LORENSON v LORENSON

At Trial, the Defendant challenged the authenticity of certain records relating to the Plaintiff’s income (the “Impugned Documents”). The Impugned Documents were produced and disclosed by the Plaintiff in response to Undertakings given in pre-trial cross-examination on an Affidavit.

Justice Lew confirmed that allegations of falsified documents are determined on a balance of probabilities and the burden rests with the party alleging falsification.

The Court found that the Rules did not provide an analytical roadmap for assessing the question of authenticity raised by the Defendant. Rule 5.15 sets out a process for challenging the authenticity of documents produced in an Affidavit of Records, including serving notice. However, Justice Lew found that this process did not apply since the Impugned Documents were produced in response to Undertakings, not in an Affidavit of Records.

Justice Lew also disagreed with the Plaintiff’s reliance on Rule 13.6(3), which requires particulars of a pleading of fraud or misrepresentation for matters which “may take another party by surprise”. The Court found that Rule 13.6(3) did not apply since the Defendant’s position related to falsification of evidence, not a cause of action in fraud.

In the absence of a governing Rule, the Court assessed procedural fairness and the merits of the Defendant’s falsification allegation. Justice Lew emphasized that the Plaintiff has been deprived of an opportunity to take pre-trial steps to prepare a response to the Defendant’s authenticity challenge since no advance notice of the challenge had been given. Further, the Defendant had opportunities to attempt to verify authenticity himself but did not do so.

On the merits, the Court held that the Defendant failed to meet the burden of proof. Alleged irregularities in the Impugned Documentation were capable of multiple explanations, and determining their cause would likely have required expert evidence or evidence from the author, neither of which were provided. The Court also declined to draw an adverse inference from any alleged deficiencies in the Plaintiff’s responses to Undertakings. Justice Lew found that the Plaintiff reasonably concluded she had provided sufficient documentation, particularly since she was not put on notice that the Defendant considered the disclosure incomplete. Ultimately, the Court rejected the Defendant’s allegations of falsification.