CITATION: Kwok v. Abecasses, 2016 ONSC 7260

COURT FILE NO.: CV-12-0208

DATE: 20161121

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JIEFU KWOK, Plaintiff

AND:

DAVID ABECASSIS, SIMON ABECASSIS and

THE PERSONAL INSURANCE COMPANY, Defendants

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: T. Lehman and L. Fitzgerald-Husek, for the Plaintiff

D. H. Rogers and D. M. Rogers, for the Defendants David Abecassis and Simon Abecassis

T.J. McCarthy, for the Defendant, The Personal Insurance Company

HEARD: November 14, 2016

ENDORSEMENT

[1] The Plaintiff moved for an order permitting the admission of 911 calls into evidence both as an exception to the hearsay rule and on the basis of the principled approach outlined in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.

[2] The motion was granted, and this court endorsed:

For more fulsome reasons to be released at a later date, the plaintiff’s motion is granted. All of the 911 calls are admissible under the principled approach to admission of hearsay set out in R. v. Khelawon, as the tests for necessity and threshold admissibility have been met. The evidence is relevant to the central issues of liability of each party, and the probative effect outweighs the potential prejudicial effects.

The assertions of the defence, that the hearsay statement of Mr. Chan given to Aviva’s adjustor on February 23/13 must then be admitted to level the playing field and to complete the evidence of Mr. Chan, can only be considered if the defendants bring such a motion for the court’s consideration.

Costs of the motion are reserved.

Reasons

[3] The 911 calls were all made within approximately two and a half minutes of each other on February 22, 2011. The callers reported the accident that is the subject matter of the trial. One caller, who identified himself as David Chan, observed the initial maneuver by an unidentified motorist that may have caused the loss of control of the plaintiff’s vehicle. None of the callers reported observing a collision between the plaintiff’s vehicle and the defendant Abecassis vehicle, but the calls are relevant to establishing a timeline in relation to the initial events that caused the plaintiff to collide with the concrete median, and the collision between the plaintiff’s and the Abecassis vehicle. The contents of the calls is potentially relevant to the central issue of the negligence of the unidentified driver, the Abecassis defendants and the plaintiff.

[4] All parties agree that the 911 calls are hearsay and presumptively inadmissible. The plaintiff seeks to introduce them at trial to prove the truth of the statements made therein.

[5] R. v. Khelawon confirmed that if hearsay evidence does not fall under a traditional exception, it may still be admitted if indicia of reliability and necessity are established, following the approach initially laid down in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R 531. Once necessity and reliability are established, the admission of hearsay evidence is not dependent on the availability of cross-examination: R. v. Khan, para. 32.

[6] “Necessity” has never been given a closed-ended definition. In R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at para. 37, the court indicated that the primary question is whether the relevant direct evidence is not available, for a variety of reasons. In R. v. Khelawon, at para. 78, the Court confirmed that “the principle is now well established, that necessity is not to be equated with the unavailability of the witness.” Further, an inability to recall events can fulfill the criteria of necessity: R. v. L(C), [1999] O.J. No. 3268 (C.A.), at para. 15.

[7] The 911 calls must be placed in the context of the plaintiff’s inability to recall the events surrounding the collisions. It is undisputed that he suffered a head injury during the collisions. He has deposed that he has no memory of the collision or the events leading up to it, and has no memory of speaking to the police regarding the collision. Although he provided a statement to the police on the date of the collision, he has deposed that it does not refresh his memory of the events of February 22, 2011.

[8] The 911 calls are necessary either because the callers have not been located and their evidence cannot be derived from another source, or, if located, those callers have no memory of either placing the call, or no or limited memory of the observations that they made at the time. In all cases, those witnesses who have been able to be contacted confirm that their memory would have been better in 2011 at the time that they placed the call. The caller who indicated to the dispatcher that he observed the initial interaction between the unidentified motorist and the plaintiff’s vehicle, Brian Chan, has been unable to be located despite exhaustive efforts. An adjuster with Aviva Canada Inc. was able to speak with Brian Chan on February 23, 2013, but since that phone call, no further contact has been possible.

[9] As the Court of Appeal pointed out in Peach v. Mitchell, 2006 CarswellOnt 5647, at para. 4, “the availability of evidence from another witness on the point in issue does not factor into the criteria of necessity” citing R. v. Smith, supra, at para. 35-36. The test is not whether the evidence in question could be obtained in other ways, accordingly, it is of little concern whether the plaintiff will, although not expected, testify to the events in question when he takes the stand at this trial. Mr. Chan’s evidence, along with the evidence of the other 911 callers, cannot be obtained in any way other than through those calls. Where the callers have been located, certainly the quality of their evidence, if testifying from memory, will not be the same as that contained in the 911 calls. As stated in Sopinka et al., The Law of Evidence in Canada, 4th ed. (Toronto:LexisNexis Canada Inc., 2014) at page 288:

In some instances, although the declarant is able to testify at trial, the better evidence may be the declarant’s out-of-court remarks made at a time much closer to the events in question. In this way, a fuller and more complete rendition of the events is achieved. (citation omitted)

[10] The circumstances associated with each of the 911 callers, being either their physical unavailability or an impaired memory of the events relayed in their calls, satisfies the criteria of necessity.

[11] The second part of the analysis is whether the evidence is reliable. This is a question of threshold reliability; the question of ultimately reliability is not to be pre-determined on this motion for a ruling on admissibility. The question is whether the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness so as to overcome the dangers arising from lack of cross-examination.

[12] In this case, the circumstances under which the statements were given provide a high degree of reliability regarding their accuracy. The calls were made almost contemporaneously with the observations made by the callers. The callers knew that they were calling emergency services, linking them to the police, and were speaking to an employee of such an agency. It can be assumed that they called because they wanted and expected their information to be acted upon. As such, they had heightened motivation to provide accurate information. Given the circumstances, it may have occurred to such callers that any untruthfulness could be detected, as other drivers may also have been placing 911 calls. In this vein, the submission of Mr. McCarthy that the 911 call of Brian Chan is inherently unreliable because there is no way of knowing whether it was a staged call placed by the plaintiff himself, is patently unlikely. None of the callers had a motive to lie. All were speaking spontaneously of the events just observed, without lengthy passages of time in which their memories might be inclined to fill in gaps or fabricate. Cumulatively, these circumstances provide a high degree of reliability for each of the statements.

[13] Having determined that the 911 calls are admissible under the principled approach to the admission of hearsay, I will not go on to consider whether they also fall within the traditional res gestae exception.

[14] Given the plaintiff’s lack of memory for events, these calls comprise some of the very limited evidence regarding liability. Mr. Chan’s observations appear to be the only evidence of the existence of the unidentified driver and what may have occurred between that unidentified vehicle and the plaintiff’s vehicle. The defendant Mr. Abecassis has no knowledge of what transpired with the plaintiff’s vehicle prior to the collision with his own vehicle. Because of the time stamps on the phone calls made by the various callers, together with the content of the calls, this evidence is helpful in painting a picture of how long the plaintiff vehicle may have been at rest following its initial collision into the guard rail before the defendant Abecassis’ vehicle hit it. That same information is also important to gain an understanding of how other drivers were behaving in relation to the plaintiff vehicle prior to the collision involving the Abecassis vehicle.

[15] The defendants were unable to point to any prejudice other than an inability to cross-examine which, as I have found, is ameliorated by the elevated circumstantial guarantees of reliability surrounding the making of these statements. The fact that the evidence may assist the plaintiff does not factor into the exercise of balancing the probative versus prejudicial effect of the evidence.

[16] In the result, I have determined that the evidence contained in the 911 calls should be admitted under the principled approach, and on balance, will further the truth seeking function of this trial.

HEALEY J.

Date: November 21, 2016