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Evidence - Refreshing Memory. Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333)
In Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) (Fed CA, 2026) the Federal Court of Appeal considered seven appeals, all relating to "a dispute between the parties that dates from 2017 when Grain Workers’ Union Local 333 ILWU (the Union) filed two policy grievances alleging violation by Viterra Canada Inc. (Viterra) of the maximum work hours provisions of the Canada Labour Code".
Here the court considered the evidentiary principles of 'past recollection recorded' (a hearsay exception), and 'refreshing memory':[120] The Federal Court admitted the Diaries of Mr. McFeeters and Ms. Kerr on the basis of the "“past recollection recorded”" exception to the hearsay rule:[48] Under this exception to the hearsay rule, a witness who does not recall relevant events may testify to having recorded those events, and the record created then admitted as evidence where the following criteria are satisfied:1. The past recollection was recorded in some reliable way;
2. At the time, the event was sufficiently fresh and vivid to be probably accurate;
3. The witness is able now to assert that the record accurately represented their knowledge and recollection at the time. The usual phrase requires the witness to affirm that they "“knew it to be true at the time”"; and
4. The original record itself is used, if it is procurable (R v Fliss, 2002 SCC 16 at para 63, citing Wigmore on Evidence (Chadbourn rev 1970), vol 3, c 28, s 744 et seq). ....
(1) Past recollection recorded
[123] Viterra submits that the Union did not follow the procedure required to establish a permanent lapse of memory by failing to walk Mr. McFeeters and Ms. Kerr through each event recorded in their respective Diary to confirm whether the witness remembered the entry: C.(J.) v. College of Physicians & Surgeons (British Columbia), [1990] B.C.J. No. 159, 1990 Carswell BC 7 (C.(J.)). According to Viterra, the result of this failure was an insufficient evidentiary record on which the Federal Court could determine whether the evidence from the Diaries was admissible on the basis of past recollection recorded or present memory revived.
[124] The Federal Court’s finding of a permanent lapse of memory was specific to the central question in issue. I agree with the Federal Court that the critical recollection of Mr. McFeeters and Ms. Kerr was the number of hours worked on a specific day and that the test for past recollection recorded does not require a loss of memory of all of the events or information recorded: R. v. Sipes, 2012 BCSC 834 at para. 21. Here, for example, Ms. Kerr stated that she could remember working on specific dates but could not remember the hours worked on any of the dates during the recorded period without referring to her Diary. The hours worked was the "“event”" that the Union sought to establish via the Diaries; the days worked was not. Indeed, the parties have been embroiled in a dispute since 2017 on the singular issue of number of hours worked by employees per week. The evidence set out in the Second Admissibility Order provides ample support for the Federal Court’s conclusion that neither Mr. McFeeters nor Ms. Kerr had any recollection of the hours worked on a specific date.
[125] The Federal Court stated that the fact the Union did not take the witnesses to each Diary entry did not preclude a finding of past memory recorded. I agree despite Viterra’s insistence that this omission was fatal to admission of the Diaries.
[126] In C.(J.), there were 10 serious incidents of alleged misconduct by a doctor before a committee of inquiry of the provincial College of Physicians and Surgeons. The witness had a present memory of a number of the critical events about which she testified: C.(J.) at para. 37. In this case, however, neither Mr. McFeeters nor Ms. Kerr had any recollection of the hours worked each day. The BCCA stated that the committee "“could have”" gone through each of the alleged incidents to establish whether the complainant had a present recollection of the incident (C.(J.) at para. 28) but, in my reading of the decision, the BCCA did not mandate a process to be used in every case. I find that the Federal Court properly distinguished C.(J.). on the facts of the case before it.
[127] The Federal Court reviewed the viva voce evidence of Mr. McFeeters and Ms. Kerr in response to specific questions from the Union as to whether they could remember, without reference to the particular Diary entry, the number of hours worked on a specific date. Each witness responded that they could not remember hours worked on any of the dates recorded. I acknowledge that the evidence given was not specific to each date but find no palpable and overriding error in the Federal Court’s reliance on that evidence as sufficient to establish a permanent lapse of memory for the relevant period.
....
(2) The third Fliss criterion
[128] The third Fliss criterion requires that:[63] […]
3. The witness is able now to assert that the record accurately represented their knowledge and recollection at the time. The usual phrase requires the witness to affirm that they “knew it to be true at the time”. [129] The question before this Court is whether the Federal Court made a palpable and overriding error in inferring that the third Fliss criterion was met.
....
[133] The issue before the Supreme Court in Fliss was the admissibility of an officer’s viva voce evidence of the confession the accused made to the officer. The confession was recorded with prior judicial authorization and a 50-page transcript prepared the following day. The transcript itself was declared inadmissible at trial. The Supreme Court noted that the officer’s testimony covered 34 pages of the single-spaced transcript and went well beyond his recollection of the confession at the trial. Justice Binnie found that the officer’s testimony did not qualify for admission as past recollection recorded because the third Wigmore (now Fliss) requirement was not met. The officer read the lengthy transcript the day following the confession and would have had a good recollection of it but "“the appellant was entitled to hear him swear to it”", although no particular form of words is required: Fliss at para. 64.
[134] The Federal Court relied on the decision in R. v. Pilarinos, 2002 BCSC 798 (Pilarinos) to infer the accuracy of the Diary entries. The Pilarinos decision followed 14 voir dires for the admission of statements overheard and transcribed by police officers. The B.C. Supreme Court (BCSC) stated, at paragraph 21, that there are circumstances in which the third Fliss criterion can be inferred but emphasized that the circumstances must make clear the accuracy of the recorded recollection. The BCSC in Pilarinos admitted one statement as meeting the Fliss criteria for past recollection recorded, stating:[46] […] The officer recorded his notes immediately after he overheard them. Although the officer did not specifically say that these notes accurately represented his knowledge and recollection at the time, he did say that he tried to set out the conversation in the order that he overheard it and he believed he had done the best he could. In Fliss, supra, Binnie J. said that no specific words had to be spoken in order to meet the Wigmore test. I am satisfied from the circumstances of the note-taking in this case that his notes reflected in his appendix accurately represent his recollection at the time. It is the original record. It was made in a reliable way and at a time when it would be sufficiently fresh and vivid to be probably accurate. Any other faults with respect to the note-taking are a matter of weight. . Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court considers the 'refreshing memory' principle as justification for the 'improved memory' of the witness between a pre-hearing interview and hearing:i. Improved recollection
[114] Mr. Candusso submits that the Tribunal majority erred in dismissing as implausible his direct evidence explaining the reasons for his trades. As one of the reasons for concluding that his explanation was not credible, the Tribunal majority stated, at para. 258(b):During his compelled interview in 2016 Christopher [Candusso] had only a cursory memory of the details of articles, blog posts and posters who covered Amaya. During his testimony, however, Christopher had an implausibly detailed recollection of many specific articles, posts and BNN coverage of Amaya. [115] Mr. Candusso argues that this approach is contrary to well-established legal principles that recognize that defending parties are permitted to refresh their recollection through preparation for the hearing: see R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 335. Mr. Candusso says that it is improper to draw negative credibility inferences from a defending party’s improved level of testimonial detail that resulted from the legitimate exercise of a procedural right: see R. v. A.K., 2020 ONCA 435, at para. 26. He also says that it is improper to impugn a defending party’s credibility by suggesting that their evidence was tailored as a result of their exercise of procedural rights: R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 114; R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14, at para. 25.
[116] I see no reversible error in the Tribunal majority’s assessment of Mr. Candusso’s credibility. The trier of fact is entitled to consider inconsistencies between earlier investigative interviews and statements as compared to testimony at trial: R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, at para. 13. In contrast to the authorities Mr. Candusso relies on, the impugned testimony was not affected by pre-hearing disclosure or the prior testimony of other hearing witnesses. The Tribunal majority’s finding did not, as Mr. Candusso argues, conclude that he had tailored his evidence to pre-hearing disclosure or prior testimony or otherwise impinge on any procedural rights. Given the evidence before the Tribunal, I see no palpable and overriding error in the Tribunal majority’s finding. . Papadakis v. Wawanesa Mutual Ins. Co.
In Papadakis v. Wawanesa Mutual Ins. Co. (Div Court, 2022) the Divisional Court pointed out a practice implication of not introducing an expert report directly in evidence:[68] From my review of the transcript, it appears that what the Vice-Chair prevented the expert witnesses from doing was the giving of evidence directly out of their reports and notes. The reports, themselves, were not introduced pursuant to the Evidence Act as the expert’s evidence in chief. Therefore, the reports could only be used to refresh the witness’ memory, and not to prompt his testimony, and when they are used for the former purpose, the proper foundation must be laid (see: R. Wilkes, 2005 MBCA 99 at para. 43-44; Stone v. Ellerman, 2009 BCCA 294 (CanLII) at para. 54,56, and 58). . Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario
In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court considers what documents a witness (here, an investigator) may use to 'refresh their memory':[62] Ms. Yan also questions the fact that Ms. Yee “never had her own original” investigation notes as an aid during her testimony. Ms. Yee was, in fact, not required to have any document with her to provide her oral testimony at the hearing. She was permitted to refer to the investigation report, if necessary, to refresh her memory. The Supreme Court of Canada has held that witnesses are permitted to refresh their memories using any document if their actual testimony is from present memory (R v Fliss, 2002 SCC 16 at para 8). . R. v. Kerr
In R. v. Kerr (Ont CA, 2022) the Court of Appeal commented on the use of contemporary notes to refresh recollection:[22] In any event, the undercover officer could have testified to his conversation with the appellant, and refreshed his memory using contemporaneous notes, even if the recorded conversation was inadmissible. As Binnie J. states, at para. 45 of R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, in these circumstances, it is the officer’s “recollection, not the stimulus [that would rekindle his recollection] that becomes evidence.” . R. v. Dupuis
In R. v. Dupuis (Ont CA, 2020) the Court of Appeal reviewed the procedure for refreshing memory with a witness' prior statement:[46] Another situation in which a witness’s prior statement may be put before the witness is where counsel is refreshing memory. This is permitted only where the witness is having difficulty remembering. Whether counsel is permitted to refresh memory in this way is in the discretion of the trial judge, and there is a procedure that must be followed. Counsel must lay a foundation by ascertaining whether the witness is having difficulty remembering. Counsel should ask the witness if they wish to refer to a prior statement. If the witness confirms he or she needs assistance remembering and wishes to refer to the prior statement, counsel should seek leave from the court to refresh the memory of the witness. The statement is produced to opposing counsel, who may object to its use. If the court permits the refreshing of memory, counsel should provide the statement to the witness, and instruct the witness to consult the relevant portion in silence. Counsel can then resume questioning the witness: see Sidney N. Lederman, Alan W. Bryant & Michelle Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th Edition (Toronto: LexisNexis Canada, 2018), at ss. 16.128-16.129; Peter J. Sankoff, The Law of Witnesses and Evidence in Canada (formerly Witnesses), (Toronto: Thomson Reuters Canada Limited, 2019), at c. 11.4. If the statement does not refresh the witness’s memory, “no use should be made of it unless the record is admissible under some other rule of evidence”: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 546.
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