CITATION: Chandra v. CBC et al, 2015 ONSC 4063
COURT FILE NO.: CV-06-310261
DATE: 20150611
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. RANJIT KUMAR CHANDRA
Plaintiff
– and –
CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAAC, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND
Defendants
COUNSEL:
H.R. Bennett and J. Figliomeni, for the Plaintiff
C. Lonsdale and E. Marques, for the Defendants, Canadian Broadcasting Corporation, Chris O’Neill-Yates and Lynn Burgess
HEARD: 4 June 2015
REASONS FOR DECISION
(Ruling regarding affidavit of Bing Au)
MEW J. (orally):
[1] The plaintiff seeks the court’s leave to allow the evidence of a witness, Bing Au, contained in an affidavit which he swore on 2 July 2010, to be read in to the record as Mr. Au’s evidence at trial.
[2] Mr. Au died unexpectedly on 29 August 2013 at the age of 63. He worked in the immunology laboratory at Memorial University of Newfoundland (“MUN”) where he assisted the plaintiff in this defamation action, Dr. Ranjit Chandra and, in that capacity, worked on Dr. Chandra’s research projects.
[3] The CBC documentary which gives rise to the plaintiff’s action concerns, among other things, claims that the plaintiff fabricated research results which were then used as the basis for published scientific studies.
[4] The affidavit in question was sworn in connection with a motion directed at MUN seeking inspection and preservation orders in respect of the contents of research samples contained in six freezers said to be in MUN’s possession or control. MUN is no longer an active participant in this action, the trial of which commenced on 27 April 2015 before me and a jury. The other defendants took no position on the freezer motion. Mr. Au was not cross-examined.
[5] Both the plaintiff and the CBC defendants, who oppose the motion now before me, agree that the Au affidavit is hearsay evidence which is presumptively inadmissible unless it has been established by the party seeking the admission of the evidence that the principled exception to the hearsay rule applies.
[6] The leading authority on the principled exception to the hearsay rule is R. v. Khelawon, 2006 SCC 57, described in that case by Charron J. in these terms (at para 2):
When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.
[7] CBC concedes that necessity is not in issue. The dispute concerns the “threshold” reliability of the evidence. Whether, if admitted, the hearsay statement will or will not ultimately be relied upon in deciding the issues in this case will be a matter for the trier of fact – as matters presently stand in this case, the jury – to determine at the conclusion of the trial based on a consideration of the affidavit in the context of the entirety of the evidence.
[8] Having regard to the principles enunciated in Khelawon and the other cases counsel referred me to, factors favouring a finding of threshold reliability include the following:
a. The affidavit is a sworn statement taken under oath in connection with a motion in the present action.
b. Reference to Mr. Au’s affidavit was made by Dr. Chandra during the course of his examination for discovery and in one of his supplementary affidavits of documents.
c. CBC had the opportunity to cross-examine Mr. Au on his affidavit.
d. Statements contained in Mr. Au’s affidavit have been corroborated by evidence given by other witnesses during the course of the trial.
e. There are no reasons to doubt Mr. Au’s veracity.
f. The affidavit contains the best evidence of what Mr. Au did as a member of Dr. Chandra’s team.
[9] Factors favouring a rejection of the threshold reliability include the following:
a. CBC’s right to cross-examine Mr. Au was theoretical. Given that CBC did not take a position on the motion in respect of which the affidavit was tendered, there was no reason for the CBC to cross-examine Mr. Au.
b. The affidavit was taken by Dr. Chandra’s lawyer for the purpose of supporting a motion brought by Dr. Chandra against an adverse party.
c. There were memory issues – in the first paragraph of his affidavit Mr. Au says “I do not recall the exact years when I graduated from MUN however I believe it was in mid-1980”.
d. There is a lack of contemporaneity – the affidavit was sworn in July 2010 but refers to 20 years of work in the 1980s, 1990s and early 2000s.
e. Many of the statements made by Mr. Au are general in nature, e.g. “I was aware that Dr. Chandra did a number of baby formula studies”.
f. There are a number of statements that CBC would doubtless want to cross-examine on, examples of which would include:
i. “I worked with Dr. Chandra on the Elderly study…” – which elderly study or studies are being referred to?
ii. Mr. Au’s involvement in the labelling of samples – are they samples relevant to this case?
iii. Why was Mr. Au credited with assisting in one paper on a vitamin study but not another?
g. Concerns about the ability of a properly instructed jury to evaluate evidence which, even if otherwise admissible, should properly be regarded as having at best low probative value.
[10] In evaluating these factors, two of the indicia of reliability articulated in Khelawon deserve special mention. Is the hearsay evidence:
a. inherently trustworthy; and
b. adequately testable?
[11] With respect to the inherent trustworthiness of the evidence there are a number of unknowns. It is not known the extent to which the affidavit consists of Mr. Au’s own unprompted words or the wordsmithing of Dr. Chandra’s lawyers. Another consideration is that his evidence is not in whole in part contrary to his own interests.
[12] On the other hand, the evidence was given under oath – a “significant badge of reliability” (per Corbett J. Cormack Animal Clinic Ltd. v. Potter 2009 CanLII 713 (ON SC) at para 44). There was no apparent motive for Mr. Au to fabricate evidence. And there is other evidence corroborating the fact and nature of his involvement in and association with Dr. Chandra’s work.
[13] In terms of whether the evidence is adequately testable, I agree with the CBC that there was no meaningful opportunity for CBC to cross-examine Mr. Au. And I have no doubt that Mr. Au would have been thoroughly cross-examined at trial, just as other members of the team who have testified have been.
[14] As with any question concerning whether or not to admit evidence that is presumptively inadmissible, as the gatekeeper I must consider whether the probative value of the evidence outweighs its prejudicial effect. This is particularly so where the probative value of the evidence is marginal. In that regard, it was suggested in argument that because the trier of fact will, absent an order to the contrary between now and the end of trial, be the jury, the risk of prejudice is greater than it would be in a judge-alone trial.
[15] I do not accept that on the issue of threshold reliability, the evaluation or the result should be different depending on whether or not the trier of fact is a jury. The jury is required to follow my instructions on the law and those instructions should and will include direction on how to evaluate the hearsay statements of a person who is not called as a witness at trial.
[16] The plaintiff’s burden, ultimately, is to establish threshold reliability on a balance of probabilities. While it remains to be seen how much probative value Mr. Au’s affidavit will have, I am persuaded, having regard to the factors discussed in Khelawon, that the threshold reliability of the evidence has been established. The requirement of necessity is satisfied because Mr. Au has died. The evidence was given under oath. There is other evidence to place Mr. Au’s evidence into context and against which Mr. Au’s evidence can be weighed and measured. The trier of fact should have the opportunity to decide what if any weight to attach to this evidence.
[17] The plaintiff will, accordingly, be permitted to read Mr. Au’s affidavit into the record and to file a copy of his affidavit as a trial exhibit. After the affidavit has been read I will provide a mid-trial instruction to the jury that:
a. Mr. Au has died.
b. He has not been cross-examined on his affidavit.
c. His affidavit was sworn in connection with a motion seeking inspection and preservation orders in respect of the contents of research samples contained in six freezers said to be in MUN’s possession or control, a motion on which CBC took no position.
d. When they consider this evidence, they will have to decide what, if any, weight to attach to the evidence, and that in doing so they should consider the circumstances in which the affidavit was provided, and anything else that may make Mr. Au’s evidence more or less believable.
e. That in determining how much or how little of this evidence the jury should believe or rely upon they should consider whether it might be less reliable than other evidence that has been given because they did not see or hear Mr. Au testify and that unlike the witnesses who have testified before them, he could not be cross-examined.
[18] I will, if applicable, incorporate a similar instruction into my final instructions to the jury at the end of the trial.
Mew J.
Delivered: 11 June 2015
CITATION: Chandra v. CBC et al, 2015 ONSC 4063
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. RANJIT KUMAR CHANDRA
Plaintiff
– and –
CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAAC, LYNN BURGESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND
Defendants
ORAL REASONS FOR DECISION
Mew J.
Delivered: 11 June 2015