10 Objections you will hear in a Civil Trial.

Trial is an art, a painting. As the trial lawyer, you are the painter and your mind/voice is the paint brush. You must practice this art to ultimately become Picasso, or more aptly, Clayton Ruby. One brush stroke a trial lawyer must master is Objections: when to object; how often; what the intent of the objection is; etc.

Here at 10 Objections that you, as a Trial Lawyer, can anticipate utilizing at a Civil Trial (utilizing the “Trial Objections Cheat Sheet” from Thomson Reuters):

(1) OBJECTION: IRRELEVANT

A question that is clearly irrelevant need not be answered. Relevance is defined by the pleadings. To be relevant, the evidence being sought must increase or decrease the probability of the truth of a fact in issue in the proceeding (R. v. Morris, 1983 CarswellBC 695 (S.C.C.); Ontario v. Rothmans Inc., 2011 CarswellOnt 2916 (Ont. S.C.J.), at paragraph 110).

(2) OBJECTION: LEADING THE WITNESS

On examination-in-chief, counsel may not ask the witness a question that suggests or assumes an answer about a fact that is in dispute (R. v. Rose, 2001 CarswellOnt 955 (Ont. C.A.), at paragraph 9; Maves v. Grand Truck Pacific Railway, 1913 CarswellAlta 82 (Alta. S.C. en banc) (Maves), at paragraph 22). Open-ended questions are appropriate on examinationin- chief. The concern is that a witness whose interests are aligned with, rather than adverse to, the party that called her will too readily agree with the suggestions put to her rather than giving her own evidence.

Exception: Non-Controversial Matters: A party may ask leading questions of its own witness on preliminary and non-controversial issues. This practice is seen as speeding up the trial process and does not give rise to serious concern. Where necessary, leading questions may also be used to direct the witness to a particular event or subject matter (R. v. T. (J.A.), 2012 CarswellOnt 3338 (Ont. C.A.), at paragraph 93; Maves, at paragraphs 24 to 26).

(3) OBJECTION: IMPROPER RE-EXAMINATION

Re-examination must be confined to matters arising on cross-examination. A party cannot split her case and introduce new facts on re-examination (R. v. Evans, 1993 CarswellBC 495 (S.C.C.), at paragraph 36).

(4) OBJECTION: AMBIGUOUS OR VAGUE:

A witness does not have to answer a question that is ambiguous or vague (Ortega v. 1005640 Ontario Inc., 1999 CarswellOnt 2002 (Ont. Master)), confusing, unclear overly broad or misleading (Forlii (Guardian of) v. Wolley, 2002 CarswellBC 1493 (B.C. S.C. [In Chambers]), at paragraph 9). The court may intervene to curtail or clarify questions that are vague, wordy or repetitive (R. v. Snow, 2004 CarswellOnt 4287 (Ont. C.A.), at paragraphs 22 and 25).

(5) OBJECTION: NEEDLESS REPETITIONS (ASKED AND ANSWERED)

The mere fact that something has been “asked and answered” is generally not considered a valid objection. Where a question is being repeated to the point of being abusive or berating the witness, or a waste of court time, it may be appropriate to object (R. v. McLaughlin, 1974 Carswell Ont 4 (Ont.C.A.), at paragraph 22; R. v. Lowe, 2009 Carswell BC1923 (B.C. C.A.), at paragraph 51).

(6) OBJECTION: FACTS NOT IN EVIDENCE

A question may be objectionable if it assumes fact that have not already been put into evidence, where answering the question could be seen as an acceptance of the underlying unproven fact (R. v. Elder-Nilson, 2006CarswellOnt 6716 (Ont. C.J.)). For example, you cannot ask a witness why they did not report an allegedly fraudulent transfer without first establishing that she actually knew that the transaction had occurred.

(7) OBJECTION: HEARSAY

Evidence of an out-of-court statement is inadmissible where: (i) The statement is being put forward as truth of its contents; (ii) There is no opportunity to contemporaneously cross- examine the person who made the statement: R. v. Khelawon, 2006 CarswellOnt 7825 (S.C.C.), at paragraph 65. The primary concerns with hearsay are that: (i) The statement was not made under oath; (ii) Counsel will not be able to test the credibility of the speaker and statement through cross-examination; (iii) there must be a connection between the similar acts and the party; (iv) the trier of fact will not have an opportunity to observe the demeanour of the person making the statement; (v) there is no way to test whether the statement has been repeated correctly: R. v. Hawkins, 1996 CarswellOnt 4062 (S.C.C.), at paragraph 60.

(8) OBJECTION: OPINION

A witness is to testify to facts within his or her knowledge. A witness is not to give his or her opinion or draw inferences. That is the job of the trier of fact (R. v. Abbey, 1982 CarswellBC 230 (S.C.C.), at paragraph 43).

Exception: Lay Opinion: Where opinion and fact are tied up in a witness’ recollection of observations, opinion evidence may be admitted where all of the following criteria are met: (i) the witness has personal knowledge; (ii) the witness is in a better position than the trier of fact to form the opinion; (iii) the witness has the necessary experiential capacity to make the conclusion; (iv) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility describe the facts she or he is testifying about: See Hollowcore Inc. v. Visocchi, at paragraph 184; Dow Chemical Canada ULC v. Nova Chemicals Corp., 2015 CarswellAlta 1196 (Alta. Q.B.), at paragraphs 7 to 10. Examples may include opinions as to speed, age, size, normal business practices. Exception: Expert Opinions.

(9) OBJECTION: PRIVILEGE (LITIGATION)

A document or communication need not be produced if: (i) it was created for the dominant purpose of use in existing or anticipated litigation; (ii) it was intended to be kept confidential; (iii) the privilege has not been waived: (Blank v. Canada (Department of Justice), 2006 CarswellNat 2704 (S.C.C.).

(10) OBJECTION: SPECULATIVE

A trial judge has discretion to rule questions that require a witness to guess or speculate need not be answered (R. v. Bouchard, 2013 CarswellOnt 4040 (Ont. C.A.), at paragraph 2; Chamberlin v. Canadian Physiotherapy Assn., 2015 CarswellBC 2036 (B.C. S.C.), at paragraph 39). A guess is not a fact.

If you require a Trial Lawyer for your Personal Injury or Wills & Estate Litigation matter, please do not hesitate to contact Vic S. Maan who has now completed six successful trials!