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Evidence - Collateral Fact Rule. Kolapully v. Myles
In Kolapully v. Myles (Ont CA, 2024) the Ontario Court of Appeal largely dismissed an appeal of MVA damages.
Here the court considered the 'collateral fact rule' - as it relates to both credibility and reliability - in a sort of new, 'principled' collateral fact rule:[37] Having concluded that the attendant care forms were not substantively relevant to a fact in issue, the next question is whether they were admissible for the purpose of attacking Ms. Kolapully’s credibility.
[38] According to Justice Paciocco and his co-authors, there is an unresolved debate in the law between the view that credibility and reliability are not collateral where they matter in a case, on the one hand, and on the other hand, that credibility and reliability are always only collateral.[4] The Paciocco text takes the position that the “prevailing view is that credibility and reliability are collateral”, citing R. v. Krause (1986), 1986 CanLII 39 (SCC), 54 C.R. (3d) 294 (S.C.C.), at p. 301, per McIntyre J.: a matter is collateral where it is “not determinative of an issue arising in the pleadings or indictment or not relevant to the matters which must be proved for the determination of the case.”
[39] Previous versions of the Paciocco text advocated for a modification of the collateral facts rule “so that it reflects the principled approach that has come to be accepted in almost all areas of the law of evidence: if the contradiction is probative enough to outweigh the prejudice it may cause, admit it.”[5] The text cited this court’s decision in R. v. F.(C). 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 58
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