* Update: On May 30th, 2024, the trial judge’s decision was upheld (Legault v. TD General Insurance Company, 2024 ONCA 439)
In this recent decision, the court grappled with the problem that can arise when a witness expects to be paid for the time and effort put in to review documents and testify. It is clearly inappropriate to pay someone for their testimony: it is an abuse of process.
But occasionally the circumstances warrant a payment. The most common example is when dealing with former employees, or agents, that were key figures in the underlying cause of action. Getting them to cooperate many years later after they have moved on can be a big challenge for the party who needs their help. A balance is required. On the one hand witnesses shouldn’t be paid, but on the other hand it is unrealistic to expect a former employee or past agent to divest themselves of days of effort reviewing historical documents and testifying, for no compensation at all: that is an unrealistic burden.
The court held that these types of witnesses, even though lay witnesses (ie: they are not independent “experts”), are nonetheless professional lay witnesses, and can be paid for the time they incur to digest historical records, provided the party paying can demonstrate that:
- the payment was necessary (ie: without it, the party would have been prejudiced, or the trial would have been less streamlined, etc);
- the amount paid was reasonable for, and commensurate with, the work that was undertaken by the witness; and
- the opposing party was advised that the witness was going to be paid (ideally well before the pre-trial);
In short, payments to a witness for preparation must be warranted in all the circumstances because it is the exception rather than the norm. The court must be convinced that the payments were not made to “buy” favourable evidence, which would be an abuse of process.
Legault v. TD General Insurance Company, 2022 ONSC 3367
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3367/2022onsc3367.html