EVIDENCE Civil trial

● Plaintiff presents evidence, usually by

having witness testify. Known as “direct
CHAPTER 1: The Basic Concepts and
examination” or “examination-in-chief”
Fundamental Principles
● Defence can then “cross-examine” the
witnesses
Evidence Law
● Plaintiff presents all their evidence
● The law of evidence controls the
● Defence may ask for non-suit
presentation of facts before the court
● Defence presents witnesses
○ What can be admitted in court?
● Plaintiff and defence each make arguments
○ How can admissible facts be
to trier of fact (judge or jury)
placed before the court?
● Trier of fact considers evidence and
submissions and makes decision
The Litigation Process – Criminal
Negligence Example
Initiating the process
● You are visiting your friend Noah’s house
● A specific court document initiates the
on a cold, winter’s day. As you walk up the
process
porch steps, you slip and fall on some ice.
○ Laying an information in criminal
You sue for negligence, claiming Noah
litigation
didn’t clear the ice. Noah’s defence
includes a claim that you were contributory
Pre-trial evidence-sharing
negligence for wearing improper footwear.
● Crown provides “disclosure” in criminal
process
Role of the Judge/Jury
● Trier of Law
Criminal trial
○ Person in a trial who controls the
● Crown presents evidence, usually by
trial process, determines the
having witness testify.Known as “direct
admissibility of evidence, and
examination” or “examination-in-chief”
instructs the trier of fact on the
● Defence can then “cross-examine” the
applicable law
witnesses
○ In a jury trial, the judge
● Crown presents all their evidence
● Defence may ask for directed verdict
● Trier of Fact
● Defence presents witnesses
○ Person in a trial who assesses the
● Crown and defence each make arguments
evidence and renders a verdict
to trier of fact (judge or jury)
○ In a jury trial, the jury
● Trier of fact considers evidence and
○ Otherwise, the judge
submissions and makes decision
Charge to the Jury
The Litigation Process – Civil
● Judge’s instructions to the jury before the
jury begins deliberations
Initiating the process
● Statement of Claim in Small Claims Court
● Includes:
○ The applicable law
Pre-trial evidence-sharing
○ Standard of proof
● Parties are required to share evidence
○ Available defences
before the start of the trial to expedite the
legal process and promote settlement
○ “Discovery” in civil litigation

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“One of the reasons [the jury system] has ● Preserve the integrity of the administration
functioned so very well is that trial judges have been of justice
able to direct the minds of jurors to the essential ● Sometimes these goals conflict
elements of the offence and to those defences
which are applicable.” Example: Hearsay
- R v. Osolin ● Where a witness testifies as to what
someone else said
The Litigation Process ● Why a rule against hearsay?
○ Witnesses take an oath
Adversarial System ○ Witnesses can be cross-examined
● Judicial process in which parties present ○ Witnesses can be prosecuted for
evidence before an impartial decision- perjury
maker, who then makes a decision in the ● Numerous exceptions based on necessity:
case dying declarations, spontaneous
○ Contrast to inquisitorial system, in declarations, etc.
which the fact-finder investigates
○ Judges do not take an active part Towards a Principled Approach
in the search for truth
Case Law:
Case Law on Impartiality ● Ares v Venner (1970) - business records
Source: R v. Musselman (2004), 25 CR (6th) 295 ● Slavutych v Baker (1976) - privilege
(Ont. SCJ). ● R v Vetrovec (1982) - corroboration
● An Ontario Provincial Court judge was ● R v Khan (1990) - statements by children,
removed from case, as he could not be spontaneous declaration
objective
○ Court of Appeal noted that the While in many cases, a principled approach
judge had “become an advocate in permitted for greater admissibility, it resulted in
his own cause in the forum greater scrutiny of evidence in some areas.
reserved for disputes he is to ● E.g. expert evidence – truly necessary and
decide impartially in a process of of sufficient reliability
calm and detached deliberation.”
Charter rights and values
Law of Evidence ● The Charter protects an accused’s rights to
● Until 1970s, the common law contained a fair trial
numerous rigid rules and exceptions for ○ Accused’s right to make full
different circumstances answer and defence
● Supreme Court in 1970s started moving ○ Protection against self-
towards a more flexible approach incrimination
Societal Interests
Goals of the Law of Evidence ● Canada Evidence Act makes it easier for
children to testify
Values ● Criminal Code changes to protect
● The search for truth – reliable vs. unreliable complainants in cases involving sexual
evidence/witnesses offences
● A fair trial for an accused – probative value ● Protections against wrongful convictions
vs. prejudice ○ Expert evidence
● Efficiency of the trial process ○ Jailhouse informants
● Protect other relationships/outside ○ Eyewitness evidence
concerns ● Flexibility has replaced efficiency

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 ● Dynamical model based on:
○ Competing goals of the law of
evidence
○ Competing societal interests
○ Competing Charter rights and
values
● Voir dires to determine admissibility
○ A mini-trial, or trial within a trial,
that is designed to determine the
admissibility of evidence in the
absence of the trier of fact
○ Jury excluded from hearing
information until judge determines
whether information is admissible
as evidence
○ In judge-alone trials, judges must
forget inadmissible evidence and
not consider it in their decisions
CHAPTER 2: Types of Evidence and Conditions
for the Receipt of Evidence
Types of Evidence
● Sworn statements
○ Sworn testimony of a witness in
court
○ Pre–trial sworn statements (e.g.
see: Rule 18.02 of the Rules of the
Small Claims Court)
○ Discovery statements
○ Affidavits
● Unsworn statements
○ Exceptions to hearsay (e.g.
business records)
● Real Evidence
○ Things
○ Any evidence where the court acts
as a witness
○ Must be authenticated
■ Photographs
■ Video recordings
■ Audio recordings
○ Taking a view
○ Appearance or Demeanour of a
Person
● Experiments and re-enactments
○ Outside of court - sworn statement
○ In court - sworn statement and
production of thing
● Documents
○ May be introduced to:
■ Prove its existence or that
it was in someone’s
possession (thing)
■ Prove its contents - in
some cases like an
unsworn statement
Conditions for Receipt of Evidence
Two basic requirements for evidence to be
received:
1. Admissible
● Relevant
● Not subject to exclusion
2. Not subject to judicial discretion to exclude
Admissibility
Relevance
● Fact that has “some tendency as a matter
of logic and human experience to make the
proposition of which it is advanced more
likely than the proposition would be in the
absence of that evidence” (R v White)
● Does Fact A make the existence or non-
existence of Fact B more probable than
without Fact A? (R v Watson)
○ If so, then Fact A is relevant to Fact
B
○ But, Fact B must be a material fact
in issue
● Negligence example – what evidence
meets test?
● Strict liability example: Your neighbour’s
wild tiger escaped into your yard. There are
emails establishing that your neighbour
purchased a cheap enclosure for the tiger
● Speeding example: Evidence of intention
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 Rules of Exclusion
● Hearsay
● Self-serving evidence to support the
credibility of a witness
● Character evidence
● Similar fact evidence
● Opinion evidence
● Privilege
Judicial Discretion
❖ Even where evidence is admissible (relevant
and not subject to a rule of exclusion), the trial
judge may use his or her discretion to exclude it.
● In criminal cases:
○ Unfair or unjust to the accused -
where the probative value is
outweighed by its prejudicial effect,
or where admitting evidence would
be to mislead the jury or render the
trial unfair
● In civil cases:
○ Where the prejudicial effect
outweighs its probative value
○ E.g. graphic photos of injury
Direct vs. Circumstantial Evidence
● Direct evidence: I saw it raining outside
● Circumstantial evidence: I saw someone
walk in wearing a raincoat and carrying an
umbrella, dropping wet
● In civil cases, circumstantial evidence is
treated like any other kind of evidence
● In criminal cases, Supreme Court rejected
the rule that “special instruction to jury”
necessary. Rather, judge should instruct on
reasonable doubt
Procedure for Admitting Evidence
● Evidence is usually presented to court
without objection or discussion of
admissibility
● If there is an objection, trial judge rules right
away
● Rulings on evidence can be appealed after
judgment
● In civil cases, generally no appeal on
evidence unless an objection was made
● In criminal cases, not as stringent a rule
Evidence in Small Claims Court
● Small claims court deals with civil cases
involving lower amounts of money
($35,000 or less)
○ Parties may have legal
representation, but parties often
represent themselves
● Judges are given more discretion regarding
the admissibility of certain evidence
○ See section 27 of the Courts of
Justice and section 18.02 of the
Rules of the Small Claims Court
Evidence in Administrative Tribunals
❖ Administrative tribunals:
Decision-making bodies, similar to courts,
that rule on regulatory disputes
○ Often referred to as quasi-judicial
bodies
○ Examples: Workers’
Compensation Appeal Board,
Landlord and Tenant Board
❖ Main purpose is fair and just determination in a
timely and cost-efficient manner
○ Administrative tribunals have
relaxed rules of evidence
■ See section 15 of the
Statutory Powers
Procedure Act
Evidence in Appellate Court
❖ An appeal court could consider:
● Errors of law
○ Court applied the wrong test
○ Standard of correctness
● Errors of fact
○ E.g. credibility of witness
○ Standard of palpable and
overriding error
❖ Appeals from an administrative decision use
the same standards of review unless a different
standard has been prescribed by statute.
❖ Judicial review of a tribunal decision presumes
a standard of review of reasonableness.
❖ Fresh evidence is rarely admitted in appeals,
especially if the opportunity to present such
evidence existed for the litigant at trial.
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CHAPTER 3: Evidential Burden and Burden of
Proof
“Burden of Proof”
● Evidential burden vs. Persuasive burden
Evidential burden
● Threshold test
● Party must adduce sufficient evidence of
the existence of non-existence of a fact or
of an issue on the record to be considered
by the trier of fact
● Judge doesn’t decide whether he/she
believes the evidence
● Question of law
● Avoids perverse verdicts, wrongful
convictions and unwarranted acquittals
Civil Case - Plaintiff’s burden
● Plaintiff presents her case
● Defendant makes a motion for non-suit
● Judge decides whether there is any
evidence, if left uncontradicted, to satisfy a
reasonable person
● Whether a reasonable trier of fact could
find in the plaintiff’s favour if he or she
believed the evidence given in the trial up
to that point
Civil Case - Defendant’s burden
● Similar burden to that of the plaintiff -
whether a properly
CHAPTER 4: Standards of Proof
Satisfying the evidential burden
Civil Case — Plaintiff’s burden
● Plaintiff presents her case
● Defendant makes a motion for non-suit
● Could a reasonable trier of fact, if he or she
believed the evidence given in the trial up
to that point, find i. the plaintiff’s favour?
Civil Case — Defendant’s burden
● Similar burden to that of the plaintiff —
whether a properly instructed trier of fact
could draw the desired inference from the
evidence adduced at that stage of the
proceedings
Criminal Case — Crown’s burden
● Is there any evidence upon which a
reasonable jury, properly instructed may
convict.
Criminal Case — Defendant’s burden
● Air of reality test: whether there is evidence
on the record upon which a properly
instructed jury acting reasonably could
acquit
Party has an obligation to prove or disprove a fact
or issue to the criminal or civil standard
● Criminal burden: “beyond reasonable
doubt”
● Civil burden: “on the basis of probabilities”
Begin with the presumption that the accused is
innocent.
The Crown must prove each element of the crime
beyond reasonable doubt.
What is a reasonable doubt?
● It is not imaginary or frivolous doubt
● Not based on sympathy or prejudice
● Probably guilty or likely guilty is not
sufficient
● There may be reasonable doubt even if
defendant is not credible
● instructed trier of fact could draw the
desired inference from the evidence
adduced at the stage of the proceedings
Criminal Case - Crown’s burden
● Is there any evidence upon which a
reasonable jury, properly instructed may
convict
Criminal Case - Defendant’s burden
● Air of reality test: whether there is evidence
on the record upon which a properly
instructed jury acting reasonably could
acquit
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Satisfying the evidential burden
1. Trier of fact can decide the issue
● Trier of fact may (not must) find the
accused guilty, plaintiff liable, that
a defence applies.
2. In some cases, as a result of statute,
discharge of evidentiary burden provides
that the tier of fact must make a
determination favourable to the party
satisfying the burden unless there is
evidence to the contrary
● E.g. Copyright Act compels the
tribunal of fact to find a person
registered as the owner of
copyright to be the owner, absent
evidence to the contrary
Failing to satisfy the evidential burden
E.g.
● Crown fails to satisfy the evidential burden
on an assault charge.
● Accused fails to satisfy the evidential
burden on an assault charge for the
defence of self-defence
● In a civil action for slip-and-fall, the
defendant pleads contributory negligence,
but fails to satisfy the evidential burden in
respect of that defence
Persuasive Burden
● Party has an obligation to prove or disprove
a fact or issue to the criminal or civil
standard
○ Criminal burden: “beyond a
reasonable doubt”
○ Civil burden: “on the balance of
probabilities”
Misleading Concepts
● “Shifting Burdens”
○ Negligence vs. contributory
negligence
● Tactical Burdens
○ Not an evidential or a legal burden
● Burdens expressed as presumptions
Burdens
● The party asserting the affirmative of an
issue usually must prove it
● This is a guide, and there are exceptions
● E.g.
○ Crown must prove an absence of
consent
○ Highway Traffic Act, s. 193(1) puts
onus of proof on the operator of the
vehicle, not the person suffering
damage
● Burden in regards to admissibility of
evidence
● The evidential burden usually coincides
with the persuasive burden
● In some cases, however, they do not
coexist
● E.g. Criminal Code.
○ S. 265(1)(a):
■ “A person commits an assault
when… without the consent of
another person, he applies force
intentionally to that other
person…”
○ S. 265(4):
■ “Where an accused alleges that he
believed that the complainant consented
to the conduct that is the subject-matter
of the charge, a judge, if satisfied that
there is sufficient evidence and that, if
believed by the jury, the evidence would
constitute a defence, shall instruct the
jury, when reviewing all the evidence
relating to the determination of the
honesty of the accused’s belief, to
consider the presence or absence of
reasonable grounds for that belief.”
CHAPTER 4: Presumptions
Presumptions
● Presumption without basic facts
● Presumption with basic facts
○ Presumption of fact
○ Conclusive presumption of law
(irrebuttable presumption)
○ Rebuttable presumption of law
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Presumptions without basic facts
● A legal conclusion must be drawn in the
absence of rebutting evidence
○ “Presumption of innocence”
Presumptions with basic facts
Presumption of fact
● A deduction that may logically and
reasonably be drawn from a fact or group
of facts found or otherwise established
● On proof of Fact A, trier of fact may infer
Fact B
● Logical inference that may be (but doesn’t
have to be) drawn
● Does not create a legal consequence upon
proof of the basic fact
● Does not change the burden or proof
● E.g.
○ R v Kowlyk - inference that
possessor of stolen property is
guilty of theft
○ S. 320.31 (1) of Criminal Code -
court may draw an inference for
failing to provide a breathalyzer
○ Shouldn’t be called
“presumption” -> “justifiable
inference”
Conclusive presumptions of law
● Rare and mostly come from statute
● Proof of Fact A means that Fact B is
conclusively deemed
● Person against whom the presumption is
made cannot rebut the presumption
● E.g.
○ Common law presumption that child
incapable of committing a criminal
offence (now codified in s. 13 of the
Criminal Code)
○ Repealed s. 198(2) of the Criminal
Code:
■ “For the purpose of
proceedings under this Part, a
place that is found to be
equipped with a slot machine
shall be conclusively presumed
to be a common gaming
house.”
○ Not really a “presumption” so much as
definition or rule of law
Rebuttable presumptions of law
● Rule of substantive law that prescribes a
particular legal consequence upon proof of
a particular fact
● Compels the trier of fact to assume the
existence (or non-existence) of the
presumed fact in the absence of evidence
to the contrary
● Legal shortcut
Rebuttable presumptions of law - Criminal
cases
● E.g. Criminal Code,
○ S. 320.14(1)
■ “Everyone commits an offence
who operated a conveyance while
the person’s ability to operate it is
impaired to any degree by alcohol
or a drug…”
○ S. 320.35
■ “...if it is proved that the accused
occupied the seat or position ordinarily
a occupied by a person who operates a
conveyance, the accused is presumed
to have been operating the
conveyance unless they establish that
they did not occupy that seat or
position for the purpose of setting the
conveyance in motion”
○ If the Crown proves the accused was in the
driver’s seat beyond a reasonable doubt,
presumption that accused was operating the
vehicle
○ Thus, the accused will have to rebut the
presumption by proving (on the balance of
probabilities) no intent to put the vehicle in
motion
● “Absent evidence to the contrary”
○ Imposes an evidentiary burden on the
accused, not a persuasive burden
○ E.g. Criminal Code, s. 348 re: breaking and
entering
■ “For the purposes of proceedings
under this section, evidence that an
accused
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 ● (a) broke and entered a place or
attempted to break and enter a
place is, in the absence of
evidence to the contrary, proof that
he broke and entered the place or
attempted to do so, as the case
may be, with intent to commit an
indictable offence therein…”
● Presumption may violate the presumption of
innocence under s. 11(d) of the Charter
● Presumption may be served under section 1 of the
Charter
Rebuttable presumptions of law - Civil cases
● Rebut presumption to a balance of probabilities
● In some cases., merely adduce some contrary
evidence
● In a few cases, presumption must be rebutted
beyond a reasonable doubt
● E.g. presumptions re: legitimacy, life and death,
order of death, etc….
CHAPTER 5: Standards of Proof
Satisfying the evidential burden
Civil Case – Plaintiff’s burden
● Plaintiff presents her case
● Defendant makes a motion for non-suit
● Could a reasonable trier of fact, if he or she
believed the evidence given in the trial up
to that point, find in the plaintiff’s favour?
Civil Case – Defendant’s burden
● Similar burden to that of the plaintiff -
whether a properly instructed trier of fact
could draw the desired inference from the
evidence adduced at that stage of the
proceedings
Criminal Case – Crown’s burden
● Is there any evidence upon which a
reasonable jury, properly instructed may
convict
Criminal Case – Defendant’s burden
● Air of reality test: whether there is evidence
on the record upon which a properly
instructed jury acting reasonably could
acquit
Satisfying the persuasive burden
● Party has an obligation to prove or disprove
a fact or issue to the criminal or civil
standard
● Criminal burden: “beyond a reasonable
doubt”
● Civil burden: “on the balance of
probabilities”
● Begin with the presumption that the
accused is innocent
● The Crown must prove each element of the
crime beyond a reasonable doubt
What is a reasonable doubt?
● It is not imaginary or frivolous doubt
● Not based on sympathy or prejudice
● Probably guilty or likely guilty is not
sufficient
● There may be reasonable doubt even if
defendant is not credible
CHAPTER 6: Hearsay
HEARSAY
What is hearsay?
● Written or oral statements, or
communicative conduct made by persons
otherwise than in testimony at the
proceeding in which it is offered, where the
statements or conduct are tendered as
proof of their truth or of their implicit
assertions
1. Out-of-court statements or conduct
2. Tendered as proof of their truth
● Hearsay is presumptively inadmissible
unless it falls within a traditional exception
or meets the criteria of necessity and
reliability under the “principled approach”
Is it Hearsay?
● Criminal case for theft against your client:
● Witness testifying: I heard yelling and
went to my window. I saw the defendant run
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 out of the store. He was wearing a red shirt
and blue shorts.
● Witness testifying: My husband heard
yelling and went to the window. He told me
he saw the defendant run out of the store.
He was wearing a red shirt and blue shorts.
Hearsay Dangers
Safeguards on witness testimony
● Oath or affirmation (in the past required
religious belief)
● Perjury for false testimony (s. 131 of the
Criminal Code)
● Right of cross-examination
Out-of-court Statements
Criminal case for theft under $5,000 against your
client:
Crown: Did you see anyone leaving the
store?
Witness: Yes
Crown: What were they wearing?
Witness: I can’t remember. But I did tell my
husband when he got home that day. I
asked him this morning what I told him.
Witness: What did you tell him?
Criminal case for theft under $5,000 against your
client:
Police officer testifying: I attended to
the scene, and a witness to the theft told
me that she saw the defendant leave the
store and run off.
Out-of-court Conduct
Criminal case for assault:
Police officer testifying: We visited the
victim at the hospital. He couldn’t speak
because of all the tubes. We showed him a
number of photos and asked who had
assaulted him. He pointed at a photo of the
defendant.
Tendered as Proof of Statement’s Truth
Scenario 1: Your client, Him, has been charged with
assault after he punched Dwight. According to Jim,
he acted in self-defence after Dwight threatened
him and his girlfriend, Pam.
You have called Michael to the stand, who testifies
as follows:
Michael: We were leaving work when I saw
Jim and Dwight start arguing. Dwight yelled
at Jim that he was going to “knock Jim’s
head off”.
The Crown objects, arguing that Michael’s
statement is hearsay.
Scenario 2: Your client was pulled by police and
charged with careless driving.
Police witness: I pulled the defendant
over because I received information from
someone who said the defendant was
“driving erratically” and who “thought the
defendant might be intoxicated.”
Determining Statement’s Purpose
● Consider the basis of the hearsay rule –
inability to cross-examine
○ Are there relevant, meaningful
questions that you might want to
ask the person who made the out-
of-court statement?
● What is the relevance of the fact that the
person made the out-of-court statement?
○ Does the truth of the statement
made out-of-court matter?
Impliedly Assertive Statements or Conduct
Chris is arrested for drug possession. The police
seize his cellphone. The phone rings and an officer
answers. The caller asks for Chris. Officer says that
he is now “running the show”. Caller requests an
ounce of weed. Police officer asks how much Chris
usually charges and the caller says $150. Police
officer agrees to deliver.
- R v Baldree, 2013 SCC 35.
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Exceptions to the Hearsay Rule
● Hearsay is presumptively inadmissible
● Traditionally, a number of exceptions were
developed based on a number of factors:
○ It was impossible or difficult to secure
other evidence
○ The author of the statement was not an
interest party in the sense the
statement was not in their favour
○ The statement was made before the
dispute in question arose
○ The author of the statement had a
peculiar means of knowledge not
possessed in ordinary cases
● Exceptions developed: admissions, dying
declarations, declarations against interest,
spontaneous declarations
The Principled Approach
Ares v Venner, [1970] SCR 608
● Nurse’s records permitted as evidence
● Necessity and reliability the basis for
exceptions to the hearsay rule
R v Khan, [1990] 2 SCR 531
● Young girl told her mother she was
assaulted by doctor
● Victim was not permitted to testify at trial
● Crown wanted mother to testify
● Supreme Court applied test of necessity
and reliability
Necessity
● Founded on society’s interest in getting at
the truth
● Relates to the relevance and availability of
evidence
● Declarant may be unavailable, or available
but refuses to testify
● Declarant’s testimony may add little
● Attendance at court would lengthen trial on
a point that could be readily accepted
through hearsay
● Insistence on calling evidence would result
in absurdity
● Flexible concept and does not require
absolute necessity
Reliability
● Relates to ensuring the integrity of the trial
process
● Was the statement made under
circumstances which substantially negate
the possibility that the declarant was
untruthful or mistaken?
● Factors to be considered:
○ Made under oath
○ Opportunity for cross-examination
○ Motive to lie
○ Spontaneity of the statements
○ Contemporaneity with the events set
out
○ Declarant’s demeanour and conduct
○ Relationship between the declarant
and the narrator of the statement
○ Possibility declarant was mistaken
○ Declarant’s state of mind
○ Contents of the statement
● At first, thinking was that
necessity/reliability was a residual
exception for hearsay that didn’t fit into
existing exceptions
● R v Starr, [2000] 2 SCR 144:
1. Hearsay is presumptively admissible
if it falls under an established
exception to the hearsay rule because
the exceptions have an inherent
reliability
2. A hearing may be held to determine
whether the hearsay exception
complies with the requirements of the
principled approach.
3. It may be possible for evidence that
would otherwise fit within a valid
exception to not meet the principled
approach. In such cases, the
evidence will be excluded.
4. If evidence does not fall within a
hearsay exception, it might still be
admitted if it meets the requirements
of necessity and reliability.
Hearsay Exceptions
Your client, Micheal, is suing Dwight after clipping
and falling on Dwight’s patio steps.
10
You call Michael to the stand:
Michael: As soon as I slipped and fell, Dwight came
rushing outside and helped me stand up. He
apologized profusely and said that he hadn’t had
time to put down salt or clear the ice because he
had been so busy with work.
Admissions
● Out-of-court assertions made by a party to
the proceedings are admissible as an
exception to the hearsay rule
● Illogical for declarant to suggest that he
can’t cross-examine himself.
● The person alleged to have made the
statement can always take the stand
● Admissions are admissible in both civil and
criminal cases
● Probative value outweighs prejudicial effect
Your client, Michael, works as a house renovator.
He is being sued by Pam for shoddy work to her
home.
Pam testifies:
Pam: I wrote Michael an email after the work was
complete outlining all the problems with his work.
Specifically, I wrote that the paint was chipping in
the living room because he used the wrong type of
paint for drywall, the faucets were leaking because
he didn’t use washers, the towel racks in the
bathroom fell off because he didn’t secure them
properly, and I discovered he wasn’t even licenced
to do electrical work, so I had to get a certified
electrician to check all his work. Fixing all his poor
work cost me $2,000. He never responded to my
email or called me back.
Implied Admissions
● Silence may be considered an admission
where a denial would be the only
reasonable course of action expected if the
person were not responsible
● Silence in front of a police officer is not an
admission
● Failure to testify or call witnesses in civil
cases may be an implied admission
Admission by conduct
● Post-offence conduct may be considered
an admission
● E.g. false alibis, hiding a body
Admissions by others
● Vicarious admissions (employee making
admissions)
● Statements by a representative or by
persons with identity of interest (statement
of a trustee of an estate)
● Statement by co-conspirators
○ Statements by someone engaged in
an unlawful conspiracy are received
as admissions as against all those
acting in concert if the declarations
were made while the conspiracy was
ongoing and were made towards the
accomplishment of that common
object
Hearsay Exceptions
Knowing he had no hope for survival after being
shot, Chandler tells his doctor at the hospital that it
was Ross that shot him. He dies soon after.
Dying Declaration
● It is not a norm of human behaviour to lie
on their deathbed
Requirements:
1. Deceased must have had a settled or
hopeless expectation of death when he/she
made the statement
2. Deceased would have been a competent
witness if available to testify at trial
3. Trial must be for murder, manslaughter, or
criminal negligence cause death
4. Deceased’s death is the subject of the
charge
Hearsay Exceptions
Your client, Joey, has been charged for theft from a
grocery store. After Joey was charged, his friend
Monica called the Crown and admitted that she was
the one that committed the theft and said that she
would make a statement exonerating Joey. Before
she could do so, Monica dies in a car accident.
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Declarations Against Interest
Declaration by a person that goes against their
penal interest
Requirements:
1. The declarant is unavailable to testify
2. The declaration was made to a person in
circumstances where the declarant should
have apprehended a vulnerability to penal
consequences as a result
3. The vulnerability to penal consequences
was not remote
4. The declaration must be considered in its
totality, with the weight against the
declarant
5. In a doubtful case, the Court might consider
whether there are other circumstances
connecting the declarant to a crime and the
connection between the declarant and the
accused.
Declaration by a person that goes against their
pecuniary or proprietary interest
Requirements:
1. The declarant is unavailable
2. The declarant had personal knowledge
about the facts
3. The declaration was against the declarant’s
immediate prejudice
4. The declarant knew the statement was
against their interest
Hearsay Exceptions
Your client, Ross, has been charged with assault
against Chandler. The Crown wants to call
Chandler’s neighbour, Phoebe, to the stand.
Unfortunately, Chandler passed away before trial.
Phoebe: I was in my apartment, when I heard
Chandler yelling. I hear him scream “get out of here,
Ross!”
Spontaneous Statements
● Spontaneous exclamations, or res gestae,
are statements made contemporaneously
to a startling event
● Hearsay dangers are minimized:
○ There is little time for calculated
insincerity, as the shock of the
event prevents conscious
reflection
○ There is no problem of faulty
memory
○ Perception may be heightened
● Statements to police and 911 calls may be
admitted under this exception
● See R v Mullin, 2019 ONCA 890 and R v
Hall, 2018 MBCA 122
Hearsay Exceptions
Your client is suing after slipping and falling at a
restaurant. You want to enter into evidence the
restaurant’s maintenance records forms that are
kept by staff to show the times that they mopped
the floor as well as any incidents such as spills.
Business Records
At common law:
● Statements made by a person under a duty
to another person to do an act and record it
● The statements/records were made in the
ordinary practice business
● The statements were within made by
someone having a personal knowledge of
the matters being recorded
● The statements were made
contemporaneously
● The statements were made without motive
or interest to misrepresent
See Ares v Venner, [1970] SCR 608
Evidence Act (Ontario):
● 35(1): record includes information that is
recorded or stored
● 35(2): “Any writing or record made of any
act, transaction, occurrence or event is
admissible as evidence of such act,
transaction, occurrence or event if made in
the usual and ordinary course of such
business to make such writing or record at
the time of such act, transaction,
occurrence or event or within a reasonable
time thereafter.”
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 ● 35(3): Notice required
● 34(4): “The circumstances of the making of
such a writing or record, including lack of
personal knowledge by the maker, may be
shown to affect its weight, but such
circumstances do not affect its
admissibility.”
Business Records
● Section 30(1) of the Canada Evidence Act:
○ “Where oral evidence in respect of a
matter would be admissible in a legal
proceeding, a record made in the usual
and ordinary course of business that
contains information in respect of that
matter is admissible in evidence under
this section in the legal proceeding on
production of the record.”
● Common law may still be relevant in
Ontario despite legislation
○ Case law suggests that subjective
opinions are inadmissible under
legislation, but opinions are admissible
under the common law
○ Common law exception applies to oral
statements as well as written
○ Common law exception does not
require notice
Hearsay Exceptions
You are suing a retirement home for negligence
after your client was injured. You would like to
submit as evidence an inspection report prepared
by the Public Health department that outlined
failings at the retirement home.
The defendant claims it’s hearsay.
Statements in Public Documents
● It’s assumed that public officers will
perform their tasks properly carefully and
honestly in the exercise of their duty
Requirements:
1. The subject matter of the statement must
be of public nature
2. The statement must have been prepared
with a view to being retained and kept as a
public record
3. It must have been made for a public
purpose and available to the public for
inspection at all times
4. It must have been prepared by a public
officer in pursuance of his or her duty
Examples: Government reports, official certificates,
parliamentary journals, Statistics Canada data.
Documents marked “confidential” or “secret” would
not fall under the exception.
Indigenous Oral Histories
● Supreme Court has recognized that the
laws of evidence must be adopted to
accommodate oral histories of Indigenous
peoples
● Oral history may be the only record of their
past
Non-Applicability of Hearsay Rule
● Small Claim Court judges are given more
discretion regarding the admissibility of
evidence
● Administrative tribunals have relaxed rules
of evidence
● Olarte v Commodore Business Machines,
Ltd. (1984), 49 OR (2d) 17 at para 8:
○ “By virtue of s. 15(1) of the
Statutory Powers Procedure Act,
the Board was entitled to admit and
to act on such similar fact evidence
and hearsay evidence and did not
err in doing either.”
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