death. Part of this information from Mae Sing was repeated in Putinta’s report, which was filed as an exhibit.
(12) Mae Sing refused to appear as a witness at trial. She was brought to Court pursuant to a bench warrant. She responded to most questions by stating that she did not know or could not recall the answers. Mr. Griffin, who called this witness, was granted leave to cross-examine her. He questioned her respecting her assertions to Putinta about Monthol Bhromsuwan’s overheard conversation. She did not admit that she had made this prior utterance to Putinta. She did not adopt any part of her alleged prior utterance as truthful. She did not testify that Monthol Bhromsuwan had simulated his death or that she believed he had.
(13) The trial judge gave extensive consideration to the evidence that Monthol Bhromsuwan is not dead, including the conversation allegedly overhead by Mae Sing about which Putinta testified. The trial judge recognized in his Reasons that the source of the purported evidence was Putinta, not Mae Sing. After addressing other aspects of Putinta’s evidence about Mae Sing, the trial judge stated,
“It is interesting to note that after Mae arrived in Canada, approximately four years prior to Monthol’s alleged death, when Mae alleged she overheard the conversation about someone collecting on an insurance policy, Monthol dramatically increased his insurance coverage.
In October, 1993, Monthol purchased the Manufacturers Life policy in the amount of $500,000.00 with Montri and Benjawan as beneficiaries. In December, 1993, he purchased a $200,000.00 policy from Canada Life with Elma as the beneficiary. From 1993 to 1996 he periodically increased his insurance coverage.”
(14) The trial judge also described a statement made in evidence by one Sayam, a witness, as lending “some support to Mae’s belief that Monthol planned to fake his death”. We will return to the trial judge’s understanding of Sayam’s evidence.
(15) The trial judge then reviewed a number of alleged motives for Monthol Bhromsuwan faking his death. After considering his marital life, health, finances, stature in the Thai community and the large amount of insurance on his life, the trial judge concluded that Monthol Bhromsuwan’s “actions in Canada” were dishonest. He also held that Monthol Bhromsuwan had sufficient motives to desire that his beneficiaries collect on his insurance policies and that, because of his dishonest nature, he was capable of staging his own death. From the whole of the Reasons, we think these findings played a part in the outcome, and may well have been determinative.
(16) However, the trial judge did not state the basis for these findings. He did not state that he based these findings solely on his findings in respect of Monthol Bhromsuwan’s marital life, health, finances, community stature or large amount of life insurance. We conclude it is likely that the trial judge, in finding that Monthol Bhromsuwan was dishonest, was capable of staging his own death and wanted his beneficiaries to receive payment of insurance on his life, relied in part on the evidence led through Putinta that Mae Sing overheard Monthol Bhromsuwan’s conversation about quick payment of insurance proceeds following a foreign death, and about Mae Sing’s belief that Monthol Bhromsuwan planned to fake his death. Our reasons for this conclusion are as follows.
(17) The court heard Putinta say that Mae Sing said that Monthol Bhromsuwan said things which appeared to disclose his thoughts. If the issue was what Monthol Bhromsuwan thought or planned, a person overhearing his utterances, such as Mae Sing, was entitled to testify about those utterances, and it would have been open to the trial judge to draw inferences therefrom respecting Monthol Bhromsuwan’s thoughts or plans. Mae Sing did not testify about those utterances.
(18) As mentioned in paragraph (13), the trial judge addressed what “Mae alleged” about Monthol Bhromsuwan’s conversation, based solely upon Putinta’s testimony as to Mae Sing’s out of court statement. The purpose for which this evidence was used determines whether it was properly admissible. If the issue was what Mae Sing asserted or alleged, once again, a person overhearing her utterances such as Putinta was entitled to testify about those utterances. However, if the issue was Monthol Bhromsuwan’s utterances, as evidence of his thoughts or plans, then Mae Sing’s allegations were capable of proving Monthol Bhromsuwan’s utterances only if her allegations were used for a truth purpose. Mae Sing’s allegations were not made in her testimony at trial, but were put in evidence by Putinta, based upon her out of court statement to him. If Mae Sing’s allegations were used for a truth purpose, such as proving Monthol Bhromsuwan’s utterances and thus his thoughts or plans, Mae Sing’s allegations are hearsay.
(19) In considering whether this hearsay evidence was used for a truth purpose, we note that this trial was directed to whether there was sufficient evidence that Monthol Bhromsuwan is dead, and one issue was the defense assertion, based in part on Mae Sing’s allegations, that he had simulated his death. It was in this evidentiary context that the trial judge considered Putinta’s evidence about what Mae Sing alleged.
(20) The trial judge found it “interesting to note” that, at and after the time of the conversation in which Mae Sing alleged that Monthol Bhromsuwan participated, he “dramatically increased his insurance coverage”. In our view, the trial judge’s interest in steps consistent with the plan alleged by Mae Sing to Putinta suggests that the trial judge considered whether there was evidence which confirmed Mae Sing’s out of court assertion that Monthol Bhromsuwan had such a plan.
(21) That the trial judge was looking for some confirmation of hearsay evidence is established, in our opinion, by the fact that he turned his mind to the question of, and found that there was “some support” for Mae Sing’s belief that Monthol Bhromsuwan “planned to fake his death.” As mentioned, he found such confirmation in Sayam’s testimony.
(22) We think that the trial judge’s search for evidentiary confirmation of this hearsay evidence means that the trial judge likely turned his mind to the reliability of this hearsay evidence. Reliability is one of the criteria of the principled basis upon which hearsay evidence may be used for a truth purpose. While the trial judge’s Reasons do not address the other criterion of necessity, the transcript does confirm the trial judge’s desire to have “as much help as I can get”. This statement was made in reference to the hearsay evidence in issue, as an explanation for permitting it to be introduced at trial. In our opinion, this statement discloses that the trial judge regarded the admission of this hearsay evidence as necessary for some purpose, even though he also stated that he would sort out the hearsay from the non-hearsay evidence. This consideration of the criteria of necessity and reliability confirms that the trial judge likely viewed the hearsay evidence in issue as some evidence of the truth of what was asserted in that hearsay evidence.
(23) What the trial judge said in respect of both the conversation which Mae Sing allegedly overheard in Canada and her belief that Monthol Bhromsuwan planned to fake his death, if used for a truth purpose, is capable of demonstrating Monthol Bhromsuwan’s “dishonesty in Canada”. His dishonesty in Canada is the basis upon which the trial judge concluded that Monthol Bhromsuwan was capable of staging his own death. Further, what the trial judge said in this regard, if used for a truth purpose, could assist in demonstrating Monthol Bhromsuwan’s desire or motive to have his beneficiaries collect upon his life insurance policies.
(24) We find confirmation that the trial judge used this hearsay evidence for a truth purpose in another part of his reasons. In expressing his conclusion that the evidence was insufficient to prove that Monthol Bhromsuwan is dead, the trial judge stated that he had reviewed “all of the evidence”. At no point, did he turn his mind to sorting hearsay from properly admissible evidence, as he said he would. By considering “all of the evidence”, the trial judge treated the hearsay, including that to which objection was made, as evidence. He used the hearsay in issue for a truth purpose, without hearing counsel on that point.
(25) We have referred to the statement of Sayam, which the trial judge concluded lent some support to Mae Sing’s belief that Monthol Bhromsuwan planned to fake his death. In his testimony, Sayam addressed what he had said to an investigator, Mr. Daley, about Monthol Bhromsuwan’s alleged death. The trial judge found that Sayam testified, “I thought Monthol may have come up with some kind of trick.” Sayam did not say this. The trial judge has misapprehended Sayam’s evidence. Testifying by video conference link from Thailand through an interpreter, Sayam stated,
“When I met with Aranya, she was crying and telling about her husband’s death. That was when I believed that her husband had already passed away. The time that Mr. Daley came to see me I did not believe or think it was true. I thought he might just come up with something. Sometimes we don’t know, he might have some kind of tricks, but when I saw Aranya and I spoke to her I totally believed that Mr. Bhromsuwan is dead.” (underlining added)
It will be seen that Sayam referred to two different male persons, namely Aranya’s husband (Monthol Bhromsuwan) and Mr. Daley, before he stated “…he might just come up with something…he might have some kind of tricks…”. Sayam did not specify the male person to whom he was referring at that point in his testimony.
(26) Subsequently, in cross-examination, Sayam was questioned about the identity of the person whom he thought may have engaged in trickery. This evidence is as follows:-
“Q: I’m suggesting to you that you told Mr. Daley that you knew Monthol was alive; isn’t that correct?
A: The first time Mr. Daley talked to me I did not believe him.
Q: Just to clarify, you didn’t believe that Monthol was dead; isn’t that correct?
A: That’s right.
Q: And you thought this was one of Monthol’s tricks, isn’t that right?
A: No, I thought it was the trick of Mr. Daley...”
(27) Sayam was then cross-examined by another counsel as follows:-
“Q: Didn’t you tell us that you thought that Monthol’s death was one of his tricks? Isn’t that what you have told us earlier ?
A: The lawyer who is questioning me is making up stories. I didn’t say anything like that.
(28) Sayam explicitly denied that he thought that Monthol Bhromsuwan may have come up with some kind of trick respecting his death. Consequently, Sayam’s evidence cannot support Mae Sing’s belief that Monthol Bhromsuwan planned to fake his death. The trial judge erred in concluding that Mae Sing’s alleged belief, demonstrated only by hearsay evidence, was confirmed by Sayam’s evidence.
(29) In conclusion, we find that the trial judge allowed the hearsay evidence in issue to be admitted into evidence despite the appellants’ objections, stating that he would sort out the hearsay from the non-hearsay evidence. He did not do so. In our opinion, it was palpable and overriding error for the trial judge to use this hearsay evidence for a truth purpose, particularly when he had told counsel that he would apply the hearsay rules by sorting the hearsay from the non-hearsay evidence. Further, it is our opinion that the trial judge’s use of Putinta’s hearsay evidence about what Mae Sing allegedly told him about the contents of the overheard conversation involving Monthol Bhromsuwan and about her belief that Monthol Bhromsuwan faked his death likely affected both his reasoning and the result. We therefore allow the appeal and set aside the judgment in issue.
(30) The fact that there is admissible evidence capable of supporting the trial judge’s conclusions does not save the result, in our opinion, because the trial judge’s Reasons show that the hearsay evidence in issue likely affected both his appraisal of the rest of the evidence respecting a simulated death and his conclusions. Consequently, we cannot say that if the hearsay evidence in issue had been excluded, the outcome necessarily would have been the same.
(31) The appellants submitted that we should redecide the case after excluding the impugned evidence. We decline to do so. There is videotaped evidence which we are able to appraise, but there is also viva voce evidence which is before us only in transcript form. It is essential that the assessment of credibility, reliability and weight be undertaken by a trial judge who will have the benefit of hearing and seeing all of the witnesses. We therefore order a new trial.
(32) In these circumstances, it is not necessary to address the appellants’ motion to introduce fresh evidence on this appeal. However, in the event of an appeal from our Order, we wish to record that, if we had been required to do so, we would have dismissed the motion to introduce fresh evidence on appeal. The proposed fresh evidence is all hearsay. It is not possible to determine the credibility or reliability of what is tendered as fresh evidence. Further, it is significant to us that the proposed evidence is not dispositive of any issue. It simply adds to the confusion respecting the body found in Thailand.
(33) Having recorded our views respecting the motion to introduce fresh evidence, we wish to add that, at any new trial, it will be within the jurisdiction of the trial judge to determine the admissibility of evidence, including evidence not led at the first trial.
(34) If counsel cannot agree on costs, the appellants shall deliver their costs submissions within ten days of the release of these Reasons. The respondents shall deliver their costs submissions within ten days thereafter. The appellants’ reply, if any, shall be delivered within five days thereafter. All costs submissions shall be filed in triplicate.
THEN J.
MATLOW J.
J. MACDONALD J.
DATE:
COURT FILE NO.: 127/2001
DATE: 20030210
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, MATLOW and J. MACDONALD JJ.
B E T W E E N:
MONTRI BHROMSUWAN and BENJAWAN BHROMSUWAN
Plaintiffs (Appellants)
- and –
THE CANADA LIFE ASSURANCE COMPANY
Defendant (Respondent)
A N D B E T W E E N:
BENJAWAN BHROMSUWAN
Plaintiff (Appellant)
- and -
CAMPAGNIE D’ASSURANCE-VIE CIBC LIMITEE CIBC LIFE INSURANCE COMPANY LIMITED
Defendant (Respondent)
A N D B E T W E E N:
MONTRI BHROMSUWAN and BENJAWAN BHROMSUWAN
Plaintiffs (Appellants)
- and -
THE MANUFACTURERS LIFE INSURANCE COMPANY
Defendant (Respondent)
REASONS FOR JUDGMENT
RELEASED: February 10, 2003