SUPERIOR COURT OF JUSTICE – FAMILY COURT
RE: BARBARA COHEN, Applicant
AND
STEVEN COHEN, in his capacity as Trustee of the Estate of Sidney Cohen and Susan Charendoff, Respondents
BEFORE: Justice A. Doyle
COUNSEL: Anne E. Posno and Melanie Battaglia, Counsel for the Applicant Barbara Cohen
Deborah Palter and Marta Siemiarczuk, Counsel for the Respondent Steven Cohen, in his capacity as Trustee of the Estate of Sidney Cohen
Jonathan Richardson, Counsel for Susan Charendoff
HEARD: October 14, 2022 and December 1, 2022 in Ottawa via Teleconference
ENDORSEMENT ON VOIR DIRE UNDER S. 18 OF THE ONTARIO EVIDENCE ACT
1On October 14, 2022, the parties agreed to a consent order that the Applicant, Ms. Barbara Cohen, is a “special party” within the meaning of Rule 2 of the Family Law Rules, O.Reg. 114/99 as am., (the “Rules”), and that Leonard Shore, a lawyer, would be her litigation guardian.
2This consent order is grounded in two experts’ reports, from geriatric specialists who agree that Barbara suffers from a major neurocognitive disorder – mild dementia – and she is unable to instruct counsel.
3The issue in this voir dire is whether Barbara is capable of testifying at the trial.
4On October 14, 2022, the court heard extensive oral submissions from the parties.
5The Respondent, Steven Cohen, in his capacity as trustee of the Estate of Sidney Cohen (the “Estate”) and the Respondent, Susan Charendoff, submit that Barbara has testimonial competence because she has the capacity to observe, recollect and communicate. In the alternative, the Respondents are requesting an order permitting the filing of the transcripts of Barbara’s three days of questioning on certain terms and conditions.
6On behalf of Barbara, it is argued that she lacks testimonial competence, and she is consenting to the filing of the transcripts from her three days of questioning. The transcripts can be filed with the court subject to the terms and conditions set out in the Respondents’ notices of motion and the court’s direction.
7After the hearing of the motion, I asked the parties to submit supplementary factums specifically dealing with s.18 of the Ontario Evidence Act, R.S.O. 1990, c. E.23,(the “Act”). The parties were also given an opportunity to provide oral submissions on December 1, 2022.
8For the reasons that follow, the court will examine Barbara in person under s. 18(2) of the Act. The parties are to arrange a one-hour hearing through the trial coordinator’s office. The hearing will take place in person but those who are out of town may attend via teleconference.
LEGAL FRAMEWORK
9The leading case in dealing with testimonial competence is R v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, where, at pp. 236-237, McLachlin C.J.C. on behalf of the majority of the Supreme Court stated:
Testimonial competence comprehends: (1) the capacity to observe (including interpretation); (2) the capacity to recollect; and (3) the capacity to communicate: McCormick on Evidence (4th ed. 1992), vol. 1, at pp. 242‑48; Wigmore on Evidence (Chadbourn revision 1979), vol. 2, at pp. 636‑38. The judge must satisfy him- or herself that the witness possesses these capacities. Is the witness capable of observing what was happening? Is he or she capable of remembering what he or she observes? Can he or she communicate what he or she remembers? The goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable. The enquiry is into capacity to perceive, recollect and communicate, not whether the witness actually perceived, recollects and can communicate about the events in question. Generally speaking, the best gauge of capacity is the witness's performance at the time of trial. The procedure at common law has generally been to allow a witness who demonstrates capacity to testify at trial to testify. Defects in ability to perceive or recollect the particular events at issue are left to be explored in the course of giving the evidence, notably by cross‑examination.
10The Canada Evidence Act, R.S.C., 1985, c. C-5, does not provide a statutory process.
11In R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at paras. 75-83, the Supreme Court summarized the process under s. 16 of the Canada Evidence Act as follows: there should be a voir dire to hear all the relevant evidence to determine the competence of the proposed witness, that the primary source of evidence should be the witness herself; other witnesses who have observed the witness can testify; expert evidence may be adduced if it meets the criteria for admissibility, but preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness.
12Then the trial judge must determine: (a) does the proposed witness understand the nature of an oath or affirmation, and (b) can she communicate the evidence? The court must determine if the witness can relate events by understanding and responding to questions.
13Section 18 of the Act is relevant in this matter as this is a civil case. It reads:
18 (1) A person of any age is presumed to be competent to give evidence. 1995, c. 6, s. 6 (1).
(2) When a person’s competence is challenged, the judge, justice or other presiding officer shall examine the person. 1995, c. 6, s. 6 (1).
(3) However, if the judge, justice or other presiding officer is of the opinion that the person’s ability to give evidence might be adversely affected if he or she examined the person, the person may be examined by counsel instead. 1995, c. 6, s. 6 (1).
14In Vokes Estate v. Palmer (Litigation Guardian of), 2009 70132 (ONSC), Justice Price commented that the questions for the court’s determination are similar under both the federal and provincial legislation.
15Counsel agreed that the word “shall” can mean “directory” rather than “imperative”. See R. v. H. (J.), 2002 41069 (ON CA), 2002 CarswellOnt 156, where the Ontario Court of Appeal at para. 23 stated that the word “shall” may also be construed as “merely permissive or directory”, that is as equivalent to “may” where the context so requires to carry out that intention of Parliament (Black’s Law Dictionary). The court concluded that the word “shall” is not determinative of whether an imperative obligation is imposed.
16In City of Toronto v. W.J. Holdings Ltd., 2010 ONSC 6067 at para. 30, the Divisional Court adopted the three-factor test: the court should consider the real intention of the legislature; if it is a public duty then it is more likely to be directory; and the court should compare the possible prejudice to the parties that may arise if the section is read to be mandatory.
17Civil courts have relied on expert medical evidence to assist in this determination. See Barnes v. Kirk, 1968 389 (ON CA), 1968 Carswell Ont 711.
18In Vokes, the court found that it did not need to examine the witness, as the evidence before the court enabled the court to determine that the witness was capable of testifying.
DISCUSSION
19There are no cases that have found where it was held that s.18(2) should be interpreted as merely directive.
20The court is mindful of the three considerations set out in W.J. Holdings Ltd.:
the court should consider the real intention of the legislature: one can infer that the legislature recognizes the court’s role as a gatekeeper and that this important issue of testimonial capacity should be under the court’s oversight;
if it is a public duty then it is more likely to be directory; the court is not exercising a public duty in the sense of a governmental institution or organization yet the court does have an important responsibility to the public; and
the court should compare the possible prejudice to the parties that may arise if the section is read to be mandatory: the parties do not object to the court conducting its own oral questioning of Barbara as mandated by s. 18(2) of the Act and have not articulated any prejudice.
21There is no dispute that Barbara suffers from a major neuro-cognitive disorder (mild dementia). The parties agreed that she does not possess the ability to instruct counsel and have agreed that she is a special person within the meaning of the Rules and that Leonard Shore would be her litigation guardian.
22This disease affects her short-term and long-term memory. She has limited executive function impairments beyond memory issues. Difficulty in recall is expected with dementia. The parties do not agree on whether she has the testimonial capacity.
23The parties do not agree on whether she has the testimonial capacity.
24The parties’ experts also do not agree on whether she has the testimonial capacity.
25Dr. Sadavoy, Barbara’s expert, stated that there was a breakdown of Barbara’s insight and ability to fully and accurately self-reflect on capacity, ability and function. Further, she has considerable difficulty when dealing with complex ideas or providing a narrative.
26Dr. Shulman, the estate’s expert, admitted that Barbara was able to communicate but would not confirm that she could communicate consistently.
27Testimonial capacity is not simply about answering questions. Can Barbara tell her story?
28In my view, this is a clear case for the court to hear oral evidence from the witness herself to determine whether she has the capacity to observe, recollect and communicate as required under the jurisprudence. At the hearing, she will also be asked if she understands the nature of the oath or solemn affirmation.
CONCLUSION
29I direct that this voir dire be adjourned to a date to be set by the trial coordinator’s office preferably, in January 2023. The hearing will take place in person for one hour. A zoom link will be provided to those who cannot attend in person.
30Barbara is to be made available to the court for questioning. The court will be asking questions regarding the purpose of this litigation and what is Barbara’s understanding of the issues for the court’s determination in Phase I of the trial.
31Seven days prior to the hearing, each party may file 10 key points on 2 pages p(maximum) that were covered in her questioning, that they wish the court to consider when questioning Barbara.
32The parties will be directed to provide brief written submissions after the hearing.
33Costs are reserved.
Justice A. Doyle
Released: December 6, 2022
COURT FILE NO.: FC-17-1323
DATE: 2022/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: BARBARA COHEN, Applicant
AND
STEVEN COHEN, in his capacity as Trustee of the Estate of Sidney Cohen and Susan Charendoff, Respondents
BEFORE: Justice A. Doyle
COUNSEL: Anne E. Posno and Melanie Battaglia, Counsel for the Applicant Barbara Cohen
Deborah Palter and Marta Siemiarczuk, Counsel for the Respondent Steven Cohen, in his capacity as Trustee of the Estate of Sidney Cohen
Jonathan Richardson, Counsel for Susan Charendoff
endorsement
Justice A. Doyle
Released: December 6, 2022```