COURT OF APPEAL FOR ONTARIO

CITATION:
Brisco
    Estate v. Canadian Premier Life Insurance Company,

2012 ONCA 854

DATE: 20121205

DOCKET: C52435

Rosenberg, Goudge and Feldman JJ.A.

BETWEEN

The Estate of Robert Brisco, by its Executor Paul
    Brisco, Michael Jason Brisco, Robert Jeffrey Brisco, Kelly Brianne Brisco,
    Brandon Andrew Brisco

Plaintiffs (Respondents)

and

Canadian Premier Life
    Insurance Company
, Heritage General Insurance Company, Tziporah Goldberg

Defendants (
Appellant
)

Lloyd M. Hoffer and David Seevaratnam, for the appellant
    Canadian Premier Life Insurance Company

Paul J. Pape and Nicolas M. Rouleau, for the respondents

Heard: April 10, 2012

On appeal from the judgment of Justice Wolfram Tausendfreund
    of the Superior Court of Justice, sitting with a jury, dated June 24, 2010.

Rosenberg
    J.A.:

[1]

The principal issue in this appeal concerns the admissibility and
    possible use of hearsay evidence in an action by beneficiaries of an insurance
    policy against the insurance company. The appellant, Canadian Premier Life
    Insurance Company, had insured the deceased under a Group Accident Insurance
    Certificate issued to Sears Canada Inc. If the insured died in a common carrier
    accident, the policy paid out $1,000,000. If death occurred in other
    circumstances, the policy paid out lesser amounts. The insured, Robert Brisco,
    purchased this policy through Sears in January 1998. Mr. Brisco had a number of
    other policies that will be discussed more fully below. In short, however, it
    was Canadian Premiers contention that Mr. Brisco cancelled the policy in a
    telephone conversation on August 25, 1998. The respondents contended that
    Canadian Premier cancelled the policy by mistake and that Mr. Brisco intended
    to cancel a different policy. The other policy was also purchased through
    Sears, was effective as of December 1993, and was primarily a policy providing
    for supplementary hospital benefits.

[2]

The respondents case of mistake depended upon statements Mr. Brisco
    made over several years after 1998 evidencing his belief that he had $2,000,000
    in insurance. There was no question that Mr. Brisco held a policy from Heritage
    General Insurance Company, obtained through Zellers, that paid $1,000,000 in
    case of an accidental death while on a common carrier.

[3]

The trial judge admitted Mr. Briscos statements under the state of mind
    exception to the hearsay rule. The appellant submits that the evidence was
    inadmissible. In the alternative, it argues that there was no corroboration as
    required by s. 13 of the
Evidence Act
, R.S.O. 1990, c. E.23. It also
    raises other issues concerning the charge to the jury and the admissibility of
    expert evidence. For the following reasons, I would dismiss the appeal.

A.

THE FACTS

(1)

The Various Insurance Policies

[4]

Prior to August 25, 1998, Mr. Brisco held six insurance policies. The
    two group insurance policies issued to Sears by Canadian Premier were described
    in the evidence as follows [for convenience I have used only the last 3 digits
    of the certificates]:

Abbey Life [Canadian Premier took over Abbey Life] hospitalization
    policy certificate 972 purchased December 14, 1993; monthly premium of $12.95;
    pays various hospital benefits for the insured and his family and $10,000 if
    any family member died in an accident.

Canadian Premier Life accidental death policy certificate 282
    purchased January 7, 1998; monthly premium of $9.95; pays only if Mr. Brisco
    died; maximum of $1,000,000 if accident in a common carrier; lesser amounts for
    other accidents.

[5]

The premiums for these two policies were paid by automatic charges to
    Mr. Briscos Sears credit card. The charges were reflected in the statement of
    account Mr. Brisco received every month from Sears, until October 1998 when the
    charge for the accidental death policy was no longer shown on the statement.

[6]

Mr. Brisco held four other policies, referred to as Heritage policies,
    that were group insurance policies issued to Zellers as follows:

Heritage accidental death policy certificate 396 purchased
    January 28, 1994; monthly premium of $8.95; pays maximum of $250,000 if
    accident in public transportation, lesser amounts for other accidents.

Heritage permanent disability policy certificate 193 purchased
    May 2, 1995; monthly premium of $8.95; pays $250,000 if Mr. Brisco became
    paralyzed in an accident.

Heritage hospitalization policy certificate 943 purchased July
    1, 1996; monthly premium of $8.95; pays various amounts for hospitalization,
    intensive care etc. if Mr. Brisco was injured in accident.

Heritage accidental death policy certificate 033 purchased
    March 27, 1998; monthly premium of $7.95; pays maximum of $1,000,000 in case of
    accidental death in common carrier and lesser amounts for death in other kinds
    of accidents.

[7]

The monthly premiums for the Heritage policies were paid automatically
    through Mr. Briscos Zellers credit card.

(2)

Mr. Briscos Personal Circumstances

[8]

Mr. Brisco died in January 2004 in an airplane crash, thus triggering
    the $1,000,000 insurance benefits for common carrier fatal accidents. He was 46
    years of age. He had lived in Chatham where he ran a business as a real estate
    broker and property manager.  He was described as frugal and someone who liked
    a good deal. He was good at details and in dealing with people.

(3)

The August 25, 1998 Telephone Conversations

(a)

The Canadian Premier Conversations

[9]

Although Mr. Briscos policies were with different companies, Canadian
    Premier had an agreement with Heritage to administer the operation of Heritages
    insurance policies. Computer-generated records show that Mr. Brisco made at
    least two telephone calls to Canadian Premier on August 25, 1998.  The first
    call or set of calls was to Tziporah Goldberg, inquiring about the two Canadian
    Premier policies. Ms. Goldberg had no independent recollection of the
    conversations and relied upon two computer records labelled service
    documentation, one for each of the Canadian Premier policies. One document
    refers to the accidental death policy and is time stamped 11:12:11:

Purpose of call:               Cancellation

Action taken:                   Offer as supplement

Result:                            Cancelled

Cancel effective date:      09/98

[10]

The
    other document refers to the Abbey Life Certificate and is time stamped
    11:13:30:

Purpose of call:               Cancellation

Action taken:                   Explain Product Benefit

Result:                            Retained

[11]

Ms.
    Goldberg testified that, given that the time stamps are so close in time, it is
    likely that there was only the one telephone conversation. The insurance was paid
    one month in advance; that is why the cancellation took effect in September.
    Mr. Briscos August 1, 1998 Sears credit card statement shows two payments:

A.D. INS.     $9.95 plus PST

AHIP INS.    $12.95 plus PST

[12]

Both
    payments show the same 1-800 telephone number. There is also a note on the
    statement in Mr. Briscos handwriting enclosed in a circle: Ziporah EXT. 2022
    CANCELLED Sept. 7/98 STILL ON Aug./98. Mr. Briscos October 1, 1998 statement
    shows only the AHIP INS. payment.

[13]

Ms.
    Goldberg testified about her usual practice when a client called to cancel
    insurance. She would review the coverage and confirm the cancellation if that
    was the clients decision. She would also tell the client to expect a
    confirming letter. There was no evidence as to whether such a letter was sent.
    No letter was found amongst Mr. Briscos documents and there was no copy in
    Canadian Premiers files.

(b)

The Heritage Conversations

[14]

Mr.
    Brisco also had conversations that same morning with a Canadian Premier
    customer service representative about his four Heritage policies. The time stamps
    on the service documentation are 11:39, 11:45, 11:54 and 11:55. Mr. Brisco
    spoke to Patrick Portal about cancelling three of the four policies, including
    the Heritage $1,000,000 accidental death policy and the $250,000 accidental
    death policy. There was no discussion about cancelling the hospitalization
    policy. This policy was similar to the coverage provided by the 1993 Abbey Life
    hospitalization policy, which was not cancelled during the conversation with
    Ms. Goldberg. In the end, Mr. Brisco only cancelled the $250,000 accidental
    death policy, which he had purchased on January 28, 1994.

(4)

The Expert Evidence

[15]

Over
    objection from the appellant, the respondents were permitted to adduce expert
    evidence from Lee Shirk concerning industry standards for insurance
    cancellation. It was his opinion that Canadian Premier fell short of acceptable
    Canadian standards of insurance record keeping by neither keeping a recording
    of a telephone cancellation nor requiring a written request of cancellation.
    The appellants objection to this evidence centred on its submission that the
    report prepared by Mr. Shirk for the respondents disclosed obvious advocacy and
    a lack of neutrality.

[16]

The
    appellant called its own expert, Franklin Reynolds, in response. He disagreed
    with Mr. Shirks opinion that a recording of a telephone cancellation was
    required. The appellant objected to some of the cross-examination of Mr. Reynolds
    on the contents of a website that was critical of Premiers computer system.

(5)

The Hearsay Statements

[17]

Mr.
    Briscos children and brother testified to statements he made to them after
    August 1998 in which Mr. Brisco said he had two million-dollar life insurance
    policies. Those statements and the circumstances under which they were made may
    be summarized as follows.

[18]

Kelly
    Brisco, the appellants daughter, testified to two specific conversations. The
    first was in 2000. She was at a family birthday party at a restaurant in
    Chatham called Glitters. They were just getting ready to leave when Mr. Brisco
    mentioned that he had $2,000,000 in accidental death coverage. He said that he
    had $1,000,000 through Sears and $1,000,000 through HBC. She asked him what HBC
    was and he said it was Zellers. He said that if he was in a plane crash it was $1,000,000,
    and if it was a car crash it was a smaller amount. She asked him why he had it,
    and he said it was cheap insurance. She thought it odd because he did not fly
    very much, just to her soccer tournaments in various parts of Canada and the
    United States. Ms. Brisco had a clear recollection of the occasion, including
    what she was wearing. The family later found a photograph that their father had
    taken on the occasion that shows the three children.

[19]

The
    second conversation was in February 2003, a year before Mr. Brisco died, again
    at a family birthday celebration at Glitters. Ms. Brisco remembered who was at
    the dinner, including Mr. Briscos girlfriend and her two children. He again
    brought up the insurance and said it was a million with Sears and a million
    with Zellers and that it was cheap. She thought the topic of conversation was a
    little creepy. However, she remembered she asked how cheap and he said
    something like: eight ninety-five.

[20]

Ms.
    Brisco testified that there may have been other conversations but she could not
    remember the specifics, just that he wanted to make sure they were taken care
    of if something happened. In cross-examination, Ms. Brisco was asked whether
    she was mistaken about the date of the first conversation because Mr. Briscos
    credit card statements show HBC did not replace Zellers until November 2001.
    Ms. Brisco maintained that the conversation was at the birthday event in 2000.

[21]

Jason
    Brisco, Mr. Briscos son, testified that there were several conversations all
    along the same lines: that Mr. Brisco had million-dollar policies with Sears
    and Zellers and that he purchased the policies because they were cheap. While
    he could describe the time of year of the conversations because of the weather,
    he could not give the year for any of the conversations. He spoke specifically
    of three conversations, including the 2000 conversation at the Glitters
    birthday celebration testified to by his sister. This was the last of the
    three. The second conversation, which was while he was getting a ride from his
    father to downtown Chatham, was about one year earlier.

[22]

Jeffrey
    Brisco, Jasons twin brother, recalled one occasion when his father spoke about
    insurance. Jeffrey was home for Christmas 2003. He was in the military, and he
    thought he would soon be sent to Afghanistan. He and his father went to see a
    movie, and while they were waiting for the film to start, Jeffrey mentioned to
    his father that he had $250,000 in insurance for his family if something should
    happen to him. Mr. Brisco said he had over $2,000,000 worth of life insurance
    and it was not expensive.  He had one million-dollar policy with Zellers, one
    with Sears, and several smaller policies. He learned of his fathers death just
    a month later in January 2004.

[23]

Paul
    Brisco, Mr. Briscos brother and the executor of his estate, testified about a
    conversation in the fall of 2003 when he was duck hunting with his brother.
    They were in a duck blind having a general discussion including family things,
    and Mr. Brisco mentioned that he had a couple of million dollars of credit
    card life insurance policies. He could not remember any other details of the
    discussion.

(6)

The Trial Judges Ruling on the Admissibility
    of the Hearsay Evidence

[24]

The
    trial judge admitted the evidence of statements made by Mr. Brisco under the
    state of mind exception to the hearsay rule. He held that the evidence was
    admissible solely to establish Mr. Briscos state of mind regarding his view
    of the existence of that policy. He reasoned as follows:

The proposed statements of these witnesses that I reviewed
    would indicate that the late Mr. Brisco had made arrangements for insurance
    coverage on his life in the event of an accident, and that it was obviously
    important enough for him to have made those arrangements to cause him to raise
    that matter with his family on several occasions over a period of years.

[25]

The
    trial judge did not accept the submission that the statements were unreliable
    because they were made months after Mr. Briscos discussion with Ms. Goldberg
    in August 1998. In his view, it would have been equally important to [Mr.
    Brisco] in the years immediately leading up to his death, to have remained
    equally important to him as the decision was when he first decided to make it.

(7)

The Trial Judges Ruling on the
    Application of s. 13 of the
Evidence Act

[26]

At
    the conclusion of the respondents case, the appellant moved for a non-suit on
    the basis that there was no evidence that could satisfy the corroboration
    requirement of s. 13 of the
Evidence Act
. Section 13 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.

[27]

The
    trial judge held that s. 13 did not apply because this action was not by or
    against an estate, but an action by the beneficiaries under an insurance
    policy. However, the trial judge found that, if he was wrong, there was
    corroboration from the evidence of Paul Brisco and from the absence of a letter
    from the insurance company confirming the cancellation. The trial judge also
    said the following:

And I also find that the circumstances surrounding virtually
    all, if not all of the occasions on which Bob Brisco is said to have mentioned
    to his children and to his brother about these two policies are rich in detail,
    so rich that I am satisfied and comfortable that they are true.

(8)

The Charge to the Jury

[28]

In
    his charge to the jury, the trial judge reviewed the statements by Mr. Brisco
    to his brother and children and then directed the jury as to the use to be made
    of this evidence as follows:

Now, based on these particulars, and the detail of that
    description, you may likely conclude that on these occasions, that these
    occasions happened as described, including Bobs references to his belief of
    what his insurance coverage was. That evidence goes to Bobs state of mind, and
    that is his belief that he had two one-million-dollar accidental policies.

Now, if you find that its probable that Bob had such a belief
    as to his insurance coverage, you will ask yourself how probable it is that he
    had given instructions on August 25th, 1998 to cancel each one of these two
    policies, or at least one of these policies, or whether it is probable that
    such cancellation was a mistake. Your conclusion on finding in that regard is
    entirely your conclusion.

B.

Position of the Parties

[29]

The
    appellant submits that the trial judge erred by admitting Mr. Briscos hearsay
    statements concerning his insurance coverage under the state of mind exception
    to the hearsay rule. It further submits that such evidence was also
    inadmissible under the principled approach to hearsay because it was not
    reliable. The appellant also submits that the trial judge erred in holding that
    s. 13 of the
Evidence Act
did not apply and in holding that there was
    corroboration because Canadian Premier did not send a letter confirming the
    cancellation of the accidental death policy.

[30]

Further,
    the appellant submits that the trial judge made a number of errors in his
    charge to the jury. It submits that even if the hearsay evidence was
    admissible, the trial judge did not adequately direct the jury as to how to
    approach that evidence.  It argues that the jury charge did not adequately or
    accurately review the defence evidence. It also argues that the trial judge
    misdirected the jury by reversing the burden of proof by directing the jury
    that any doubt as to whether the instructions were given to cancel the policy
    must be construed against cancellation.

[31]

The
    appellant also submits that the trial judge erred in admitting the expert
    evidence of Mr. Shirk and in permitting its own expert, Mr. Reynolds, to be
    cross-examined on the contents of a website.

[32]

The
    respondents support the trial judges rulings. In particular, they support the
    trial judges ruling that the hearsay statements were admissible under the
    state of mind exception to the hearsay rule. Alternatively, they submit that
    the statements were admissible by application of the principled approach to
    hearsay.

[33]

Following
    oral argument, the panel requested further submissions on the application of
    the principled approach and the impact of the courts recent decision in
R.
    v. Baldree
, 2012 ONCA 138, 109 O.R. (3d) 721, leave to appeal to S.C.C.
    granted, [2012] S.C.C.A. No. 136, appeal heard and reserved November 7, 2012.
    In their written submissions, both parties submit that the
Baldree
decision can be applied to support their own position.

C.

analysis

(1)

The Hearsay Evidence

(a)

State of Mind

[34]

I
    will first deal with the admissibility of the disputed evidence on the basis that
    it showed Mr. Briscos state of mind, either as an exception to the general
    rule that hearsay is inadmissible or as evidence from which an inference of
    state of mind can be drawn. The appellant submits that the statements did not
    fall within the state of mind exception and, alternatively, even if they did,
    they were so unreliable that they should not have been admitted.

[35]

The
    issue to which the hearsay evidence is relevant is whether, on August 25, 1998,
    Mr. Brisco cancelled the accidental death policy that he had taken out some seven
    months earlier. The respondents contend that he did not cancel that policy and
    that Canadian Premier mistakenly cancelled the policy. The relevance of the
    hearsay lies in the proposition that the statements made by Mr. Brisco over the
    years after 1998 show his continuing belief that he had two million-dollar
    policies. It can therefore be inferred that he did not cancel one of those two
    policies and that Canadian Premier mistakenly cancelled the policy.

(i)

State of Mind as a Hearsay Exception

[36]

The
    two leading modern cases on the state of mind exception to the hearsay rule are
R. v. Smith,
[1992] 2 S.C.R. 915 and
R. v. Starr
, 2000 SCC
    40, [2000] 2 S.C.R. 144. In
Starr
, at paras. 168-69, Iacobucci J.
    provided the following definition of the state of mind exception:

The Crown argued that the "state of mind" or
    "present intentions" exception to the hearsay rule applied to render
    Cook's statement to Giesbrecht admissible. This exception was most recently
    discussed in detail by this Court in
Smith, supra,
where it was
    recognized that an "exception to the hearsay rule arises when the
    declarant's statement is adduced in order to demonstrate the intentions, or
    state of mind, of the declarant at the time when the statement was made" (p.
    925). Wigmore has argued that the present intentions exception also includes a
    requirement that a statement "be of a
present existing state of mind
,
    and must appear to have been made in a natural manner and not under
    circumstances of suspicion":
Wigmore on Evidence
, vol. 6
    (Chadbourn rev. 1976), at para. 1725, p. 129 (emphasis in original).
    L'Heureux-Dubé J., at para. 63 of her reasons, denies that Wigmore's suggestion
    has ever been adopted in our jurisprudence. As I will discuss below, regardless
    of whether the present intentions requirement ever had such a requirement, the
    principled approach demands that it must have it now. I will therefore examine
    the admissibility of Cook's statement under the present intentions exception in
    light of that understanding.

In
Smith
, Lamer C.J. explained that the exception as
    it has developed in Canada permits the admission into evidence of statements of
    intent or of other mental states for the truth of their contents and also, in
    the case of statements of intention in particular, to support an inference that
    the declarant followed through on the intended course of action, provided it is
    reasonable on the evidence for the trier of fact to infer that the declarant
    did so.
At the same time, there are certain inferences that may not
    permissibly be drawn from hearsay evidence of the out-of-court declarant's
    intentions.
On this point, Lamer C.J. cited with approval (at p. 927) from
    the judgment of Doherty J. in
P. (R.), supra
[(1990), 58 C.C.C. (3d)
    334 (Ont. H.C.)], at pp. 343-44, where the case law was summarized as follows:

The evidence is not, however, admissible to show the state
    of mind of persons other than the deceased (unless they were aware of the
    statements), or to show that persons other than the deceased acted in accordance
    with the deceased's stated intentions, save perhaps cases where the act was a
    joint one involving the deceased and another person.
The evidence is also
    not admissible to establish that past acts or events referred to in the
    utterances occurred.

[Emphasis added.]

[37]

Mr.
    Briscos statements were not tendered to prove a present intention, but rather
    a present belief. That belief can be broken down into two assertions: first,
    that he believed he had purchased two million-dollar accidental death policies,
    one from Sears and one from Zellers; and second, that he believed he still
    owned these policies at the time of the statements to his brother and children.
    The first assertion is not in issue in the case because the purchase of the two
    policies was not contested. The second assertion is very much in issue. I will
    deal first with the relevance of that assertion and then its admissibility
    under the present state of mind exception.

[38]

All
    of the statements relied upon are similar. For the purposes of this discussion
    I will use the most compelling, the 2003 Christmas statement to Jeffrey. This
    statement was made on an occasion of some solemnity: Jeffrey was preparing to
    be sent to Afghanistan and had brought up the issue of insurance. He was
    concerned about his own mortality and that his family would be properly cared
    for in the event of his death. It is difficult to understand why Mr. Brisco
    would have any motive to lie about his own insurance in those circumstances. On
    this occasion, Mr. Brisco said he had over $2,000,000 worth of life insurance
    and it was not expensive.  He had one million-dollar policy with Zellers, one
    with Sears, and several smaller policies.

[39]

The
    respondents did not contend that these statements were admissible for the truth
    of their contents, that is, that Mr. Brisco in fact owned two $1,000,000
    policies. They concede properly that the statements would be hearsay and there
    is no existing exception that would apply to admit the statements. Rather, they
    assert that the statements are admissible only to show that he had a certain
    state of mind in 2003, namely his present (2003) belief that he owned the two
    policies. However, his state of mind in 2003 was not directly in issue in the
    case; what was in issue were his acts many years earlier when speaking to Ms.
    Goldberg. His state of mind in 2003 was relevant only as it might shed light on
    what actions Mr. Brisco took in 1998, that is, past acts, the very inference
    prohibited by the Supreme Court of Canada in both
Smith
and
Starr
,
    adopting Justice Dohertys statement of the exception in
R. v.

P.
    (R.)
(1990), 58 C.C.C. (3d) 334 (Ont. H.C.).  To repeat what Justice
    Doherty said, at p. 344:

The evidence is also not admissible to establish that past acts
    or events referred to in the utterances occurred.

[40]

The
    past acts to be proved by Mr. Briscos statements are that he purchased the
    policies and that he had not cancelled them. While the courts in
Smith
,
Starr
and
P. (R.)
were considering the state of mind
    exception as applied to present intentions, I can see no principled basis for
    applying a different test where the state of mind is present belief. Indeed, to
    allow the state of mind exception to include present state of belief to prove
    past acts would all but eliminate the hearsay rule.

[41]

To
    take a simple example, assume that in a prosecution for sexual assault, the
    prosecution seeks to tender a statement by the now deceased declarant saying
    that he was sexually assaulted. The prosecution contends that the statement is
    admitted only to prove the declarants belief that he was sexually assaulted.
    But, the relevance of the statement lies solely in its ability to prove that
    the declarant was sexually assaulted in the past.

(ii)

State of Mind as Non-hearsay Circumstantial
    Evidence

[42]

It
    may be argued that there is no hearsay problem at all. This is because evidence
    is only hearsay when it is adduced to prove the truth of the contents and there
    is no contemporaneous cross-examination of the declarant:
R. v. Khelawon
,
    2006 SCC 57, [2006] 2 S.C.R. 787, at para. 56. The respondents argue they do
    not tender the statement to prove the truth of the contents, i.e. that the
    policies were purchased and were still in force, but only to prove Mr. Briscos
    belief that they were in force. Viewed this way, the respondents do not need a
    hearsay exception at all. However, in my view, the limitations on the use of
    utterances of present state of mind apply whether the statements are explicit
    statements of state of mind or merely statements from which an inference as to
    the declarants state of mind can be inferred. In
P. (R.)
, at pp.
    341-43, Doherty J. referred to both methods of proving state of mind. The
    passage from that decision at p. 344, approved in
Starr
and cited
    above, does not distinguish between the two methods of proof of state of mind.

[43]

The
    respondents argument for the use of Mr. Briscos statements is not unlike the
    argument dealt with by this court in
Baldree
. As I have indicated, this
    court asked for further submissions on the application of
Baldree
to
    this case. In
Baldree
, the Crown sought to rely upon a telephone call
    from an anonymous caller to the appellants cell phone asking to buy some
    marijuana. There was no direct assertion in the statement that the appellant
    was a drug dealer, but this was the inference sought to be drawn. Feldman J.A.
    dealt with the issue in the following way, at paras. 140-41:

I agree with Chief Justice McMurtry in
R. v. Wilson
that admitting the contents of one call into evidence is admitting that
    evidence for a hearsay purpose. It is the implied assertion of the caller,
    untested by cross-examination, that the accused is a drug dealer. That was also
    the conclusion of the majority of the House of Lords in
Kearley
, with
    which I also agree.

When there are a significant number of calls, the analysis of
    the minority in that case, that the fact of the calls requires an explanation
    which comes from the content of the calls, which content is admitted to show
    the operation of a market in drugs, becomes cogent. However, even on that
    analysis, in my view, it is still the truth of the content of the calls that is
    being relied on.
With respect to those of the contrary view, it is not
    circumstantial evidence from which an inference can be drawn that the accused
    is a drug dealer. The evidence gets its probative value from the belief of the
    callers, which may or may not be accurate.
[Emphasis added.]

[44]

Similarly,
    the evidence here gets its probative value from the belief of Mr. Brisco, which
    may or may not be accurate. It may be that the evidence could be admitted on a
    principled application of the hearsay rule on the basis that the statements
    were necessary, because Mr. Brisco was deceased, and reliable, because it was
    unlikely Mr. Brisco was mistaken or lying about his own insurance, a matter to
    which I turn below.

[45]

In
    his concurring reasons, Blair J.A., at paras. 160-62, adopted a different
    approach to analyzing the evidence in
Baldree
, but he agreed it should
    be excluded:

However, if the hearsay nature of the prospective testimony is
    particularly difficult to pinpoint, courts should consider falling back on the
    newer, more principled tools of reliability and prejudice/probative value
    assessments to resolve the question of admissibility. Such a situation may
    arise where  as here, for example  the purpose for which the evidence is
    tendered is ambivalent or open to more than one usage, but the evidence, at
    least on its face, has many of the hearsay-danger characteristics that make
    courts cautious about receiving it. Necessity is less of a factor in these
    circumstances. If evidence lacks sufficient reliability it will have little
    probative value in any event, but even if the proffered evidence meets the
    reliability threshold for admissibility a judge may still conclude, in his or
    her discretion, that the evidence ought to be excluded because its prejudicial
    potential outweighs any probative value it may have:
Khelawon
, at
    para. 3;
R. v. Seaboyer,
[1991] 2 S.C.R. 577.

Like Feldman J.A., I conclude that the trial judge erred in
    admitting the evidence of the one drug-purchase call on the basis that it
    showed the appellant was in the drug-dealing business. I agree with her
    analysis at paras. 144‑49 of her reasons, in this regard.

If the phone call evidence was hearsay, it ought to have been
    subjected to a necessity/reliability analysis, which, in my view, it would
    fail. If, as the trial judge concluded on the basis of the authorities he
    followed, it was not hearsay, it ought nonetheless to have been subjected to a
    prejudice/probative value balancing exercise, which the trial judge did not do.
    Like my colleague, I do not think the fact that defence counsel did not seek to
    have the phone call excluded on
Khelawon
principles is fatal in the
    circumstances. In circumstances such as this, trial judges should be alive to
    their discretion to exclude evidence on the prejudice vs. probative value
    ground.

[46]

The
    fundamental difficulty with the respondents claim is that any declaration can
    be converted to a statement of belief, tendered not for the truth of the
    assertion. A majority of this court has rejected that approach in
Baldree
.
    I see no reason to revisit the issue on the facts of this case.

(iii)

Some Similar Examples

[47]

This
    court rejected similar evidence in
Burns Estate v. Mellon
(2000), 48
    O.R. (3d) 641. In that case, the estate sought to rely upon evidence from the
    deceaseds accountant to show that a large sum of money transferred by the
    deceased to the respondent was not a gift. The accountant testified that he had
    conversations with the deceased in which the deceased indicated that he had demanded
    the money back and regarded the money as his. The trial judge had refused to
    admit the accountants evidence of statements made to him by the deceased some
    20 months after the transaction. Speaking for the court, at para. 25, Laskin
    J.A. held that the evidence was not admissible:

Even if King's [the accountants] evidence should have been
    admitted to show the deceased's state of mind, the trial judge was quite
    correct not to give any effect to it because of its obvious unreliability. Two
    considerations undermine the reliability of King's evidence. First, his
    conversation with Burns was not contemporaneous with the transfer, but took
    place months afterwards. Thus the conversation is of little help in determining
    Burns' intention at the time of the transfer.
A party cannot ordinarily
    rely on a declaration subsequent to a transfer to support his or her position.
    A subsequent declaration is only admissible as evidence against the party who
    made it.
Therefore because Burns' statements to King were not contemporaneous
    with the transfer the appellant cannot rely on them to support her position
    that the transfer was not a gift. [Emphasis added; footnote omitted.]

[48]

The
    respondents also rely upon the reasons of Power J. in
Jones-Ottaway v. Bank
    of Montreal
, 2000 ABQB 680, 275 A.R. 305, as an example of a case in which
    such evidence was admitted. The
Jones-Ottaway
case has some
    superficial similarity to the facts of this case. The plaintiff and her husband
    transferred various accounts and financial dealings from a trust company to the
    Bank of Montreal. In particular, they replaced the trust company mortgage on
    their property to a mortgage held by the Bank of Montreal. The plaintiffs
    husband died a short time later. The issue in the case was whether the mortgage
    was covered by a policy of life insurance. The trial judge permitted the
    plaintiff to adduce evidence of various statements made by her husband to the
    plaintiff and others, confirming that he had intended to cover his mortgage
    loan with life insurance. In my view, the
Jones-Ottaway
case does not
    assist the respondents for two reasons.

[49]

First,
    in his ruling admitting the husbands statements, the trial judge referred to an
    excerpt from
Smith
citing Doherty J.s reasons in
P. (R.)
,
    which are set out above, at para. 36. However, he omitted the crucial final
    sentence of that statement: The evidence is also not admissible to establish
    that past acts or events referred to in the utterances occurred.

[50]

Second,
    the nature of the utterances relied upon by the plaintiff were not set out with
    clarity. In particular, it appears that some of the utterances were statements
    of intention, that is, that the deceased intended to obtain life insurance for
    the new mortgage. If so, the statements would qualify as statements of present intention.
    Those statements are not, as in this case, statements of a present belief
    referring to prior acts.

[51]

Accordingly,
    in my view, the trial judge in the present case erred in relying on the state
    of mind exception.

(b)

Application of the Principled Approach

[52]

In
    the alternative, the respondents rely upon the principled approach to hearsay
    to support the trial judges ruling. The principled approach permits the
    admission of hearsay if sufficient indicia of necessity and reliability are
    established:
Khelawon
, at para. 42. The only issue in applying the
    principled approach to the hearsay in this case is reliability. The necessity
    prerequisite is satisfied because Mr. Brisco is deceased and unable to provide
    his version of the conversation with Ms. Goldberg.

[53]

In
    a jury trial, the trial judges only concern with reliability is threshold
    reliability.  The ultimate reliability of the statements is a question for the
    jury.
Threshold reliability of statements may be
    demonstrated because of the circumstances in which they came about or because
    in the circumstances, their truth and accuracy can nonetheless be sufficiently
    tested:
Khelawon
, at paras. 49,
    62-63. In this case, threshold reliability depends upon demonstrating that the
    circumstances in which the statements came about are such that there is no real
    concern about whether the statement is true or not. As the Supreme Court said
    in
Khelawon
,
at para. 62: Common
    sense dictates that if we can put sufficient trust in the truth and accuracy of
    the statement, it should be considered by the fact finder regardless of its
    hearsay form. In that same paragraph, the court adopted the following passage
    from Professor Wigmores treatise on evidence:

There are many situations in which it can be easily seen that
    such a required test [i.e., cross-examination] would add little as a security,
    because its purposes had been already substantially accomplished. If a
    statement has been made under such circumstances that even a sceptical caution
    would look upon it as trustworthy (in the ordinary instance), in a high degree
    of probability, it would be pedantic to insist on a test whose chief object is
    already secured.

[54]

In
    making the threshold reliability decision, the trial judge is not limited to
    considering only the circumstances under which the statements were made. The
    judge may also consider whether there exists evidence that confirms or
    corroborates the truthfulness and accuracy of the statements or undermines
    their reliability. In
Khelawon
, at paras. 98-99, the court referred
    with approval to the dissenting reasons of Kennedy J. in
Idaho v. Wright
,
    497 U.S. 805, at pp. 828-29 (1990):

I see no constitutional justification for this decision to
    prescind corroborating evidence from consideration of the question whether a
    child's statements are reliable. It is a matter of common sense for most people
    that one of the best ways to determine whether what someone says is trustworthy
    is to see if it is corroborated by other evidence.

The [majority] does not offer any justification for barring the
    consideration of corroborating evidence, other than the suggestion that
    corroborating evidence does not bolster the "inherent
    trustworthiness" of the statements. But for purposes of determining the
    reliability of the statements, I can discern no difference between the factors
    that the Court believes indicate "inherent trustworthiness" and
    those, like corroborating evidence, that apparently do not. Even the factors
    endorsed by the Court will involve consideration of the very evidence the Court
    purports to exclude from the reliability analysis.

[55]

In
    my view, Mr. Briscos statements, when considered with the confirmatory
    evidence, have sufficient threshold reliability to warrant their reception. I
    rely on the following circumstances:

·

The consistency of the statements: over many years and to several
    different people, Mr. Brisco referred to the existence of the two policies.

·

There was no obvious motive for Mr. Brisco to lie to his children
    or brother.

·

At least one of the statements, the statement to his son Jeffrey just
    before Christmas 2003, was made under circumstances of some solemnity: Jeffrey thought
    he was about to go to Afghanistan, and they were having a serious discussion
    about insurance.

·

It is unlikely that Mr. Brisco would have forgotten that he cancelled
    a million-dollar policy.

[56]

There
    is also some evidence that, considered cumulatively, tends to confirm the
    truthfulness of the statements, i.e. that Mr. Brisco believed he still owned
    both $1,000,000 policies, and supports the inference that the accidental death
    policy was cancelled through Canadian Premiers mistake. There is the fact,
    noted by the trial judge, that no letter confirming the cancellation of the
    accidental death policy was found in Mr. Briscos papers or in the appellants
    own files. There is the inherent improbability that Mr. Brisco would have chosen
    to retain the older (1993) Abbey Life hospitalization policy when he already
    had a similar policy from Heritage, purchased in 1996. It is also somewhat
    improbable that Mr. Brisco would cancel the Canadian Premier accidental death policy
    on August 25, 1998, when he had purchased it just months earlier in January 1998.
    Finally, there is the fact that the records of the conversations later the same
    day, concerning the Heritage policies, show some discussion about cancelling
    both of the accidental death policies with Heritage: the $1,000,000 policy and
    the $250,000 policy. It seems highly improbable that Mr. Brisco would discuss
    cancelling the $1,000,000 dollar Heritage policy if he had just, only minutes
    earlier, cancelled the Abbey Life $1,000,000 policy.

[57]

There
    are also some circumstances that tell against the $1,000,000 policy having been
    cancelled by mistake, especially the fact that the credit card statement no
    longer showed the premium deduction for that policy. On balance, however, the
    repeated statements by Mr. Brisco evidencing his belief that he had two million-dollar
    accidental death policies are sufficiently reliable to warrant their being
    admitted into evidence.

(2)

Section 13 of the
Ontario Evidence Act

[58]

The
    appellant submits that the trial judge erred in holding that s. 13 of the
Ontario
    Evidence Act
did not apply and that, in any event, there was evidence to
    corroborate the testimony of the children and Paul Brisco. In my view, s. 13
    only applied to the evidence of the executor, Paul Brisco, and not to the
    evidence of the children. Stripped of the unnecessary language, s. 13 provides
    as follows:

In an action by or against the heirs, next of kin, executors,
    administrators or assigns of a deceased person, an  interested party shall not
    obtain a verdict  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.

[59]

Section
    13, which is similar to provisions in other provinces, is an exception to the
    general rule in most common law countries that the evidence of one witness is
    capable of meeting the burden of proof in civil or criminal proceedings: see
R.
    v. Vetrovec
, [1982] 1 S.C.R. 811, at pp. 819-20.  Most statutory and
    common law requirements have fallen away in the last thirty to forty years,
    including requirements for corroboration of the evidence of children, rape
    victims and accomplices. Section 13 thus now stands as something of an anomaly
    in the law of evidence. Professor Wigmore was critical of these survivor
    disqualification statutes, especially when their effect was to wholly bar the
    testimony of the survivor. As he said, at
Wigmore on Evidence
, vol. 2
    (Chadbourn rev. 1979), at para. 578, p. 821:

The truth is that the present rule is open, in almost equal
    degree, to every one of the objections which were successfully urged nearly a
    century ago against the interest rule in general. Those objections may be
    reduced to four heads: (1) That the supposed danger of interested persons
    testifying falsely exists to a limited extent only; (2) That, even so, yet, so
    far as they testify truly, the exclusion is an intolerable injustice; (3) That
    no exclusion can be so defined as to be rational, consistent, and workable; (4)
    That in any case the test of cross-examination and the other safeguards for
    truth are a sufficient guaranty against frequent false decision. Every one of
    the first three objections applies to the present rule as amply as to the old
    and broader rule. The fourth applies with less apparent force, because the
    opponents testimony is lacking in contradiction. And yet, upon what
    inconsistencies is based even this support for the rule! For its defenders in
    effect declare the lack of this opposing testimony to be the sole ground for an
    exceptional rule adapted to that particular situation; and yet, since the
    deceased opponent is a party, he would have been by hypothesis a potential liar
    equally with the disqualified survivor; so that the rule rests on the supposed
    lack of a questionable species of testimony equally weak with that which is
    excluded. There never was and never will be an exclusion on the score of
    interest which can be defended as either logically or practically sound. Add to
    this, the labyrinthine distinctions created in the application of the
    complicated statutes defining this rule, and the result is a mass of vain
    quiddities which have not the slightest relation to the testimonial
    trustworthiness of the witness.

[60]

That
    said, Wigmore was of the view that if there needed to be some safeguard, a
    compromise in the nature of a corroboration requirement was better than an
    absolute exclusionary rule, although he still considered this compromise to be
    misguided.  As he said, at
Wigmore on Evidence
, vol. 7 (Chadbourn
    rev. 1978), at para. 2065, p. 488:

The danger against which this proposal attempts to guard is
    plausible. The same danger led most states to adopt the rule of absolute
    exclusion of such testimony. But the obnoxious character of that rule has been
    already noticed (§578
supra
). It remains only to observe that the
    present proposal, though decidedly an improvement over the rule of exclusion,
    and though lacking the peculiar vices of the latter, is nevertheless a misguided
    one:

In the first place, it favors the dead above the living, for it
    would rather see an honest survivor unjustly lose his claim than an honest
    decedent be made unjustly to pay; yet, the equities being equal, the living
    person should rather be favored.

In the next place, it is based on a mere contingency  the
    contingency that the claim will be dishonest and that there will be no means of
    exposing its dishonesty; and so, for the sake of defeating the dishonest man
    who may arise, the rule is willing to defeat the much more numerous honest men
    who are sure to possess just claims.

Finally, there is always an abstract impropriety and injustice
    in any rule which interposes a technicality to prevent judicial action upon
    testimony which is in fact completely believed and trusted.

[61]

The
    purpose of the rule is to guard against fraud in an action against the estate
    by a party to a transaction with the deceased. This objective is based on the
    fact that only the survivors testimony is available. Section 13, however, is
    drawn in broad terms to capture not only those who bring an action against the
    estate, but those bringing an action on behalf of the estate. And, as in this
    case, the rule potentially captures a case where the court does have the
    testimony of the deceased, albeit in the form of hearsay. In this latter case,
    the primary danger lies in the witnesses possible perjury, but they are
    available for cross-examination. That point is made by Corliss J. in
St.
    John v. Lofland,
64 N.W. 930, at p. 931 (N.D. Sup. Ct. 1895), which is referred
    to in
Wigmore on Evidence
, vol. 2, at para. 578, p. 821:

But those against whom a dishonest demand is made are not left
    utterly unprotected because death has sealed the lips of the only person who
    can contradict the survivor, who supports his claim with his oath. In the legal
    armory, there is a weapon whose repeated thrusts he will find it difficult, and
    in many cases impossible, to parry if his testimony is a tissue of falsehoods,
    ― the sword of cross-examination. For these reasons, which lie on the
    very surface of this question of policy, we regard it as a sound rule to be
    applied in the construction of statutes of the character of the one whose interpretation
    is here involved, that they should not be extended beyond their letter when the
    effect of such extension will be to add to the list of those whom the act
    renders incompetent as witnesses.

[62]

Given
    its anomalous place in the modern law of evidence, especially in a case such as
    this, I see no reason to give s. 13 a broad interpretation when considering its
    application nor a narrow interpretation when considering the scope of evidence
    capable of corroborating the evidence of the interested party.

(a)

The Application of s. 13 in the Present Case

[63]

In
    considering the meaning of the phrase heirs, next of kin, executors,
    administrators or assigns of a deceased person, it is my view that s. 13 is
    limited to circumstances in which the interested party claims as an heir, next
    of kin, executor, administrator or assignee and not simply because,
    coincidentally, the person happens to fall within one of these categories. In
    this case, the Brisco children do not claim as next of kin or heirs but under a
    contractual right as beneficiaries of an insurance policy. Under the Canadian
    Premier policy, Mr. Briscos wife was the beneficiary. If she was not living,
    the benefits were to be paid equally to your then living lawful children. Mr.
    Briscos spouse waived her right under the policy, leaving the children as next
    beneficiaries on the contract. It appears that Paul Brisco brought the action
    on behalf of the estate because the children had all signed an authorization
    for the estate to deal with contractual insurance matters on their behalf. As
    executor, he is caught by s. 13 and his evidence requires corroboration.
    However, such corroboration is available, both in the testimony of the children
    and in other independent evidence.

[64]

Since
    s. 13 has no application to the Brisco children, there is no need for
    corroboration of their evidence. The fact that the estate is involved does not
    mean that the evidence of the children must be corroborated:
Anderson v.
    Bradley
(1921), 51 O.L.R. 94 (C.A.), at p. 104, Middleton J.; and Alan W. Bryant,
    Sidney N. Lederman & Michelle K. Fuerst,
The Law of Evidence in Canada
,
    3d ed. (Markham: LexisNexis, 2009), at para. 17.51. In any event, it is my view
    that there is evidence that, when considered cumulatively, is capable of corroborating
    both the evidence of the children and that of Paul Brisco.

[65]

In
Sands Estate v. Sonnwald
(1986), 9 C.P.C. (2d) 100 (Ont. H.C.), Watt
    J. considered at some length the nature of the corroboration requirement in s.
    13.  He held, at p. 110, that corroboration should be such as to enhance the
    probability of truth of the suspect witness' evidence upon a substantive part
    of the case raised by the pleadings. As he pointed out, at p. 119:

[S]everal pieces of circumstantial evidence, taken together,
    may potentially corroborate the evidence of an opposite or interested party,
    notwithstanding that each item or piece of evidence viewed in isolation may not
    be so capable, provided that cumulatively the pieces or items satisfy the test
    of corroboration, that is to say, independent evidence which renders it
    probable that the evidence of an opposite or interested party upon a material
    issue is true.

[66]

In
    considering the admissibility of Mr. Briscos statements under the principled
    approach to hearsay, I have set out the evidence that I consider to be
    confirmatory of Pauls and the childrens evidence of Mr. Briscos statements,
    at para. 56 above. In my view, that same evidence, viewed cumulatively, is
    capable of satisfying the corroboration requirement in s. 13. Circumstantial evidence
    of a similar nature was found to be corroborative in
Burns Estate
. In
    that case, the issue was whether the transfer of a very large sum of money to
    the deceaseds friend was intended as a gift. Laskin J.A. found corroboration
    in the fact that no mention was made of this money in the deceaseds will and
    that the deceased refused to give his daughters an explanation for the
    transfer.

[67]

In
    this case, the following evidence supports the truthfulness of Pauls and the
    childrens evidence. No letter confirming the cancellation of the accidental
    death policy was found in Mr. Briscos papers or in the appellants own files,
    and it is somewhat improbable that Mr. Brisco would have retained the older
    (1993) Abbey Life hospitalization policy (instead of the $1,000,000 accidental
    death policy) when he already had a similar hospitalization policy from
    Heritage, purchased in 1996. It is also somewhat improbable that Mr. Brisco
    would cancel the Canadian Premier accidental death policy in August 1998, only
    months after having purchased it in January of that year. Finally, records of
    the conversations concerning the Heritage policies show discussion about
    cancelling both of the accidental death policies with Heritage: the $1,000,000 policy
    and the $250,000 policy. As I have said earlier, it seems highly improbable
    that Mr. Brisco would discuss cancelling the $1,000,000 policy if he had just
    cancelled the Canadian Premier $1,000,000 policy. Thus, in my view, this
    evidence, when viewed cumulatively, is capable of corroborating the evidence of
    the children, if that were necessary. This evidence, along with the evidence of
    the children, also corroborates the evidence of Paul Brisco.

(3)

The Charge to the Jury

(a)

The Charge to the Jury on the use of the
H
earsay
E
vidence

[68]

The
    appellant submits that the trial judge did not adequately direct the jury as to
    the frailties of the hearsay evidence and that, in particular, he erred in
    failing to include a warning that the statements could not be used to prove the
    truth of their content, that they could not be cross-examined upon, and that
    the fact that the statements had been made to multiple plaintiffs did not
    constitute corroboration of them.

[69]

While
    I agree that the trial judges directions concerning the frailties of the
    hearsay evidence could have been more expansive, I would not give effect to
    this submission. I say that for several reasons. First, the trial judge did
    instruct the jury that the statements went to Mr. Briscos state of mind and
    specifically to his belief that he had two million-dollar policies. He then
    instructed the jury how that belief could be used to draw an inference as to
    the probability that he would have cancelled one of them on August 25, 1998.
    Second, there was no objection by counsel for the appellant to the trial judges
    charge on the frailties of the hearsay evidence. Third, it would have been
    patently obvious to the jury that Mr. Brisco was not available for
    cross-examination. Fourth, counsel for the appellant reviewed at considerable
    length in his closing address to the jury the circumstances of the August 25
    calls and the frailties of the statements by Mr. Brisco. Finally, in the
    pre-charge conference, counsel made no submissions to the trial judge
    concerning this issue and did not request any special instruction.

[70]

As
    this court has repeatedly said, in a civil jury trial, the failure to object
    will be given considerable weight. Most recently, in
Vokes Estate v. Palmer
,
    2012 ONCA 510, 294 O.A.C. 342, at para. 7, the court held as follows:

While a failure to object is not always fatal in a civil jury
    trial, "an appellate court is entitled to give it considerable
    weight":
Marshall v. Watson Wyatt & Co.
(2002), 57 O.R. (3d)
    813, 209 D.L.R. (4th) 411 (C.A.). In the absence of an objection at trial, in
    most instances, an alleged misdirection or non-direction will not result in a
    new trial in a civil case unless the appellant can show that a substantial
    wrong or miscarriage of justice has occurred:
Pietkiewicz v. Sault Ste.
    Marie District Roman Catholic Separate School Board
(2004), 71 O.R. (3d)
    803 (C.A.) at paras. 22-28.

[71]

In
    considering whether a miscarriage of justice has occurred, the court will
    consider the entire record, including counsels jury addresses:
Berthiaume-Palmer
    v. Borgundvaag
, 2010 ONCA 470, 273 O.A.C. 397, at paras. 15 and 20. While
    it would have been better for the trial judge to have expanded upon the hearsay
    evidence, especially the possibility that Mr. Brisco forgot he had cancelled
    the policy and made no inquiry about his credit card statement that showed the
    continued deduction for the hospitalization policy and not the accidental death
    policy, the appellant has not shown that the charge is materially deficient:
    see
Brochu v. Pond
, (2003), 62 O.R. (3d) 722 (C.A.), at para. 68.

(b)

Review of the Evidence in the Charge to the
    Jury

[72]

The
    appellant submits that the trial judge did not adequately review the evidence
    and misstated some of the evidence. At trial, counsels objection to the review
    of the evidence as it related to whether Canadian Premier had mistakenly
    cancelled the accidental death policy was limited to the trial judges comments
    on how some of the earlier policies were characterized and to the evidence of
    Ms. Goldberg about the length and number of telephone calls on August 25, 1998.
    On appeal, the appellant launches a much broader attack on the review of the
    evidence, submitting, for example, that the references to the evidence of Ms.
    Goldberg and to Mr. Briscos credit card statement were not sufficient.

[73]

I
    would not give effect to these submissions. The trial judge may have misspoken when
    referring to some of the policies, but the jury had a Brisco Coverage Chart,
    Exhibit #13, that accurately summarized the various policies. As to the
    complaint about the length and number of telephone calls on August 25, the
    trial judges review of that evidence was accurate. As to the other complaints,
    for the reasons set out above with respect to the charge to the jury on the
    hearsay evidence, I would not give effect to them.  When the extensive
    references to the evidence in the appellants counsels jury address are
    considered, the appellant has not shown that any alleged misdirection or
    non-direction resulted in a substantial wrong or miscarriage of justice.

(c)

The charge to the jury on the burden of proof

[74]

The
    trial judge repeatedly told the jury that the burden of proof was on the
    plaintiffs to prove their case. And, the written questions left with the jury
    concerning cancellation of the policy inform the jury that the burden of proof
    was on the plaintiffs.  The relevant questions were worded as follows:

1.   Have the
    plaintiffs proven that the Canadian Premier Certificate 44AG4M7282 was
    cancelled by mistake? (yes or no)

2.   If the
    answer to question #1 is yes, whose mistake was it, Canadian Premier or Robert
    Brisco?

[75]

The
    appellant submits, however, that the trial judge misdirected the jury
    concerning the burden of proof when dealing with cancellation of insurance
    policies. The impugned directions were as follows:

Now, let me tell you about the law with respect to cancellation
    of insurance policies. In considering the question of whether the Canadian
    Premier Life policy for one million dollars was cancelled,
you must be
    certain as a matter of law that the instructions received by the company to
    cancel the policy were clear, unconditional, and unequivocal, and that in all
    circumstances, any doubts as to whether instructions were given to cancel the
    policy must be construed against the cancellation.

Your task, as reflected in the questions which you will take to
    the jury room with you to consider and answer will include not only your
    conclusion as to what happened on August 25th, 1998, but also, what Bob
    intended to accomplish with his telephone calls that day. In that regard, you
    may draw whatever inferences there are available to you based on the evidence
    you heard.

It will be your task to determine if Bob Brisco intended to
    cancel the million-dollar policy or whether it came about as a result of a
    mistake or misunderstanding. You must decide whether Bob was confused or if his
    instructions accurately reflected what it was that he wanted to have carried
    out. In that regard, you will be asked to determine if Ms. Goldberg, on behalf
    of the Canadian Premier Life, adequately carried out her responsibilities, and
    what was occasioned as a result of the failure by Premier Life to send any
    correspondence to Bob Brisco confirming his conversation that day on August 25th,
    1998 about the million-dollar policy.

In that regard, I will advise you that there is a heavy
    onus on an insurance company such as the Canadian Premier Life to ensure a safe
    handling of all correspondence relating to their policies of insurance.

If you conclude that the plaintiffs have not persuaded you on a
    balance of probabilities that the million-dollar Canadian Premier Life policy
    was cancelled by mistake, that would be the end of the matter for your
    consideration with respect to that policy. However, if you find that it was
    cancelled by mistake, you must then decide whose mistake it was, and whether it
    was cancelled by the mistake of the Canadian Premier Life, or by the mistake of
    Bob Brisco.

If you find on a balance of probabilities that it was Canadian
    Premier Life that made the mistake in cancelling the policy, then that would be
    the end of your deliberation with respect to that policy. If you find on a
    balance of probabilities that Robert Brisco, although not intending to cancel
    this policy, mistakenly instructed Ms. Goldberg to cancel that policy, you must
    then decide whether Canadian Premier Life was negligent in failing to send a
    confirming letter to Bob Brisco of his instructions to cancel that policy, and
    if you find that Canadian Premier Life was in fact negligent in failing to send
    such a written notification to Bob Brisco, you must then find on a balance of
    probabilities that  well, you must then find, not on a balance of
    probabilities, and Ill tell you the degree of proof related to that shortly,
    you must then find whether, for the lack of that notice, Bob Brisco would have
    requested that the Canadian Premier one-million-dollar accidental-death policy
    be reinstated, and if you should conclude that Bob Brisco, under these
    circumstances, would have made that request to Canadian Premier to reinstate
    the policy which he had mistakenly requested to be cancelled, you must then
    decide whether this policy would have been reinstated by Canadian Premier.
    [Emphasis added.]

[76]

In
    the pre-charge discussion, there was considerable discussion about whether the
    appellant bore the burden of proof of cancellation because it had raised an
    affirmative defence and about how the jury questions should be worded. In the
    course of that discussion, trial counsel for the respondents referred to the decision
    of Goodman J. in
Ethier Estate v. T. Eaton Life Assurance Co.
, [1977] I.L.R.
    587, at p. 593:

Although my findings do not depend on this, I was far from
    satisfied on the evidence that the Assurance Company had established any
    adequate procedure to protect both their policyholder and itself from the
    possibility of errors being made in the handling of correspondence,
    authorizations and premiums to the detriment to any of them.
In my view,
    there is a heavy onus on the Assurance Company to ensure the safe handling of
    all correspondence
relating to policies of insurance having regard to the
    fact that it is obvious that all dealings between the company and its
    policyholders, as was the case in the present instance, is transacted from
    beginning to end by mail. [Emphasis added.]

[77]

At
    least some of the impugned instructions would seem to have originated in this
    part of Goodman J.s reasons for judgment in the
Ethier Estate
case. Trial
    counsel for the appellant did not suggest that this was an erroneous statement
    of the law, and he did not object to the trial judges charge to the jury on
    the burden of proof. Counsel for the appellant did object to portions of the
    charge to the jury concerning the burden of proof, but only as it related to
    the jury questions about negligence. In my view, given the repeated references
    to the plaintiff having the burden of proof, the impugned instructions did not
    result in a miscarriage of justice in respect of whether the plaintiffs proved both
    that the policy was cancelled by mistake and that the mistake was made by
    Canadian Premier. The impugned directions would more likely be taken by the
    jury as relating to the issue of negligence rather than the factual question of
    who cancelled the policy. I am strengthened in that view by the fact that
    appellants counsel did not object to the charge as it related to jury questions
    one and two.

(4)

Grounds of appeal relating to negligence

[78]

The
    respondents argued at trial in the alternative that the appellant was negligent
    in failing to properly notify Mr. Brisco of the cancellation of the accidental
    life policy. Since the jury found that the insurance certificate was cancelled
    by Canadian Premiers mistake, it did not reach any of the questions relating
    to negligence. On appeal, the appellant raises a number of grounds of appeal
    that relate to the issue of negligence, including the admissibility of the
    respondents expert evidence, the cross-examination of the appellants expert,
    and the wording of the questions left to the jury concerning negligence. In
    view of my conclusion that the hearsay evidence was admissible and there was
    therefore a basis for the jurys verdict that the appellant mistakenly
    cancelled the accidental life policy, it is unnecessary to consider the grounds
    of appeal relating to negligence.  If there were any errors, they could not
    have affected the verdict, which did not rest upon negligence.

D.

DISPOSITION

[79]

Accordingly,
    I would dismiss the appeal with costs fixed at $25,000 inclusive of HST and
    disbursements.

Released:
M.R. December 5, 2012                       M.
    Rosenberg J.A.

I
    agree S.T. Goudge J.A.

I
    agree K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Cain v. 1150320 Ontario Inc.
(The
    Antique Shoppe), 2012 ONCA 920

DATE: 20121227

DOCKET: C55670

Cronk, Juriansz and Pepall JJ.A.

BETWEEN

Michael Cain

Plaintiff/Respondent

and

1150320 Ontario Inc. c.o.b. as The Antique Shoppe
, Neil
  Perry, Bluewave Energy LP., Trevor Bennett c.o.b. Trevor
  Bennett Oil Tank Installation, Mary Eileen Stephenson, R.H.
  Thomson & Sons Ltd. and Houle Chevrier Engineering Ltd.

Defendants/
Appellant

and

2118194 Ontario Inc.
    c.o.b. Marlborough Pub and Donald Ferguson c.o.b. Ferguson Haulage &
    Equipment Rentals

Third Parties

and

1496369 Ontario Inc.

Fourth Party

Joseph Y. Obagi, for the appellant

Michael S. Hebert and Cheryl Gerhardt McLuckie, for the
    respondent

Heard:  December 19, 2012

On appeal from the judgment of Justice Monique Métivier of
    the Superior Court of Justice dated May 22, 2012, with reasons reported at 2012
    ONSC 3018.

ENDORSEMENT

[1]

The respondent lessor sued the appellant lessee and others for damages
    arising from the escape of oil from the appellants above ground storage tank.

[2]

The appellant brought a motion for the determination, before trial, of a
    question of law, pursuant to rule 21.01(1)(a) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. At issue was whether the parties
    commercial lease contained an express or implied covenant by the respondent to
    insure against the loss such that the respondents action against the appellant
    would be barred.

[3]

The motion judge determined that the lease did not contain such an
    express or implied covenant and that the respondent was therefore able to
    proceed with his action.

[4]

Both counsel agreed that the applicable jurisprudence is unsettled.  An
    issue raised pursuant to rule 21.01(1)(a) should not be resolved against a
    party unless it is plain and obvious that it could not succeed at trial:
Friedmann
    Equity Developments Inc. v. Final Note Ltd.
(1998), 41 O.R. (3d) 712

(C.A.),
    at p. 718.

[5]

Based on the record before us and the state of the jurisprudence, it is
    not plain and obvious whether the lease contained a covenant to insure for the
    loss claimed by the respondent.  Accordingly, paragraph 1 of the judgment,
    which addresses this issue, is set aside without prejudice to the parties to
    advance their respective positions at trial.

[6]

That said, we agree with the motion judges conclusion that the
    appellants motion for an order dismissing the action and crossclaims against
    it should be dismissed.

[7]

The appeal is therefore allowed in part. The appellant is entitled to its
    costs of the appeal, fixed in the amount of $7,500, inclusive of disbursements
    and all applicable taxes.

E.A. Cronk J.A.

R.G. Juriansz J.A.

S.E. Pepall J.A.