Mid term Review

Question #1 Survivorship Act, s.1 1 If 2 or more persons die at the same time or in circumstances rendering it uncertain which of them survived the other or others, the deaths are, subject to sections 2 and 3, presumed to have occurred in the order of seniority, and accordingly the younger is deemed to have survived the older.

Question #1 Please classify this presumption, including whether it is a presumption of law or fact, whether it is rebuttable or conclusive. If rebuttable, on what standard? Does it require proof of a basic fact? Please describe the operation of this presumption, how does it work, and who makes the decisions?

Question #2 An accused is arrested for first degree murder. Death occurred inside a single room in an office building. Only the accused and the deceased were inside at the approximate time of death. The accused was seen by a single witness leaving the room, and after his departure, the witness entered the room and found the dead body.

Question #2 The accused was arrested as he left the building. The accused, at the time of arrest, was carrying one newspaper article and one book. The newspaper article was about an employee killing his boss, and literally getting away with it. Certain portions were highlighted. It turns out that the accused was an employee of the deceased. The two had been bitterly arguing at work the week before. The accused, at the time, had sworn he would take his revenge.

Question #2 The witness who saw the accused leave the building is the legally married spouse of the accused. The other document found in the accused’s possession was a book praising 9/11 and strongly supporting the Al Quaeda (sp?) cause.

Question #2 At trial, the Crown seeks admission of a number of s containing discussions between the accused and the deceased. There are two addresses therein, what the Crown believes to be the addresses of the employee and boss. They are the type of addresses that do not contain the actual names of the user. The Crown says that the content of the s is what is important – ie. they show areas of dispute between the two and a growing level of frustration by the accused.

Question #2 (a) Discuss the admissibility of the newspaper article on “how to kill one’s boss – and get away with it.” Is it admissible? Does it require authentication? By whom? If admissible, on what fact-in-issue? Are the contents of the article admissible for their truth, or just the fact of possession?

Question #2 (b) Discuss the admissibility of the 9/11 book. Admissible? For what purpose? On what basis could it be excluded? (c) Will this case for the Crown, as described above, survive a non-suit application/directed verdict? When is the application made? What standard is to be used? What would the outcome be?

Question #2 (d) Is the spouse of the accused compellable here? If compellable, what if any privilege can be asserted on the stand? (e) How do the s get in? Who authenticates them? Are they in for the proof of the truth of their contents?

Question #3 The fact in issue in a civil trial concerns the loss of certain Gretzky memorabilia by a storage unit owner. In other words, the owner of the storage unit had contracted to keep the Plaintiff’s contents safe in return for a fee. When the Plaintiff went to obtain his contents, they were gone. The Defendant does not dispute that they are missing, but certainly disagrees with their proposed value.

Question #3 Counsel for the Plaintiff did not bring any viva voce valuation type evidence, but did bring letter from a valuator. The letter reads: “To whom it may concern. I was contacted by a solicitor to come to a valuation of certain Gretzky memorabilia lost or stolen from a storage unit. I have been evaluating such items for twenty years, their value is certainly $1, per signed item.”

Question #3 The letter from the valuator is among a number of original receipts for the purchased Gretzky items, which turn out to be purchased at the valuator’s store. The proponent proposes that these are self- authenticating documents admissible for the proof of their truth. They are “ordinary course business records” in the truest sense. Do you agree? Discuss the admissibility of these “records.” Does the ordinary course business rule apply here? What else could the proponent try with respect to the receipts themselves?

Question #3 The proponent says at the end of both cases: “Well clearly the only issue left for determination is the value of the loss. I would ask that this Court take judicial notice of the value of Gretzky memorabilia in general, and that an original signed item can generally add $500 to $700 to the value of the item itself.”

Question #3 Is this a proper case for judicial notice? Talk about the timing of the application as well.