Sandhu (Litigation guardian of) v. Wellington Place Apartments (2008), ONCA 215 (C.A.) [Sandhu]

Sandhu (Litigation guardian of) v. Wellington Place Apartments (2008), ONCA 215 (C.A.) [Sandhu]

In Sandhu, the court evaluated the probative value and the prejudicial effect of non-demonstrative evidence.  The decision was an Ontario incarnation of Anderson v. Maple Ridge (District), (1993), 10 C.P.C. (3d) 258 (B.C.C.A) [Anderson].  The court considered whether evidence of subsequent remedial measures should be excluded. 

The plaintiff was a little boy who fell out the window of an apartment building.   The window was not fitted with a functional screen or child safety latches.   Shortly following the accident, the defendant replaced the screen and installed safety latches.   The defendant took the position that evidence of subsequent remedial repairs was unduly prejudicial and should have been excluded.  The evidence was admitted.  The defendant appealed the decision.

On appeal the court considered the probative value and the prejudicial effect of the evidence.  First, the court reviewed the probative value of the evidence.  The court found that evidence of subsequent remedial measures was probative in showing that the defendant’s inspection of the building prior to the accident failed to meet a reasonable standard expected of an occupier.

The court then turned to the prejudicial effect of the evidence.  At paragraph 58, it echoed the prejudicial effects considered in Anderson, supra. The jury could perceive the evidence of subsequent repairs as tantamount to an admission of negligence.

At paragraph 60, the court defined the relationship between probative value and prejudicial effect as follows:

 The prejudicial effect … includes considerations such as whether the evidence will unduly lengthen the trial or may be misused by the jury.  In considering the balance between probative value and prejudicial effect, the trial judge can also take into account whether limiting instructions to the jury can mitigate any prejudice.

 

The court concluded that although there is a risk that a jury would misuse the evidence, a jury warning was sufficient to mitigate this prejudicial effect.  Consequentially, the evidence was admitted.

The court did not offer a framework in which to balance the probative value and prejudicial effect of the evidence.    As such, the case is only valuable as an example of when a civil court will not exclude prejudicial evidence.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

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