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recording video evidence

Death of a Party: Issues in Respect of Evidence

In our previous blogs1, we discussed many of the procedural and cost implications associated with the death of a party.

Oftentimes, however, the death of a litigant causes more than just a procedural hiccup and can be quite prejudicial to the deceased litigant’s case. For instance, in cases where the deceased litigant’s cause of action relies heavily on the deceased litigant’s personal knowledge and recollection of events.

While the case law recognizes that there will be some prejudice resulting from the death of a party, and the corresponding loss of evidence,2 as we have noted in our previous blogs, the Trustee Act3 and the Rules of Civil Procedure4 clearly contemplate the proceeding being continued by the deceased litigant’s executor.

In situations where you may be aware that a litigant is ill, or dying, the Rules of Civil Procedure provide for a scenario where their information can be secured before they pass away and relied upon at trial. The relevant rules are set out below:


34.19 (1) On consent of the parties or by order of the court, an examination may be recorded by videotape or other similar means and the tape or other recording may be filed for the use of the court along with the transcript. R.R.O. 1990, Reg. 194, r. 34.19 (1).

(2) Rule 34.18 applies, with necessary modifications, to a tape or other recording made under subrule (1). R.R.O. 1990, Reg. 194, r. 34.19 (2).




36.01 (1) In this rule, “party” includes a party to a pending or intended proceeding. O. Reg. 8/07, s. 1.

By Consent or by Order

(2) A party who intends to introduce the evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person’s testimony available to be tendered as evidence at the trial. O. Reg. 8/07, s. 1.

Discretion of Court

(3) In exercising its discretion to order an examination under subrule (2), the court shall take into account,

(a) the convenience of the person whom the party seeks to examine;

(b) the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;

(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;

(d) the expense of bringing the person to the trial;

(e) whether the witness ought to give evidence in person at the trial; and

(f) any other relevant consideration. O. Reg. 8/07, s. 1.

However, in many circumstances, a litigant’s death is unanticipated, and no examinations can be anticipated or scheduled. In these circumstances, it makes the ability to submit evidence even more challenging — albeit not impossible.

Hearsay exception

Following the Supreme Court of Canada’s decision of R. v. Khelawon5 the Courts began to apply a principled approach to the admissibility of hearsay evidence on the basis that the Court should consider the necessity and reliability of the evidence. If these two thresholds were met, hearsay evidence can be admitted, although the judge will still have to determine how much weight he/she places on this evidence.

In Manning v. Algarde Estate6 the plaintiff sued the Defendant Estate for the return of valuable gold coins that the Estate had recovered from the West Vancouver Police. The Plaintiff, Manning, had purchased the gold coins at a garage sale, but it was determined by the police that the coins had in fact been stolen because in 1994 the true owner of the coins had first reported them stolen to police. The true owner had since died, but relying upon statements provided by the true owner while he was alive (although the statements were not signed under oath), the police returned the coins to the Estate.

Manning sought the return of the coins to her. As the true owner had died, the key evidence of the Estate to demonstrate that it was the owner of the coins was contained in these statements. Manning’s counsel argued that these statements were inadmissible because they were hearsay. The Court, however, applied the test set out in Khelawon and quickly concluded that the death of the declarant in and of itself satisfied the “necessity threshold”. Moreover, the Court found that if the statements of the deceased were not admitted into evidence, the prejudice flowing to the Estate from that refusal was substantially more severe than the prejudice to the plaintiff from admitting it.

Ultimately, based upon the circumstances in which one of the statements was obtained, the Court admitted three of the four statements. The Court then went on to find that four of the five coins did, in fact, belong to the Estate.

This case therefore, establishes that even where a party has died, if there are video, recordings, statements, letters etc. that have been prepared by the deceased, whether sworn or unsworn, these documents may still be admitted into evidence.

Prejudice Due to the Absence of Any Evidence

However, where little or no evidence of any kind is available to the judge as a result of the death of a party, the prejudice that arises as a result of the absence of such evidence can warrant dismissal of a proceeding entirely in certain circumstances.

For example, in Faris v. Eftimovski,7 the Ontario Court of Appeal determined that a status hearing judge properly dismissed the appellant’s claim for delay. In that case, two of the defendants, who were also material fact witnesses, died after the proceedings had been commenced. The remaining defendants successfully obtained an order dismissing the action for delay, which the plaintiff then appealed.

On appeal, the Ontario Court of Appeal upheld the decision and ascribed the prejudice resulting from the death of the two defendants to the plaintiff, because the plaintiff had failed to discharge his obligation to conduct his action in a proactive manner.

Justice Myers explains that the whole point of the Ontario Court of Appeal’s analysis in Faris is to determine if “the defendant has been prejudiced by the plaintiffs’ delay in prosecuting the case. Prejudice that would have occurred or did occur regardless of the delay is of no consequence and cannot be ascribed to the plaintiffs”.8

However, it is not necessary for the defendant to show that the matter would have gone to trial prior to the deceased litigant’s death, but for the plaintiff’s lack of diligence. The key is determining whether the loss of evidence resulting from the deceased litigant’s death could have been avoided or mitigated but for the delay.

For example, in Goritsas v. Wiebe,9 Meiklem J. rejected the plaintiff’s speculative argument that the matter would possibly not have gone to trial prior to the defendant’s death, because at the very least, if the plaintiff had been acting diligently (which he did not), the defendant should have been examined for discovery and his transcript available.

The case law recognizes that the death of a party will, almost inevitably, be prejudicial to a fair trial on the merits. While there are now methods of having at least some evidence from the deceased admitted at trial, where no such evidence is available and this prejudice could have been avoided or mitigated but for the plaintiff’s delay, courts have found that it would be unfair to deprive the defendant (or their estate) of a key witness and effectively reward the plaintiff for failing to discharge its responsibilities.


  2.   Faris v. Eftimovski, 2013 ONCA 360 at para. 45; Kahn v. Subhani, 2017 ONSC 246 at para. 92
  3.   Section 38
  4.   Rule 9 and 11
  5.   2006 SCC 57
  6.   2008 BCSC 1129
  7.   Faris v. Eftimovski, 2013 ONCA 360
  8.   Wojdat v. Ventawood, 2014 ONSC 1516 at para. 25
  9.   1993 CarswellBC 1878

The authors of this blog are Bradley Phillips and David Wagner. Brad and David are both partners at Wagner Sidlofsky LLP.

David is a member of the firm’s Estate and Commercial Litigation Groups. He received his TEP designation from STEP and he deals with will challenges, dependants support, guardianship and applications to compel an accounting.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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