Superior Court of Justice – Ontario
Court File No.: CV-14-60040
Date: 2025/03/27
Parties
RE: The Estate of Michael Meehan, by his litigation administrator Anthony Meehan, Anne Meehan, by her litigation guardian Anthony Meehan, Michael Meehan, Katarina Meehan, Kathleen Meehan, and Anthony Meehan
AND: Donald Good, Donald R. Good A Professional Corporation o/a Donald R. Good & Associates, Ian Stauffer, John Cardill, and Tierney Stauffer LLP
Before
Justice A. Kaufman
Counsel
- Julien G. Bonniere, for the Plaintiffs
- Joseph Y. Obagi, for the Defendant, John Cardill
Heard: March 25, 2025
Ruling on Examination under Section 18(2) of the Ontario Evidence Act
[1] The Defendant seeks to cross-examine Plaintiff, Anne Meehan, at trial. The plaintiffs assert that she is not competent to testify.
[2] Pursuant to a Case Conference Endorsement dated August 23, 2021, this Court directed Ms. Meehan to obtain a competency report by November 30, 2021, which she did. The Defendant declined the opportunity to obtain their own independent capacity assessment of Ms. Meehan.
[3] Dr. Elizabeth Moore conducted a capacity assessment of Ms. Meehan regarding her ability to instruct counsel, and issued a report dated February 25, 2020. In that report, Dr. Moore found that Ms. Meehan experienced paranoid delusions. Dr. Moore concluded that while Ms. Meehan exhibited a partial understanding of the legal process, she did not possess the requisite capacity to provide meaningful instructions to her counsel regarding the substance of the legal proceedings.
[4] On October 21, 2021, Dr. Venera Bruto assessed Ms. Meehan's capacity to participate in the litigation. In a report dated November 30, 2021, Dr. Bruto concluded that Ms. Meehan lacked the capacity to instruct counsel and to provide testimony at discovery. Dr. Bruto opined that Ms. Meehan did not understand or recall the basis of her claim or the parties involved, nor did she possess the capacity to understand her duty to provide truthful testimony under oath or affirmation.
[5] The Defendant submits that section 18 of the Evidence Act, R.S.O. 1990, c. E.23 (the “Act”), deems all parties to an action to be competent witnesses. Section 18(2) of the Act mandates that “when a party's competence is challenged, the presiding judge, justice, or officer shall examine that party”.[^1]
[6] The Defendant submits that section 18(2) of the Act imposes a mandatory obligation on the presiding judge to conduct an examination of a party whose competence is challenged. In support, the Defendant relies on Cohen v. Cohen Estate, 2023 ONSC 1409, where Justice Doyle held that a voir dire on the witness’ competency was required, despite the witness’s major neurocognitive disorder.
[7] The Defendant also cites R. v. D.A.I., 2012 SCC 5, a decision of the Supreme Court of Canada, which, in interpreting the corresponding provision of the Canada Evidence Act, RSC 1985, c C-5, determined that the witness's own testimony constitutes the primary evidence of their competence. Additionally, the Defendant stresses that the legal threshold for witness competence is minimal, necessitating only a basic ability to perceive, remember and communicate. Deficiencies in witnesses’ ability to perceive or recall are matters that bear on the probative weight of their testimony, rather than its admissibility.
[8] The Plaintiffs respond that the Defendant failed to challenge Ms. Meehan's competence at any earlier stage of the proceedings, notwithstanding having been afforded the opportunity to do so. Consequently, the Plaintiffs contend that the Defendant has acquiesced to a finding of Ms. Meehan's incapacity.
[9] This Court concludes that the Defendant's conduct constituted acquiescence to Ms. Meehan's incapacity with respect to examinations for discovery. Nevertheless, the Defendant is entitled to invoke the provisions of sections 8 and 18 of the Evidence Act, R.S.O. 1990, c. E.23, which deem parties competent and compellable to provide evidence at trial.
[10] The Plaintiffs argue that the word "shall" in a statute is not invariably mandatory. They rely on R. v. H. (J.) for the proposition that while "shall" typically connotes an imperative meaning, it may be construed as permissive or directory when the context requires, to give effect to the legislative intent.
[11] In this context, this Court finds no basis to interpret "shall" as permissive. The statute establishes a condition"where the person's competence is challenged" and prescribes a consequence"the presiding officer shall examine the person." Had the legislature intended to confer discretion, it would have used "may".
[12] The Plaintiffs also submit that the examination mandated by the statute does not necessarily require an oral examination in open court and may be fulfilled through a review of the written assessments submitted to the Court. This Court concurs with this proposition in part.
[13] This Court rejects the contention that the examination can be adequately conducted solely on the basis of expert assessments. It is the Court's view that had the legislature intended such a procedure, it would have employed language such as "the judge shall determine the issue." The word "examine" within a legal framework, signifies an inquiry conducted through the elicitation of information by questioning.
[14] This Court concurs, however, that the statutory examination need not be held within the formal setting of a courtroom. The examination may be conducted in a boardroom or other location that provides a more comfortable environment for the person being examined.
[15] Lastly, the Plaintiffs submit that the proposed examination would constitute a redundant, stressful, and wasteful expenditure of judicial resources. While these concerns may ultimately be substantiated, this Court has determined that the legislative mandate to examine a person when their competency to provide testimony is challenged is obligatory.
[16] The Court will accordingly hold a voir dire to determine Ms. Meehan’s competency to testify.
A. Kaufman
Date: March 27, 2025
Footnotes
[^1]: R.S.O. 1990, c. E.23, s. 18(2).