16. Character Evidence in Civil Cases

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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Unless the character of a party to a civil proceeding is directly in issue, or unless the civil case raises allegations of a criminal nature, good character evidence cannot be called.

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Evidence demonstrating the bad character of a party that is presented as circumstantial proof of what happened must satisfy the similar fact evidence rule to be admissible, although that rule tends to operate more generously and subject to different considerations than in a criminal case

16. 1) Generally

Character evidence tends not to play as large a role in civil litigation as it does in the prosecution of criminal offences. Where the character of a litigant is directly in issue, as in a defamation action, character evidence is admissible, although the methods by which it can be adduced are controlled.223Where character is not directly in issue, some of the civil evidence rules are more restrictive than those that apply in criminal cases.

16. 2) The Good Character of Parties: Primary Materiality

Proof that a party is of good character is not generally admissible. This restriction has been explained historically on the questionable basis of irrelevance; whereas a person of good character would not commit a crime, the same cannot be said of civil wrongs.224Better rationales include that in criminal cases we allow such proof because of the liberty interest of accused persons, while in civil cases priority is given to keeping litigation manageable, to avoiding the confusion of issues, and to preventing unfair surprise to the litigants. Exceptionally, where the civil suit alleges what are in substance criminal acts, a party may be permitted to prove their good character in response. In Plester v. Wawanesa Mutual Insurance Co., for example, an arson allegation by an insurance company made against the plaintiff opened the door to good general reputation evidence about the plaintiff.225

16. 3) The Bad Character of Parties: Primary Materiality

The admission of evidence demonstrating the bad character of parties in a civil case is governed by the similar fact evidence rule, where that evidence is presented as circumstantial evidence about what happened. There is a tendency, however, to overuse the rule, just as there is in

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criminal cases. Kotylak v. McLean’s Agra Centre Ltd. was a products liability case.226Evidence was offered by other farmers that, like the plaintiff’s crops, their crops were also damaged by the "seed boot" supplied by the defendant. The trial judge admitted the evidence, but not before applying the similar fact evidence rule. The testimony of the other farmers was not, however, about the character of the defendant. It was about the...

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