March 16, 2015

In P.M. v. Evangelista 2015 ONSC 1419 (CanLII), the court grappled with the requirement of corroboration in sexual assault claims where the defendant had died during the course of the litigation.

P.M. claimed damages against the defendant Livia Evangelista, who was the administrator of the Estate of Luigi Evangelista, for sexual assaults, threatening, and harassment. Luigi Evangelista had been a neighbour of P.M.’s. The allegations arose from three incidents at Luigi’s home which happened in 2002/03, and on January 2 and 3, 2004. Only P.M. and Luigi were present when the incidents occurred.

Although P.M. started her claim against Luigi in October 2004, Luigi had died in 2011, and her case was only heard in 2015. At trial, in addition to P.M.’s testimony, P.M.’s son testified, and additional evidence was provided through P.M.’s medical records and police records (criminal charges against Luigi were dropped). The administrator of the Luigi’s Estate did not appear. The Estate therefore presented no evidence.

In its reasons, Justice A.D. Kurke discussed the application of corroboration requirement of section 13 of the Ontario Evidence Act. That section provides as follows:

“In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.”

Why is corroboration necessary? Justice Kurke cited Pepe v. State Farm Automobile Insurance Co. (2011), 2011 ONCA 341 (CanLII) for the proposition that we require corroboration because we believe that the witness has good reason to lie, and therefore we want some other evidence that he or she is telling the truth.

That said, Justice Kurke found that the application of section 13 in sexual assault cases “can operate unfairly in a legal climate in which in most other situations, even in the criminal law, the evidence of a single witness can be assessed on its own merit, and satisfy even a criminal burden of proof. Arguably, the rule in s. 13 of the Evidence Act appears to distrust the ability of a court to assess the truth of a witness using its usual tools: see Brisco Estate v. Canadian Premiere Life Insurance Co. (2012), 2012 ONCA 854 (CanLII), at paras. 59-62 (per Rosenberg J.A.).”

Justice Kurke held that s. 13 of the Evidence Act “should be wielded as a shield to protect the dead from the dishonest claims of the living, but should not be permitted to serve as a sword to cut short the search for the truth, when the circumstances of the case give no cause for concern about any implicit dishonesty on the part of a living party.”

Nevertheless, the court went through the evidence provided in detail, and determined that with respect to the January 2003 incidents, the requirement of corroboration had been met.

The court awarded P.M. general damages of $45,000 for sexual battery, $5,000 for harassment and pre-judgment interest running from the commencement of her claim.