Browne v. Dunn and Similar Fact Evidence: Isles of Change in a Calm Civil Evidence Sea
| Author | F. Paul Morrison and Christopher Wayland |
| Pages | 417-454 |
Browne
v.
Dunn
and
Similar
Fact
Evidence:
Isles
of
Change
in a
Calm Civil
Evidence
Sea
F.
Paul
Morrison
and
Christopher
A.
Wayland*
A.
INTRODUCTION
In the
introduction
to
their seminal
text,
The Law
of
Evidence
in
Civil
Cases
(published
in
1974),
the
learned authors, Sopinka
and
Lederman,
explained
the
need
for a
work devoted exclusively
to
evidence
in
civil
litigation
as
follows:
A
number
of
judgments
and
early
works
on the Law of
Evidence
indi-
cate that
the
rules
of
evidence
do not
differ
as
between
civil
and
crim-
inal cases
and
that
what
is
admissible
or
excluded
in one
case
may be
received
or
rejected
in the
other.
This
appears
to be
valid
today
with
respect,
generally,
to the
principles
relating
to
admissibility
and the
exclusionary rules. There are, however, large
segments
of the Law of
Evidence
which
have relevance
only
to
criminal
trials.1
*
F.
Paul Morrison
is a
senior litigation partner
at
McCarthy Tetrault
LLP in
Toronto.
Christopher Wayland
is an
associate
in the
litigation department
of
McCarthy
Tetrault
LLP,
Toronto.
The
authors
gratefully
acknowledge
the
con-
siderable assistance
of
Nikolas
Rajkovic
and
Junior Sirivar (articled students
at
McCarthy
Tetrault LLP)
and
Ruth Holtham (Fox Foundation Scholar
in
resi-
dence
at
McCarthy Tetrault
LLP),
in the
preparation
of
this paper.
1 J.
Sopinka
and
S.N.
Lederman,
The Law
of
Evidence
in
Civil
Cases
(Toronto: But-
terworths, 1974)
1.
417
418 F.
PAUL MORRISON
AND
CHRISTOPHER
A.
WAYLAND
In
that significant portions
of the law of
evidence were relevant
only,
or
primarily,
to
criminal trials,
the
learned authors noted that there
was a
trend
in
favour
of
dealing with
the
civil
and
criminal areas
of
evi-
dence separately. Accordingly, they
devoted
their
highly
acclaimed
work
to
meet this trend
in the
civil arena:
Thus, when considering
the
scope
of
this text,
the
authors concluded
that there
was
sufficient
discrimination
in
rule-application between
criminal
and
civil
trials,
coupled with extensive subject matter,
to
war-
rant
a
separate work
on
evidence
in
civil
litigation.2
In
1992,
the
time came
to
publish
an
updated text.
In the
preface
to
the
updated edition,
the
authors report that they gave close considera-
tion
to the
format
and
focus
that
it
should have. Their
conclusion
was
that
there
was
insufficient
change
in the law of
evidence
in
civil cases
to
warrant
an
updated text, whereas
in the
criminal
field
the
situation
was
entirely
different.
They expressed
the
situation
as
follows:
The
predecessor
to
this book dealt with
The Law
of
Evidence
in
Civil
Cases.
... In
considering
a
second edition
we
decided
that,
notwith-
standing
the
success
of the
earlier work,
the
reasons which
justified
a
work
limited
to
civil
cases were
no
longer present
to
justify
a
revision
on
this basis.
In
contrast with
the
civil side
of the
practice
where
there
had
been
minimal
change
in the law
of
evidence,
the
developments
in the
criminal
law
field
were quite
dramatic.3
Clearly,
the
leading authors
in the
field
concluded that development
of
the law of
evidence
in
civil cases
was
stagnating.
This
deserves
some
reflection.
Is it a
good
or bad
thing?
Or is it
simply inevitable
as the
civil
and
criminal bars become ever more distinct
from
each other?
It
is
trite
to say
that civil litigation
is
increasingly
different
from
criminal
litigation. There
is a
wider variety
of
civil cases than criminal
cases. They
are
tried
in
different
forums
and
according
to
different
rules.
Very
separate
and
distinct interests
are at
stake. Most markedly,
although
the
litigant's
financial
well-being
or
proprietary rights
may be
at
stake
in a
civil case,
his or her
liberty
is
not.
As a
result, concern about
the
fairness
of the
trial
process
is
heightened
in
criminal cases
and the
rules
of
evidence
are
more strictly
and
assiduously applied
to
ensure,
as
2
Ibid,
at 3.
3 J.
Sopinka,
S.N.
Lederman,
and
A.W. Bryant,
The Law
of
Evidence
in
Canada,
2d
ed.
(Markham,
ON:
Butterworths,
1992)
at vii
[emphasis
added].
Browne
v.
Dunn
and
Similar
Fact
Evidence
419
much
as
possible,
that
the
presumption
of
innocence
not be
compro-
mised
by a lax
application
of
rules
of
evidence developed
and
honed
over
centuries
to
ensure
that convictions
be
founded
on
reliable evi-
dence properly received.
Civil cases
are
different.
More
and
more,
the
conduct
of
civil
cases
is
premised
on
allocation
of
court time only
to
issues that demonstrably
require expenditure
of
scarce public resources
for
their determination.
Increasingly,
emphasis
is
placed upon procedural innovations that
are
created
and
designed
to
maximize
efficient
use of
valuable court time.
As
a
result,
many civil (especially commercial)
cases
feature
"agreed
books
of
documents"
and
"canned"
witness statements, which
are
ten-
dered
to the
trier
of
fact
(i.e.,
a
single judge) without
formal
proof and,
in the
case
of
witness statements,
often
in
unsworn
form.
Further inno-
vations, such
as
"panels"
of
witnesses
and the
taking
of
evidence
by
video
conference,
are
urged
upon
counsel
on an
ever more frequent
basis, although such innovations pose obvious challenges
to the
order-
ly
receipt
of
testimony,
the
integrity
of the
court's
record,
and the
appli-
cation
to
such testimony
of
traditional principles
of
evidence law.
One
must
be
concerned, therefore, about
the
adoption
of
such pro-
cedural devices
and
their
effect
on the
development
of the law of
evi-
dence
in
civil cases. Even
in
their original text, Sopinka
and
Lederman
forecast
that
the
decline
of the
jury trial
in
civil cases
would,
and
per-
haps should, lead
to a
different
standard
for the
admissibility
of
evi-
dence
in
civil cases,
reflective
of the
very
different
objectives
of
civil
trials
and the
interests that they serve.
The
learned authors said:
Some
trial
judges
in
civil
non-jury
cases,
have shunned rulings
on the
admissibility
of
evidence,
remaining content
to
receive
the
evidence
"for
what
it is
worth"
or
"subject
to
objection"
and no
further
word
on
the
objection
is
given.
Moreover,
there
do not
appear
to be any
serious
repercussions
on
appeal even when evidence
is
improperly admitted
in a
civil
non-jury
trial
unless
all of the
other evidence
fails
to
justify
the
court's
finding.4
The
authors
noted
a
direction away
from
strict application
of the
rules
of
evidence
in
civil cases and, indeed,
a
sentiment
for
reform
in
that regard. They stated:
It
has
therefore been urged that
the
rigid
and
precise rules
of
evidence,
which have outlived their usefulness, should
now
yield
to a
general
4
Supra
note
1 at 6.
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