As an action movie junky, I tend to be drawn towards movies that excite my senses but not my brain. However, when recently watching the movie Gladiator, starring Russell Crowe, I realized that the legal issues driving the plot of this movie are issues that I confront quite frequently in my practice. 

The movie opens with the fictional Emperor of Rome, Marcus Aurelius, dying. Notwithstanding that this political office traditionally passes from father to son, shortly before his death and in a very private and touching cinematic moment, the Emperor advises Crowe’s character, Maximus, of his choice that Maximus be appointed the Emperor of Rome until such time that Maximus determines that the representative of the people, the Senate, is ready to rule Rome. Unfortunately, the Emperor is killed before he can make his testamentary intentions public. Without a witness to this succession plan, the Emperor’s immoral son, Commodus (played by Joaquin Phoenix), is able to rule Rome and drive the plot of the movie.

In my practise, I find that discrete gifts given by a deceased shortly before death can be the catalyst for animosity, anger and distrust between beneficiaries, rightly or wrongly. The recipient of that gift sees nothing wrong with the gift if the deceased had capacity and there was nothing sinister about the circumstances. In contrast, the other beneficiaries view the recipient’s conduct as secretive, underhanded and manipulative. 

Unfortunately for the recipient of that gift, proving that the gift was made voluntarily can be harder to survive than the Coliseum itself. Section 13 of Ontario’s Evidence Act contradicts the general rule of evidence that one person’s evidence, if determined to be reliable by the court, is sufficient to form the basis for any judgment granted. Section 13 specifically provides that in an action against the heirs, next of kin, executors, administrators and assigns of a deceased person, a party cannot obtain judgment on his own evidence in respect of a matter occurring before the death of the deceased person unless the evidence is corroborated by some other material evidence.

While the court has justified this unusual rule of evidence by explaining that it addresses the “obvious disadvantage faced by the dead” who cannot tell their side of the story [Burns Estate v. Mellon (2000) 48 O.R. (3d) 641], this rule of evidence can just as easily perpetuate an injustice as it can avoid one. Most rules of evidence are not absolute, and leave some residual discretion in the court to determine what is in the interest of justice. While section 13 precludes Maximus from proving the Emperor’s dying wish, perhaps it is time to consider importing some flexibility in the rule.

Unfortunately for Maximus, it doesn’t make for good theatre.

Jonathon Kappy