Plaintiffs sometimes attempt to rely on similar fact evidence to prove liability. Similar fact evidence is evidence of past misconduct of a defendant for the purpose of inferring that the defendant is liable for the incident in question.
Similar fact evidence was addressed in the recent decision of SecurityInChina International Corp. v. Bank of Montreal, 2019 ONSC 7183. Justice Mitchell noted that the admission of similar fact evidence requires the probative value of the evidence to outweigh the highly prejudicial effect of propensity reasoning which similar fact evidence invites.
Her Honour referred to the Supreme Court of Canada’s decision in R. v. Handy, 2002 SCC 56, wherein the following factors were outlined in determining whether to admit similar fact evidence:
- proximity in time of the similar acts;
- extent to which the other acts are similar in detail to the charged conduct;
- number of occurrences of the similar acts;
- circumstances surrounding or relating to the similar acts;
- any distinctive feature(s) unifying the incidents;
- intervening events;
- any other factor which would tend to support or rebut the underlying unity of the similar acts.
In the case in issue, the plaintiff sought production of documents to attempt to show that the defendant bank engaged in a pattern of behaviour of permitting unauthorized transfers of money.
Justice Mitchell denied the production request. The plaintiff failed to satisfy the onus that the documents were relevant.
At the discovery stage, the test outlined in R. v. Handy should not be applied too rigidly. However, Justice Mitchell indicated that a production motion requires evidence, as opposed to mere speculation, that potentially relevant undisclosed documents exist. She found the plaintiff’s request for the documents to be a “fishing expedition”.