Adverse Witness

When a matrimonial matter proceeds to trial, each lawyer representing the parties involved in the dispute, is tasked with gathering, presenting, and proving the evidence.

There are two different types of evidence that lawyers bring forth at trial: documentary and oral.

A lawyer attempting to convey oral evidence at trial will call witnesses with knowledge of the dispute. Opposing counsel may then cross-examine those “adverse witnesses.” The question is, who is considered an “adverse” witness? Is it merely those witnesses summoned by the opposing party? Do “adverse” witnesses need to be hostile to the opposing party or simply unfavorable?

In the case of Reference Re R. v. Coffin, Justice Kellock took an outdated position and one inconsistent with today’s definition. Justice Kellock defined an adverse witness to be hostile; specifically, “not giving the evidence fairly and with a desire to tell the truth because of a hostile animus towards the prosecution.”

Contrary to the former case, the Ontario Court of Appeal held in Wawanesa Mutual Insurance Co. v. Hanes, that a witness is adverse by simply being unfavorable. This has led Ontario courts to further expand on the scope of an “adverse” witness. Currently, an adverse witness encompasses a scenario where the witness has assumed a counter-position to the party calling the witness.

To learn more about adverse witnesses as well as the services provided by Krol & Krol, call 905.707.3370 today.