Meehan et al v. Good et al, 2025 ONSC 2021
Court File No.: CV-14-60040
Date: 2025/03/31
Court: Superior Court of Justice - Ontario
Between:
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:
Bryan D. Rumble, for the Plaintiffs
Joseph Y. Obagi, for the Defendant, John Cardill
Heard: March 25, 2025
Ruling on Competency to Testify
Introduction
On March 26, 2025, the Court held a voir dire into the issue of the plaintiff Anne Meehan’s competency to testify, in accordance with section 18(2) of the Evidence Act. As part of this process, the Court conducted its own examination of Ms. Meehan and heard testimony from Anthony Meehan, her son and litigation guardian. The Court also reviewed capacity assessment reports prepared by Dr. Elizabeth Moore, dated February 25, 2020, and Dr. Venera Bruto, dated November 30, 2021.
Plaintiffs' Position
The plaintiffs contend that Ms. Meehan lacks the testimonial competence required to testify at trial and to be subjected to cross-examination. They argue that Ms. Meehan is unable to understand, recall meaning, or appreciate the significance of testifying under oath or solemn affirmation. Additionally, the plaintiffs assert that Ms. Meehan is incapable of effectively communicating her evidence to the Court. They argue that, during the voir dire, Ms. Meehan struggled to answer basic questions regarding her children, pets, and caregiver. Given her inability to accurately recollect and provide fundamental information, the plaintiffs argue that she does not meet the standard for testimonial competence established in R. v. Marquard. They emphasize that if the Court were to find otherwise, it would improperly disregard the unopposed medical evidence concerning Ms. Meehan’s testimonial competence. Furthermore, the plaintiffs assert that the defendant would not suffer any prejudice if Ms. Meehan were not allowed to testify or be cross-examined.
Defendant's Position
The defendant responds that Ms. Meehan possesses the testimonial competence necessary to testify at trial and to be available for cross-examination. He argues that even if the Court determines that Ms. Meehan does not understand the nature of an oath or solemn affirmation, she is still capable of communicating her evidence and should be allowed to testify based on a promise to tell the truth. The defendant emphasizes that the standard for testimonial competence is relatively low and distinct from the capacity to instruct counsel. As cross-examination is fundamental to the adversarial system, the defendant argues that his right to cross-examine the party bringing a lawsuit is of paramount importance.
The defendant further contends that Ms. Meehan provided responsive and largely accurate answers to the Court's questions. The defendant acknowledges the principles established in Marquard, arguing that while Ms. Meehan's evidence may be viewed as unreliable, she is not of unsound mind. Instead, any deficiencies in her evidence pertain to her credibility rather than her testimonial competence.
Criteria to Determine Competence to Testify
As stated by the Supreme Court of Canada in R. v. D.A.I., at para. 74, during a voir dire on a witness's competence, the court must undertake two inquiries:
(1) Does the proposed witness understand the nature of an oath or solemn affirmation?
(2) Can the proposed witness effectively communicate their evidence?
As stated in Marquard, the phrase “communicate the evidence” indicates more than mere verbal ability. The reference to "the evidence" indicates the ability to testify about the matters before the court. Testimonial competence includes three essential capacities:
(1) the capacity to observe (including interpretation);
(2) the capacity to recollect; and
(3) the capacity to communicate.
The court must ascertain that the witness possesses these three capacities. The objective is not to ensure the credibility of the evidence but merely to establish that it meets the minimum threshold for admissibility.
The inquiry focuses on the witness's ability to perceive, recollect, and communicate, rather than an assessment of whether the witness accurately perceived, recalled, or can articulate the events in question.
Thus, the standard for demonstrating testimonial competence is low; the witness need not achieve perfection or accuracy in their observations, recollections, or communications. Deficiencies in a witness's ability to perceive or recall specific events may be explored during the evidence-giving process, particularly through cross-examination, and these issues may be addressed as factors affecting the weight of the evidence and the witness's credibility.
Evidence Received During the Voir Dire
Ms. Meehan was asked about her farm. She said that there are 28 cows on the farm and that they were in the middle of calving. She explained that calving is when cows have babies. When asked about other animals on the farm, she indicated that there are two dogs and a cat, and she stated that there are no other farm animals.
When asked whether the cows were raised for dairy or meat, Ms. Meehan responded that they were raised for meat and for profit. She was also queried about her responsibilities on the farm during her younger years, to which she replied that she would steer the cows into the yard for vaccinations, number them, and then take them out.
When asked about her living arrangements, Ms. Meehan stated that she lives with Anthony, Katie, and a baby. She mentioned that she has a granddaughter. In response to questions about her own children, she indicated that, in addition to her son Anthony, she has triplets named Kathleen Anne Mary, Katarina Margaret Mary, and Micheal Alphonse. When asked who does the cooking in the household, she replied that Katie is responsible for cooking, as well as cleaning the house and assisting with her personal care.
When asked about the motor vehicle accident relevant to these proceedings, Ms. Meehan could not recall when it occurred; however, when inquired whether her children were young or adults at the time, she correctly responded that they were young. When asked where the accident happened, she indicated that it occurred just past the gate to the house. She remembered that she was driving at the time and also recalled that the police arrived on the scene and informed her that there were two individuals named Anne Meehan.
When asked to describe her house, Ms. Meehan characterized it as a large residence with four bedrooms: three located upstairs and one downstairs, along with four bathrooms. When inquired about the size of the property, she stated that it encompasses 150 acres.
When asked what it meant for her to swear an oath, Ms. Meehan replied"swear on the truth." Although she could not articulate the significance of swearing an oath to tell the truth, she confirmed that she understood the distinction between telling the truth and telling a lie.
Anthony Meehan testified that several of the answers given by his mother were incorrect. For instance, he stated that there are actually 26 cows on the farm, not 28, and that they have four dogs instead of two. Mr. Meehan also testified that his mother has six children, not four, noting that her first two children are from a previous marriage. However, during cross-examination, it was revealed that Ms. Meehan had previously only reported having four children. When questioned about her first two children during examinations for discovery, she explained that she considers her present family to be her family while viewing the children from her previous marriage as being part of a different family.
Mr. Meehan testified that the farm encompasses between 142 and 144 acres, rather than the 150 acres mentioned by Ms. Meehan. He also stated that it is his wife, Sarah Katherine Meehan, who provides personal care for Ms. Meehan. It is not clear, however, if “Sarah Katherine” and “Katie” are the same person.
Aside from these relatively minor inconsistencies, Mr. Meehan did not dispute Ms. Meehan’s descriptions of the house, the fact that they were in the middle of calving, that they had no other farm animals, or that the cows were raised for meat. Ms. Meehan accurately indicated where the accident occurred and confirmed that she was driving at the time of the accident. Additionally, during her examination for discovery held on August 14, 2002, she testified that when she was giving a report to the police after the accident, they could not locate her in their system because there were two individuals named Anne Meehan.
Analysis
i) Does Ms. Meehan understand the nature of an oath or solemn affirmation?
The plaintiffs contend that Ms. Meehan lacks testimonial competence due to her inability to understand the nature of an oath or solemn affirmation. In contrast, the defendant argues that, even if the Court determines that Ms. Meehan does not comprehend the nature of an oath or solemn affirmation, she is still capable of communicating her evidence and should be allowed to testify based on a promise to tell the truth.
During the voir dire, Ms. Meehan indicated that she did not understand what it meant to swear an oath to tell the truth. This suggests that she does not meet the first inquiry established in D.A.I. regarding the understanding of the nature of an oath or affirmation. However, Ms. Meehan also stated that she understands the difference between telling the truth and telling a lie.
As articulated by the Supreme Court of Canada in D.A.I., if the proposed witness does not understand the nature of an oath or affirmation, the court may still determine that they possess testimonial competence if they are able to communicate their evidence. In such cases, they may testify based on a promise to tell the truth.
ii) Can Ms. Meehan effectively communicate her evidence?
While the plaintiffs correctly point out that Ms. Meehan did not always answer the court’s questions accurately, this is not the test for a witness’ ability to “communicate the evidence”. The test for testimonial competence focuses solely on the witness's capacity to perceive, recollect, and communicate, rather than on whether the witness actually perceived, recollected, and can articulate information about the events in question. Any shortcomings in Ms. Meehan’s ability to perceive and recollect the relevant events may impact the weight of her evidence.
In my view, Ms. Meehan exhibited her ability to "communicate the evidence" by demonstrating her capacities to perceive, recollect, and communicate. The court posed various questions regarding the matters at hand, and Ms. Meehan provided answers that reflected her perceptions and recollections. This effectively demonstrated her capacities to perceive, recollect, and communicate. Furthermore, her answers were responsive and intelligible, adequately addressing the court's questions in a manner that was comprehensible, thereby further evidencing her capacity to communicate.
The Court has taken into account the capacity assessments conducted by Drs. Bruto and Moore. While the Court may consider such evidence in its determination regarding a witness's testimonial competence, it is important to note that this evidence may not be conclusive in establishing the witness's testimonial competence. A high standard of proof is required even when medical evidence of incapacity is presented. It must be demonstrated that the witness should not be permitted to testify on the basis that they are of unsound mind. In this case, neither Dr. Bruto nor Dr. Moore explicitly rendered an opinion to this effect. Instead, they indicated that Ms. Meehan's mental health has deteriorated and that she exhibits longstanding and ongoing psychotic symptoms/psychosis, rendering her unable to provide testimony at discovery. They did not assert that she was of "unsound mind."
Furthermore, the primary source of evidence for a witness’ testimonial competence is the witness herself. Therefore, where evidence of a witness’ testimonial competence differs from or contradicts the expert evidence provided on the matter, the witness’ evidence may be preferred and given more weight in the court’s determination.
In conclusion, the court finds that Ms. Meehan possesses the capacity to testify in court. Despite some inconsistencies in her responses to certain questions, the primary focus of testimonial competence lies in a witness’s ability to perceive, recollect, and communicate relevant information. Ms. Meehan has demonstrated her ability to do so through her coherent and responsive answers, reflecting her perceptions and recollections regarding the matters at hand. Furthermore, while the court has considered the capacity assessments from Drs. Bruto and Moore, their evaluations did not categorize her as of "unsound mind" and thus, their findings do not preclude her from testifying.
Disposition
The Court rules that Ms. Meehan possesses the capacity to testify on a promise to tell the truth.
A. Kaufman
Date: March 31, 2025