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CIVIL EVIDENCE – Hearsay rule - Necessary and reliable evidence - Statements by deceased persons

Monday, November 30, 2020 @ 9:15 AM  


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Appeal by the defendant from trial judgment finding that his father’s estate was the legal and beneficial owner of an undivided one-half interest in several properties registered in the appellant’s name. In 1999, the appellant commenced operation of a business which involved the purchase, rental and sale of real property. For several years, his father provided him with funds for the purchase of various properties. Rental income was deposited to, and mortgage payments, taxes and expenses were paid from, a joint bank account. Over time, further properties were acquired with funds from that joint account and/or from two lines of credit secured by the father or the rental properties. The appellant argued the trial judge erred in admitting hearsay evidence with respect to comments made by his father and in finding a joint business venture between his father and himself. He argued that the hearsay evidence adduced by the estate failed to meet threshold reliability and that, even if it did, little or no weight should be given to such evidence. The appellant argued that the father’s financial contribution was a gift, and any other assistance provided by him was simply assistance that one would ordinarily expect a father to provide to his son.

HELD: Appeal dismissed. The trial judge did not err when she determined that the estate’s hearsay evidence met threshold reliability and was ultimately reliable. The judge took a functional approach to threshold reliability which was both efficient and proportional. Even if no weight was given to that evidence, there was extensive documentary evidence which supported the trial judge’s finding that there was a joint business venture between the father and the appellant. The trial judge’s finding that there was a joint business venture was a factual finding that was available on the documentary evidence and inferences from the other admissible evidence, without the need to rely on the hearsay evidence.

Dobrowolski Estate v. Dobrowolski, [2020] M.J. No. 247, Manitoba Court of Appeal, H.C. Beard, W.J. Burnett and L.T. Spivak JJ.A., October 29, 2020. Digest No. TLD-November302020001