IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Wall v. Horn Abbot Ltd., 2006 NSSC 400
Date: 20060705
Docket: S.Sn. No. 101331
Registry: Sydney
Between:
David Wall
Plaintiff
v.
Horn Abbot Ltd., 679927 Ontario Limited (formerly Horn Abbot Productions Limited), Christopher Haney, Charles Scott Abbott, John Haney and Edward Martin Werner
Defendants
__________________________________________________________________
D E C I S I O N
__________________________________________________________________
Judge: The Honourable Justice A. David MacAdam
Heard: July 4 and 5, 2006, in Sydney, Nova Scotia
Oral
Decision: July 5, 2006
Written Decision: January 31, 2007
Counsel: Kevin MacDonald, for the Plaintiff
John C. Cotter for Horn Abbot Ltd., 679927 Ontario Limited (formerly Horn Abbot Productions Limited)Defendants
William Ryan, Q.C., Christa Hellstrom, for Christopher Haney, Charles Scott Abbott, John Haney and Edward Martin Werner, Defendants
MACADAM, J.: Orally
[1] The plaintiff seeks to introduce at trial what is alleged to be similar fact evidence relating to the individual defendant, Christopher Haney. The defendants submit the proposed evidence does not qualify as “similar fact evidence” and, therefore, should not be accepted at the trial.
Background
[2] The event, upon which this proceeding is based, is suggested to have occurred in the Fall of 1979. The plaintiff says he met the defendant, Christopher Haney, while he and a friend, Donald Campbell, were hitchhiking in Cape Breton, Nova Scotia. He says, after being picked up by Mr. Haney, that on a promise of confidentiality by Mr. Haney, he disclosed to him details of a board game he had invented. The plaintiff says there was a discussion among the three persons which resulted in the “near complete invention” of the board game known as “Trivial Pursuit”. The plaintiff says it was not until the fall of 1982 that he first became aware that “Trivial Pursuit” had been brought to market. He apparently retained counsel in 1993 and this proceeding was commenced in November 1994. The plaintiff alleges that in breach of an understanding between himself and Christopher Haney, the latter “stole his idea for a game” and proceeded, with the other individual and corporate defendants, to develop and market it for themselves.
[3] The plaintiff says there is similar fact evidence he wishes to introduce at the trial in respect to other instances of “misconduct” on the part of the Christopher Haney. The plaintiff says he has reason to believe that while living in Spain, and working on the questions for “Trivial Pursuit”, he was collecting unemployment insurance benefits contrary to the rules and regulations for such benefits, requiring the recipient to be “ready, willing and able to work”. Counsel suggests that by declaring he was “ready, willing and able to work” at a time when he resided outside of Canada his declaration would have been a fraudulent misrepresentation. Counsel says this is similar fact evidence, adding that, “... at the very time he was defrauding Mr. Wall of his idea for Trivial Pursuit, he was also engaged in other acts of fraud surrounding bringing the game to market”.
[4] A second suggested area of similar fact evidence, the plaintiff says, is another instance when the individual defendant Christopher Haney also claimed credit for inventing a game he had not actually invented. In this regard, the plaintiff has submitted the affidavit of Matthew Hughes who deposes that he and a group of six others, who liked to play complex board games, decided to form a partnership and create their own game. Mr. Hughes detailed the circumstances surrounding the development of the game, which later was marketed as “Gender Bender”, and says it was identified, improperly, as “Chris Haneys latest invention”. Mr. Hughes deposes that Mr. Haney was not the inventor, merely the agent for the game. Therefore, the plaintiff says, this is relevant similar fact evidence for purposes of this trial.
[5] The defendants, on the other hand, submitted a number of affidavits from persons involved in the development and marketing of “Gender Bender” who dispute the allegations of fact made by Mr. Hughes and say, in effect, to the extent there was an overstatement of the role of Mr. Haney in the invention of the game that was not the fault of Mr. Haney, rather, it was by some of the individuals and corporations involved in the development and marketing of “Gender Bender”. In these affidavits, some of the deponents state they have no direct knowledge that Chris Haney ever claimed to be the creator or inventor of “Gender Bender”.
[6] There is clearly, therefore, a dispute among some of those involved in the development and marketing of “Gender Bender” as to the role, or claimed role, of Mr. Haney
[7] The law on the admissibility of similar fact evidence, in the civil context, was considered by the Nova Scotia Court of Appeal in Dhawan v. College of Physicians & Surgeons (Nova Scotia) (1998), 168 N.S.R. (2d) 201 where Justice Chipman, in referring to the rule from Makin v. Attorney General for New South Wales, [1984] A.C. 57 (P.C.) observed:
60 Thus the general rule of evidence which prohibits a party from adducing evidence of bad character of an opposite party operates to exclude evidence of the accused’s disposition or propensity to commit crimes, or evidence of specific instances of misconduct on other occasions. The similar fact rule is an exclusionary rule, and an exception to the general principle that all relevant evidence is admissible. It permits evidence of other unsavoury conduct only if it is so probative of a fact in issue as to outweigh the prejudice it causes: R. v. R. (J.D.) (1987), 33 C.C.C. (3d) 481 (S.C.C.)
62 Emphasis has now shifted away from a category-based approach to the resolution of two broad questions: (1) whether the similar fact evidence is relevant to some other issue beyond disposition or character; and, (2) whether the probative value of the evidence outweighs its prejudicial effect. ...
63 The categories of probative value are never closed. They include support of the credibility of the complainant, evidence of system, of striking similarity, and to rebut suggestions of accident. These are but examples.
[8] Traditionally, issues relating to similar fact evidence have arisen primarily in criminal, as opposed to civil trials. It is broadly accepted that similar fact evidence is less objectionable in civil cases. Nevertheless, “the same rules apply, and the evidence sought to be introduced must have a sufficient nexus with or display the requisite relevance or materiality to the issues in the case.” Evidence going to show “general disposition” alone will not be admissible. Sopinka et al in The Law of Evidence in Canada, (Second Edition 1999) summarize, at para 11.208:
... while the rules relating to the inadmissibility of similar fact evidence in civil cases reflect very strongly the influence of the “category” approach of the earlier criminal cases, they in fact focus on whether the evidence is relevant to a material issue. The categories of relevance are not closed and the inquiry should concentrate on determining the probative value of evidence without the constraint of fitting the evidence into a particular pigeonhole. Moreover, prejudice, which dominates the determination of admissibility of similar fact evidence in criminal cases, play a significantly lesser role in civil cases, and evidence of similar facts should be admitted if it is logically probative to an issue in the case as long as, to borrow the formula of Lord Denning [in Mood Music Publishing Co. v. DeWolfe Ltd.., [1976] 1 All E.R. 763 (C.A.) at 766], it is not unduly ‘oppressive or unfair’ to the other side, does not consume a disproportionate amount of court time, and does not bear the whole burden of proving the case.
[9] Again in the criminal context, Justice Grange of the Ontario Court of Appeal in R. v. Carpenter (No. 2), (1982), 142 D.L.R. (3d) 237, 31 C.R. (3d) 261 at p. 268 (C.R.), observed:
... The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.
[10] In The Law of Evidence in Canada, op.cit., the authors at para. 11.151, after referencing the foregoing, continued:
Where, however, the probative value of the evidence sought to be introduced depends upon the similarity between the offence and the evidence of the other offences, the similarities must be such as to give that evidence the high degree of cogency required to justify its admission, having regard to the inevitable prejudice caused to the accused by its introduction. Thus, the more work the similar act evidence is required to do to prove the prosecution’s case, the more cogent the evidence must be.
[11] Also in the criminal context, Justice McLachlin, as she then was, in R v. B.(C.R), [1990] 1 S.C.R. 717 was concerned with a proceeding where the complainant, the natural daughter of the accused, alleged progressive sexual conduct by the accused. The trial judge permitted the admission of evidence that approximately some ten years earlier, the accused had engaged in progressive sexual acts with a person with whom he then stood in a father-daughter relationship. Justice McLachlin held that the accused had a father-daughter relationship and the evidence may go to show a system or design or a pattern of similar behaviour.
[12] The issue of similar fact evidence was further considered, in the context of fraud, in Alexander J. Holdings v. Delta Play Ltd., 1999 Carswell BC 1282 (B.C.S.C.) A playground owner alleged that a supplier had fraudulently misrepresented itself as the only supplier and installer in the area, as well as fraudulently representing the cost of a playground construction project. The supplier objected to the admission of evidence of former customers who claimed to have had similar experiences, and whose evidence was “essentially that [the defendant] quoted a set price for a turn key operation and told them that Delta was the only manufacturer of this equipment in Canada. All of the intended witnesses were unhappy with their dealings with Delta and each told of going over budget. The defendant argued that the evidence went “merely to disposition.” The plaintiff claimed that it had a nexus with the issues in the case, and that it showed a pattern of conduct by the defendant. Warren, J. concluded:
In my view, the evidence is admissible. While there were differences in the versions related by these four witnesses of their dealings with Buchanan and Delta, the substantive portion was remarkably similar to the events related by Good before me. In considering his earlier decision in [MacDonald v. Canada Kelp. Co., [1973] 5 W.W.R. 689 (B.C.C.A.)], Bull J.A. in Contini v. Canarim Investment Corp., [1974] 5 W.W.R. 709 (B.C.C.A.), at 711 said:
There [in MacDonald] a plan or scheme was asserted that for the purpose and in the course of privately selling shares in a venture to members of the public the same alleged fraudulent misrepresentation sued upon were, during the same general period, allegedly made to other potential purchases in the like position as the plaintiffs. On that basis the evidence of the other statements was held relevant and material to the issue of whether or not the like statements were in fact made to the plaintiffs.
The evidence in the instant case refers to dealings which occurred during the same general time period and is relevant to the issue of whether the plaintiff was induced to do business only with the defendant company on the basis of the misrepresentation that Delta was the only Canadian manufacturer of soft play equipment.
[13] This case perhaps demonstrates a less stringent test of “similarity” for the admission of similar fact evidence in civil as opposed to criminal trials. Nevertheless, there is the requirement for some degree of similarity; otherwise, the evidence goes only to “character” or “general disposition” and therefore is not admissible.
1. Collection of Unemployment Premiums
[14] Apart from suggesting further misconduct on the part of Christopher Haney, and perhaps even criminal conduct, the proposed evidence with respect to his collection of unemployment insurance premiums while in Spain has no similarity to the allegation that he “stole” the plaintiff’s idea for a board game and proceeded to develop and market it for his own benefit, to the exclusion of the plaintiff. There is no similarity even when assessing the circumstances in the suggested more relaxed approach relating to civil matters. The application to introduce such evidence is therefore denied.
2. The Evidence of Mr. Haney Claiming To Having Invented Another Game.
[15] Assuming, without necessarily deciding, the circumstances alleged relating to Mr. Haney claiming credit for inventing “Gender Bender” would meet the twofold test of similarity and probative value, there is the circumstance that the evidence is not, in respect to those involved in the development and marketing of “Gender Bender” without dispute. As noted, the plaintiff has introduced the affidavit of one Matthew Hughes claiming Mr. Haney improperly claimed credit as an inventor or co-inventor of the game. On the other hand, the defendants have introduced affidavits of others involved in the development of the game disputing the allegations by Mr. Hughes, and in one instance suggesting, to the extent that Mr. Haney’s role was overstated, this was not the result of a claim put forward by Mr. Haney, but rather, by the organization involved in marketing the game. Clearly the allegations by Mr. Hughes are disputed.
[16] In The Law Of Evidence, (op. cit.), at para. 11.157, the authors note that:
[I]f the discreditable conduct is disputed and its proof weak, this factor will adversely affect the probative value of the similar fact evidence.
[17] At p. 55, the authors further observe:
The more compelling the proof of the similar act is, the more probative value the evidence has.
[18] In the context of a criminal case, also relevant is the decision of the Supreme Court in R v. Handy, [2002] 2 S.C.R. 908. The accused had denied the allegations of similar -fact evidence. The Court considered the strength of the evidence that the similar acts occurred as an aspect of probative value, noting that the accused had not admitted the prior acts and the witnesses’ credibility had been attacked on cross-examination. At para. 134 the Court observed that:
... Where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function, is, in my view, entitled to take into consideration.
[19] The accused’s denial of the allegation was also considered with respect to prejudice. At para. 146:
Further, there is a risk, evident in this case, that where the ‘similar facts’ are denied by the accused, the court will be caught in a conflict between seeking to admit what appears to be cogent evidence bearing on a material issue and the need to avoid unfairness to the right of the accused to respond. The accused has a limited opportunity to respond. Logistical problems may be compounded by the lapse of time, surprise, and the collateral issue rule, which will prevent (in the interest ...
[20] Another important factor is the cogency of the evidence proving the occurrence of discreditable conduct. If the discreditable conduct is disputed, and the proof is weak, this factor will adversely affect the probative value of the similar-fact evidence.
[21] D. Paciocco and L. Stuesser, in The Law of Evidence, (4th ed., 2005) at p. 47, although again in the criminal context, summarize a number of considerations on the issues of prejudice and probative value:
In assessing the probative value of the evidence, consideration should be given to such things as:
* the strength of the evidence that the discreditable or criminal act occurred;
* the extent to which the discreditable or criminal act supports the inferences sought to be made (a.k.a. the ‘connectedness’ of the evidence to the ‘questions in issue’); and
* the extent to which the matters it tends to prove are at issue in the proceedings (the materiality of the evidence).
In assessing the risk of prejudice caused by the evidence, consideration should be given to such things as:
* ‘moral prejudice,’ being the risk that the evidence will be used to draw the prohibited inference that the accused is the kind of bad person likely to commit the offence charged; and
* ‘reasoning prejudice’ which includes the risk that:
- the trier of fact may be distracted from deciding the issue in a reasoned way because of the inflammatory nature of the proposed evidence;
- the trier of fact may become confused about what evidence pertains to the crime charged, and what evidence relates to the alleged similar act;
- the trial will begin to focus disproportionately on whether the similar act happened; and
- the accused will be unable to respond to the allegation that the similar act occurred, because of the passage of time, surprise, or the collateral nature of the inquiry.
[22] The issue of the disputed nature of this evidence was addressed by counsel for the corporate defendants, in his submission:
Further, and in any event, to use the language from The Law of Evidence in Canada, the purported similar fact evidence will ‘consume a disproportionate amount of court time’. This is because the evidence of Matthew Hughes is not on uncontested matters. Rather the evidence of Matthew Hughes will involve a credibility issue. As can be seen from the brief of the individual defendants, there are at least four potential witnesses with evidence contrary to that of Matthew Hughes.
[23] The affidavits were, pursuant to court direction, introduced without cross-examination for the purpose of assessing the alleged similar fact evidence and whether it was “likely” to be admissible. The plaintiff sought an initial ruling on the basis that Mr. Hughes, a resident of the Province of British Columbia, would not be brought to Nova Scotia to give evidence at trial if it was “unlikely” the evidence would be admissible. I am satisfied from his affidavit there is some evidence that could constitute “similar fact evidence”. However, I am similarly aware that there are affidavits filed by the defendants which contest the validity of that evidence. In effect, this is an application to introduce similar fact evidence which is itself disputed. It is disputed by the persons that were involved in the circumstances relating to the events which are alleged to constitute the similar fact evidence. The persons disputing the evidence of Mr. Hughes were involved in aspects of the creation or marketing of the game, and each have denied the major thrust of Mr. Hughes’ affidavit, namely that Christopher Haney claimed to be the creator or inventor of “Gender Bender”. Clearly, the nature of this dispute demonstrates that if the evidence is admitted as similar fact evidence, there will be a “mini trial” to determine the credibility of the evidence supporting the claim of Mr. Hughes, and therefore, there will have to be a determination of credibility in respect to his allegation.
[24] In the circumstances, I am satisfied it would not be appropriate to admit this evidence as similar fact evidence. To do otherwise would be to conduct a “mini trial” on less than full evidence and making a determination of credibility on another claim in order to determine its relevance and probative value in respect to the issues involved in this trial. This would of course, among other things, be unfair to the parties involved in the allegations by Mr. Hughes, since it would be the determination of credibility on what is likely to be less than the full presentation of all evidence that may relate to his claim. The risk and dangers of making such a determination of credibility, on less than the full evidence that may be available on a full trial, is patently obvious.
[25] The matter of the circumstances alleged by Mr. Hughes, even if accepted, only mirror the present allegations in a general sense. Here the allegation is that while travelling in Cape Breton, Nova Scotia Mr. Haney received information from Mr. Wall on his idea for a board game, on an understanding of confidentiality and on acknowledging that the game belonged to Mr. Wall. Mr. Hughes’ allegations is that Mr. Haney, in effect, exaggerated his role in the creation of “Gender Bender”. There are similarities, however, they are not “overly striking”.
[26] There is, in view of the disputed nature of the evidence, the real concern that the focus, at least in part, of the trial will be on the credibility of Mr. Hughes’ allegations rather than where it should be, on the credibility of Mr. Wall’s allegations.
[27] The application to tender evidence, suggested to be similar fact evidence of the claim by Mr. Haney to have invented another game, is therefore also denied.
MacAdam, J.