COURT FILE NO.: CV-17-3509
DATE: 2022 10 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TAJAMMUL HUSSAIN RANA and PREMIER TECHNICAL CONSULTANT LTD.
Plaintiffs
- and -
MOHAMMAD ZAKIR RAMZAN, 2182224 ONTARIO INC. and MOHAMMAD YOUSUF
Defendants
R. S. Mann, for the Plaintiffs
T. Walker and J. Koenig, for the Defendants
HEARD: September 27, 2022
MID-TRIAL RULING RE: CRIMINAL CHARGES
DALEY J.
[1] The plaintiffs were granted leave in this action pursuant to rule 53.08(1) to use a number of late-disclosed documents for the sole purpose of impeaching the evidence of a defence witness.
[2] As a term of the order granting leave to the plaintiffs the defendants’ counsel were entitled to oppose the use of any of the documents on any grounds they would have otherwise been entitled to apart from the late disclosure of the documents: Rana et al v. Ramzan et al, 2022 ONSC 5638.
[3] During examination in chief of a witness called by the defendants, namely Noman Yousuf, this witness denied having ever been convicted of a criminal offence.
[4] During the cross-examination of this witness, plaintiffs’ counsel proposed to cross-examine him on evidence contained in one of the late disclosed documents, in which there were details of fraud charges brought against the witness.
[5] Counsel for the defendants opposed this line of cross-examination.
[6] For the oral reasons given during the trial, counsel for the plaintiffs was denied the right to cross-examine this witness on the proposed line of cross- examination as it was improper and further, he was directed not to cross-examine the witness with respect to the factual underpinnings of the charges nor as to the outcome of the charges.
[7] A voir dire was conducted, in the absence of the witness, during which it was disclosed by counsel for the plaintiffs that the fraud charges brought against the witness were not related to any of the issues at stake in this action. It was further confirmed that counsel for the plaintiffs had no evidence that the witness had been convicted of the charged offences.
[8] It was urged on behalf of the plaintiffs that counsel should still be entitled to explore in cross-examination the facts underlying the fraud charges even though there was no evidence that the witness was convicted of any of the charges.
[9] By asking the witness if he had been convicted of a criminal offence counsel for the defendants did put the witness’ character in issue: R. v. Morris 1978 CanLII 168 (SCC), [1978] 43 CCC (2d) 129 (SCC) at pp 137 – 138.
[10] However, the purpose of the question as posed was to place the burden on counsel for the plaintiffs to adduce contrary witness’ evidence proving that he was in fact convicted of a criminal offence, such proof being adduced pursuant to section 22 (1) of the Evidence Act, R.S.O. 1990, c. E.23.
[11] Counsel for the plaintiffs submitted that he should be allowed to pursue cross-examination as to the facts underlying the charges of fraud given that it is asserted in the statement of claim that the defendants committed a fraud resulting in the plaintiffs’ loss. However, the witness in question is not a party to this action.
[12] The defendants opposed the line of cross-examination on the basis that, in the absence of evidence of a conviction, the line of questioning should be denied. Furthermore, if the line of questioning was to be considered, the proper balancing of the probative value and the prejudicial effect would favour exclusion of any such cross-examination.
[13] As the documentation relating to charges against the witness had been in the hands of the plaintiffs for several months, they could have applied for a certificate of conviction, if one existed. An absolute or conditional discharge does not constitute a conviction.
[14] Turning to first principles, evidence of alleged discreditable conduct on the part of a party or a witness in a civil or criminal proceedings, other than that which forms the subject matter of the case, is generally barred by the bad character exclusionary rule in all but exceptional cases: R. v. Handy, 2002 SCC 56, [2002] 2 SCR 908.
[15] Evidence as to alleged criminal occurrences which resulted in charges are connected with nothing more than unproven allegations. The prejudicial effect of admitting unproven allegations is very high when measured against the probative value which in turn is extremely low given that the unproven allegations are in no way connected with the issues in this action: R. v. Goro, 2017 ONSC 1247; Lawrence v. Thornton, 2013 CarswellOnt 12632.
[16] For these reasons the plaintiffs’ were denied the right to cross-examine the witness with respect to the criminal charges, as alleged.
Daley J.
Released: October 6, 2022
COURT FILE NO.: CV-17-3509
DATE: 2022 10 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TAJAMMUL HUSSAIN RANA and PREMIER TECHNICAL CONSULTANT LTD.
Plaintiffs
- and –
MOHAMMAD ZAKIR RAMZAN, 2182224 ONTARIO INC. and MOHAMMAD YOUSUF
Defendants
MID-TRIAL RULING RE CRIMINAL CHARGES
DALEY J.
Released: October 6, 2022