Law Times

PAGE 8 NEWS/COMMENT March 21, 2011 • Law TiMes ing witnesses swear an oath or affi rm to tell the truth makes it more likely that they will actually do so. It's easy to be cynical and see the Does swearing an oath make a difference? A BY MICHAEL DEMCZUR For Law Times lmost everyone who has been engaged in the trial process has wondered at times if hav- whole procedure as just some antiquated notion from the past when there was a concern for our immortal souls. Outside of the possible penalties that may result from lying, one might think oaths have little value in the truth-seeking process. But the relatively new fi eld of behav- ioural economics may have an empir- ically based answer to the eff ectiveness of oaths. Behavourial economics looks at how people make choices. Unlike classic economics, which makes the as- sumption of rational behaviour by indi- viduals, the behavioural area constructs various experiments to test what aff ects people's choices. In a recent U.S. study, one set of ex- periments aimed to determine whether people would cheat if given a chance to do so. Two groups of undergraduates had fi ve minutes to solve some math problems. For each correct an- swer, they received a nominal amount of money. Individuals in one group had to report how many correct responses they had and then hand in their answer sheets. Members of the second group had instructions to shred their answer sheets and report the number of cor- rect answers. Th us, the second group had a chance to cheat. Th e result was that the group that Speaker's Corner how does it relate to oaths? Th ose running the experi- ment ran the same process again but with a diff erence. Th ey gave two had the chance to cheat had statistic- ally higher scores (33 per cent higher) than the group that didn't have the op- portunity to deceive. Members of the second group didn't cheat as much as they could but they did a little. Th is is similar to a witness on the stand who doesn't tell only lies during testimony in court. It's not an earth-shattering result, so groups a task to do as before. Th is time, however, both groups had a chance to cheat. Before doing the math problems, members of one of the two groups were asked to recall 10 books they had read in high school. Th e other group was asked to recall the Ten Commandments. Th e result was that the group asked to recall the 10 books from high school cheated while the group asked to recall the Ten Commandments did not. Th is was the case even though most of the students tasked with recalling the Ten Com- mandments couldn't remember more than a few of them. In yet one more experiment, instead of recalling the Ten Commandments, the students were asked to read a state- ment indicating that the experiment was subject to the honour code of the university before they did the math problems. Members of the other group were asked, as before, to recall 10 books they had read in high school before do- ing the problems. Th e result was that the students who read the statement didn't cheat. Th is was the case even though there was, in fact, no university honour code. Th us, it wasn't the religious ele- ment of the Ten Commandments but having an ethical standard in mind just before having the opportunity to cheat that made the diff erence. Th e researchers in this experiment concluded that "when we are removed from any benchmarks of ethical thought, we tend to stray into dishonesty. But if we are reminded of morality at the mo- ment we are tempted, then we are much more likely to be honest." Th erefore, it would seem that the requirement of swearing or affi rming to tell the truth is a way of reminding those who testify of an ethical obliga- tion. As a result, it makes it more likely that they will in fact tell the truth. Michael Demczur is an assistant Crown attorney in York Region. Liu shows judges applying new Rules to discoverability Despite concerns for slow pace of change, 2 suits thrown out on summary judgment BY JULIUS MELNITZER For Law Times Court of Appeal demonstrated in its recent judgment in Liu v. Silver, the new Rules of Civil Procedure have altered the playing fi eld. Th ere are two primary reasons why raising discover- D ability in response to a limitation pleading virtually as- sured the plaintiff s of a clear path to trial. Th e fi rst is simple. Determining when plaintiff s dis- covered their cause of action is, of necessity, a factual in- quiry. Facts, especially when lawyers are involved, rarely have the clarity of pure water. Combinations of facts in themselves hardly ever lead to an indisputable inference or at least to one so compelling that judges are comfort- able depriving plaintiff s of their right to a full trial. Th e second reason is procedural. Before Ontario enacted its new Rules, judges had limited powers to evaluate evidence on summary judgment hearings. In- deed, in its 1998 decision in Aguonie v. Galion Solid Waste Material Inc., the Court of Appeal expressly de- cided that discoverability wasn't appropriate for reso- lution on a motion for summary judgment. But the new Rules changed all of that. Th ey allow motion court judges to weigh evidence, draw infer- ences from it, and evaluate credibility. "Courts will no longer blindly allow plaintiff s to argue discoverability as a tactical strategy to avoid iscoverability has long been the bane of de- fendants who seek summary judgment based on limitation defences. But as the Ontario summary judgment," says Lindsay Lorimer of Mc- Millan LLP. Liu arose when the plaintiff agreed to what was sup- posed to be minor out-patient surgery. Complications during surgery, however, led to a more intrusive proce- dure resulting in an 18-day hospital stay. About four months after the two-year statutory limitation period had lapsed, the plaintiff sued for $2.6 million for medical malpractice. Th e defendants, represented by Christine Lonsdale and Erica Richler of McCarthy Tétrault LLP, moved for dismissal. Li Liu maintained, however, that she didn't have suf- fi cient knowledge of the facts to assert a claim until she had obtained an independent opinion from a medical expert. Th e upshot, she argued, was that she didn't dis- cover her cause of action until she saw the report and therefore had sued within the limitation period. Ontario Superior Court Justice Beth Allen, the mo- tions judge, decided the new Rules warranted revisit- ing the law on the propriety of addressing discover- ability on a motion for summary judgment. Relying on her expanded powers, Allen then em- barked on a minute examination of the evidence. Ul- timately, she concluded that Liu had suffi cient mate- rial facts on which to base a claim upon her discharge from the hospital. As the limitation period started to run from that point, Liu's suit wasn't within it. Liu appealed but to no avail. In a short endorsement, the court ruled Allen's fi ndings "were amply supported by the plaintiff 's own evidence" and that the judge had made no error in deciding that the limitation period Recruiting? Post your position on GREAT RATES. GREAT REACH. GREAT RESULTS. Contact Sandy Shutt at sandra.shutt@thomsonreuters.com for details. www.lawtimesnews.com JobsInLaw 1/4 pg 5X.pdf 1 2/15/11 4:18:54 PM had begun to run upon Liu's discharge. "Th e Court of Appeal said as little as they could say to get to the result they wanted to get to, which was uphold- ing the motions judge," Lonsdale says. "But the ruling certainly upholds the existence of a broader scope for sum- mary judgment even where discoverability is at issue." Lonsdale cautions, however, that the facts in Liu were "very strong" in the defendants' favour. "Th is was a case built around admissions obtained on examinations for discovery and did not require in- ferential reasoning from the motions judge," she tells Law Times. "At the appeal hearing, the judges asked a lot of questions about the factual circumstances and were careful to ensure that there was nothing in dis- pute that required a trial." In time, Lonsdale adds, the Court of Appeal will have to deal with cases in which judges' decisions de- pend on facts that aren't as strong and that require the drawing of inferences. "It's too early to say what's going to happen when inferences are involved," she says. "But I do hope that the court will continue to breathe life into the sum- mary judgment rule because although there are many matters that have to go to trial, many don't." However that may be, Liu has already made its mark on motions judges. In January, Ontario Superior Court Justice Albert Roy cited Liu in Leclair v. McLellan, a case in which he dismissed an action as statute-barred after examining the evidence and concluding that the plaintiff 's discoverabil- ity pleading didn't raise a genuine issue for trial.

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