TAMMY JEAN BASKIN, Applicant v. STÉPHANIE DAPHNE CARRIER,, 2022 NBKB 246

Baskin v. Carrier - 2022 NBKB 246 CM-17-2021 COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF CAMPBELLTON BETWEEN: TAMMY JEAN BASKIN, Applicant -and- STÉPHANIE DAPHNE CARRIER, Respondent-moving party Subject: Striking of affidavit evidence and the principled exception to hearsay BEFORE: The Honourable Mr. Justice Larry Landry AT: Campbellton, New Brunswick DATE OF MOTION: November 21, 2022 DATE OF DECISION (orally): December 9, 2022 APPEARANCES: Tammy Jean Baskin, per se Steve McNair for the respondent and moving party, Stéphanie Carrier DECISION Landry, L. (Orally):

[ 1 ] Tammy Baskin has filed an application to have this Court declare that she has a right of way over Stéphanie Carrier’s land in Charlo and determine the rights included with the alleged right of way. [ 2 ] Stéphanie Carrier filed a motion to strike all or part of the affidavits filed by Ms. Baskin in support of her application. She argues that the affidavits contain mostly hearsay evidence coming from the applicant’s deceased mother as well as expert evidence and alleged facts covered by a settlement privilege, amongst many complaints. The lands involved [ 3 ] Although the purpose of this motion is not to determine any rights accompanying Tammy Baskin’s property, a

summary of the situation is necessary. The property and the house where she lives has been in her family since before she was born. It is landlocked or enclaved in a larger piece of land now owned by Stéphanie Carrier, who bought it in 2005. After Tammy Baskin moved into the property in 2020 and acquired it last year, issues have arisen between her and Ms. Carrier as to what rights Ms. Baskin has over Ms. Carrier’s land. [ 4 ] The width and scope of the alleged right of way are at stake as well as Ms. Baskin’s right to take water from a well located on the land.

She also claims that an implied easement of necessity should be confirmed, allowing NB Power to install and supply adequate power connections. Ms. Baskin states that she went through a first winter without electricity and her second winter in the house is now starting. She did install solar panels that provide some power, but not enough to cover all regular needs coming with living in a house, in the winter, in Northern New Brunswick. [ 5 ] Stéphanie Carrier not only owns the land neighboring the Baskin property, but she also lives there.

It is to be noted that Mildred Baskin moved out of the family home in the fall of 2011. NB Power removed the electrical wires shortly after. The house has been vacant from 2011 to 2020, when her daughter Tammy Baskin moved in. Evidence from the deceased mother [ 6 ] Affidavits from Tammy Baskin and three siblings were filed in support of the application. Many parts of those affidavits contain alleged facts that their mother, Mildred Baskin, would have told them over the years, until she passed away, on October 10, 2013. [ 7 ] The respondent wants this evidence to be struck from the affidavits as it is hearsay.

Hearsay is not admissible in affidavits used on applications, unless it is in respect to facts which are not contentious. 1 In fact, generally speaking, hearsay evidence is presumptively inadmissible, unless it falls under specific exceptions. In this case, Tammy Baskin relies on what is called the “principled hearsay exception” and wants her mother’s statements to remain in the affidavits. She gave the Court a thorough

article authored by Professor David Paciocco, as he then was: “ The Principled Use of Hearsay in Civil Cases: A Technical Guide to Avoiding Technicality ”. 2 Mr. Paciocco is now a justice of the Ontario Court of Appeal. [ 8 ] To have this Court admit her mother’s statement into evidence, Ms. Baskin carries the burden of proving, on a balance of probabilities, two requirements: necessity and reliance. 3 If she meets this burden, it then falls into the Court’s discretion to admit or exclude the evidence. 4 [ 9 ] The necessity requirement is admitted by Stéphanie Carrier.

Because of the death of Mildred Baskin, the only way to put her evidence before the court is through statements given while she was living. [ 10 ] At the next step, I must assess the evidence’s threshold reliability, as per the Supreme Court decision in R. v. Bradshaw : ____________________________________________ 1 Rule 39.01(5) of the Rules of Court of New Brunswick . 2 (2008) 87:2 The Canadian Bar Review 277, 2009 CanLIIDocs 138 . 3 R. v. Bradshaw , 2017 SCC 35 , at paragraph 23 .

4 Ibid ., at paragraph 24. 26. (…) Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact. In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them.

The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. 5 (notes omitted) [ 11 ] Threshold reliability does not mean that the evidence will be accepted as is, nor that it will be believed. We are at a stage where it must be determined if the statements attributed to the deceased will be admitted as part of the evidence. If so, the Court must still weigh their probative value and decide if it will influence the decision.

This is then called ultimate reliability. [ 12 ] Threshold reliability can either be procedural or substantive. Procedural reliability is not relevant in this matter. This could be the case when, for instance, a statement is recorded and made under oath.

Here, there is no basis for procedural reliability. [ 13 ] To show substantive reliability, one must demonstrate that the hearsay is inherently trustworthy: Substantive reliability is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken”; “under such ____________________________________________ 5 R. v.

Bradshaw , ibid ., paragraph 26 . circumstances that even a sceptical caution would look upon it as trustworthy”; when the statement is so reliable that it is “unlikely to change under cross-examination”; when “there is no real concern about whether the statement is true or not because of the circumstances in which it came about”; when the only likely explanation is that the statement is true. 6 (notes omitted) [ 14 ] I will now quote just parts of a few of the contested paragraphs of the applicant’s affidavit dated December 17, 2021, to show what type of evidence we are dealing with: 5.

My mother, Mildred Baskin, told me, and I verily believe, that on or around the year 1952, her and my father moved into the property, which at the time was the old Jamieson General Store (…) 6. During that time, my mother told me, and I verily believe, that her and my father, Henry Baskin, entered into a verbal agreement with Hazel Jamieson (…) 26. On or around 1988 or 1989, my mother told me, and I verily believe, that a well was drilled on the neighbouring side of the Baskin’s land (in front of the house) because ours went dry. (…) [ 15 ] There are no signs of reliability.

Most of the time, we don’t know when the words were said. It was often in a context where it was to support the applicant’s allegations as to the extended rights of the Baskin family from the day her parents acquired the property. It is self-serving evidence from a deceased member of the family, who, after Stéphanie Carrier moved next door, had issues with her as well. ____________________________________________ 6 R. v. Bradshaw , ibid ., paragraph 31 .

[16] Maybe this is all the truth, but there is no way to test it. There is no corroborating evidence. It appears from what is beingsaid through the hearsay evidence of Mildred Baskin that there were disagreements from the start with the person who sold them theproperty. Much of what was allegedly said over the years seems to put the blame on others or confirm the Baskins’ alleged rights overthe adjoining land, but no other evidence is there to show that the Baskins were right. The threshold reliability test is not met.

There is areal danger of putting that hearsay into evidence without opportunity for the other party to cross-examine or otherwise at least try tocontradict those statements. [17] Hearsay evidence of the deceased mother of the applicant will then be removed from all affidavits filed in support of theapplication. [18] In fact, in her closing remarks, Ms. Baskin agreed that the affidavit of her sister Debbra V. Cameron could be struck as itis all hearsay. Expert evidence should be out [19] Tammy Baskin hired a surveyor to draw a plan of her property and the alleged right of way.

She attached the plan to heraffidavit. Of course, this plan would constitute expert opinion evidence. There are rules to put opinion evidence from an expert beforethe court. None were complied with. [20] This evidence goes directly to the issue to be decided by the court and it is not agreed upon. That plan cannot be used at the hearing of this application.7 If the rules are followed for a proper admission of the plan, the court will deal with it at that time. Settlement privilege [21] In her affidavit, the applicant also includes attempts made to settle this matter out of court.

The respondent replies thatthere is a privilege on settlement talks and that nothing should be put in an affidavit to bring those attempts, successful or not, intoevidence. [22] I agree with Stéphanie Carrier. Settlement attempts must be encouraged.

If parties can’t participate in settlement talkswithout the fear of seeing them on the court record, this would dissuade a lot of negotiations and would not promote other ways to settleprivate matters. [23] There are exceptions to that rule, but it is on the party trying to use that evidence to show that an exception in fact appliesand is warranted in the circumstances. It is not the case here. The parts of the affidavit of Tammy Baskin related to settlement attemptswill be struck. ____________________________________________ 7 Bouctouche Micmac First Nation et al. v.

New Brunswick (Minister of Environment) et al., . [24] Now, I will confirm which affidavit, paragraphs or parts thereof will be struck from the record. I may not address eachparagraph mentioned by the respondent if I leave them as part of the record for obvious reasons. For instance, I was asked to strikeparagraph 4 of the applicant’s affidavit, where she states that the property was in the family since even before she was born. Her brotherBenjamin William Baskin is seven years older and confirms this fact in his affidavit.

I don’t believe it is seriously contested. (Edited forpurposes of publication: in open court, all paragraphs, or parts thereof, affected by this decision were addressed one by one and reasonsfor being struck were given: hearsay, expert evidence, settlement privilege, speculation, legal conclusion.) [25] I will leave the words “right of way” in the affidavits, but with the consent of the applicant, it is understood that this willhave no legal consequences and that it is her way of identifying what was formerly known as Jamieson Lane.

The scope and width of thelane or actual right of way will be an issue that the court will have to deal with later and so will be any rights that may come with the so-called right of way.

[ 26 ] I also left some parts which may possibly be hearsay, but it can be clarified through cross-examination and dealt with at the hearing of the application. [ 27 ] As well as a result of paragraphs being struck, some exhibits of the applicant’s affidavit are also removed from the record. [ 28 ] Motion granted.