Barrister and Solicitor
Legal Writing and Research
Small Claims Court (Ontario) Law
(01 July 2018)
Chapter 15 - Evidence
- General Evidence Concepts
(a) Forms of Evidence
(d) Probative Evidence
(e) "Prejudicial" Evidence
(f) "Credibility" and "Weight"
(g) "Circumstantial Evidence"
(j) Opinion and Expert Evidence
- Small Claims Evidence Rules
(a) Traditional Evidence Rules Relaxed but Still Important
(b) Privilege and Statutory Rules Preserved
(c) Oaths Not Necessary
(d) Documents: Authenticity and Pre-Trial Disclosure
(e) Summons to Witnesses
(f) Pre-trial Conference Statements Privileged and Implied Undertaking Rule
(g) Taking a "View"
(h) Proof Where Proceeding Undefended
(i) No Discovery in Small Claims Court Rules
(j) "Subject to Proof"
The topic of Ontario civil evidence law is quite broad, though thankfully the civil version is simpler than its criminal counterpart. It involves a wealth of "common law" (past judicial decisions) and the Ontario Evidence Act, as well as numerous other statutory provisions scattered throughout the legislation.
It is beyond the scope of the present work to thoroughly explore the law of civil evidence. What follows are brief discussions of some basic principles and terms used in evidence law, along with a more detailed review of specific evidentiary rules (and modifications to traditional rules) which apply to the Small Claims Court.
"Evidence" is the raw material which an judge or adjudicator uses to reach "findings of fact". The findings of fact that the evidence generates are - for all their flaws - "what happened" for all intents and purposes of the legal proceeding. If you do not agree with the fact-finding that has been made (or even if you KNOW it to be wrong), recognize that the rules of evidence are the best rules courts know of to reach the necessary goal of fact-finding.
Remember as well that the "standard of proof" for fact-finding in civil legal proceedings - as opposed to criminal proceedings - is "balance of probabilities". So if the court hears directly contradictory evidence from two different witnesses, it will look to surrounding circumstances, other evidence of the witnesses, demeanour, documents - whatever is available - to see if there is some reason to prefer the evidence of one witness over the other. The evidence that they believe MORE - even if it is only slightly more - will be the evidence they hold as true - or to be a "fact".
This same standard of proof, sometimes referred to as "more likely that not" is also what the court will apply in deciding the outcome of the entire case. Recognize that is not a standard of certainty - it is just the best practical standard that can be applied and still resolve civil disputes. Another way of saying this is that all other systems are worse than this one.
When assessing a case you should try to distinguish between 'facts' and 'law', as lawyers commonly do. "Facts" are the raw material that are then inserted into legal rules to determine an outcome. If it helps, think of the relationship between facts and law as a bit like algebra, with facts being the variables and law the "if, then" equations that the facts are fed into.
2. General Evidence Concepts
(a) Forms of Evidence
Evidence can come in the form of:
It is also possible for a court to "take notice" of facts so 'notorious' and well-known that no one would dispute them (eg. the sun will rise tomorrow, winter is cold, drinking alcohol reduces cognitive abilities, etc). As well, courts are entitled to go out of the courtroom and "take a view" of things and locations if necessary to make findings of fact.
- Testimony: (spoken word),
- Documents: words or records reduced to writing; the term is also generally used to include video, electronic recordings and computer data [R18.02(1)],
- Real Evidence (ie. objects).
"Materiality" doesn't apply to evidence so much as it does to "propositions", or possible facts. Facts are "material" if they matter to the case. For example, in a lawsuit for breach of a contract to supply a certain product to the plaintiff, it is "material" to inquire how much product was delivered and when it stopped. It is not "material" to explore how the children of both parties go to the same Sunday school and get along fine.
The term is often confused with that of "relevance", discussed below.
"Relevance" is a concept that applies to evidence. Evidence is "relevant" if it tends to support or weaken a proposition or possible fact. Thus, a weather record substantiating the occurence of low-lying fog at the location and time of an accident, is relevant to the proposition that the driver could not see what was in the road ahead. Of course, a weather record showing it was a clear, sunny day would also be relevant for the same reason.
(d) Probative Evidence
Evidence which is relevant to a material fact is said to be "probative". Once evidence is probative it should be admitted and weighed, assuming there are no exclusionary rules that apply to it.
Obviously, evidence which is not probative is of no use to a court and should not be introduced.
(e) Prejudicial, Character and Similar Fact Evidence
The court has a general power, frequently exercised, to exclude evidence even though it probative (ie. both material and relevant) - if it is "overly prejudicial". That is, if the probative value is outweighed by its "prejudicial" harm.
This concept has a passing relationship to the more common use of the term "prejudice" - as for example "racial prejudice". As used in evidence law it refers to the tendency that humans have to jump to conclusions based on evidence that places a party in a bad light. Remember that a party should not win a case just because they are a "good person" - they should win because their behaviour and the law in this particular case favour them. The term has more application to jury trials, where the judge is supervising what evidence goes before a jury. When a trial is before a judge only the judge must of course hear the evidence to determine whether it is prejudicial, and if they find that it was they will probably openly state that they are not going to give it any weight (ie. they will effectively ignore it).
An example of a prejudicial piece of evidence might be in a lawsuit for breach of contract. The plaintiff might try to call evidence that the defendant could not be reached for several weeks as he was in jail after being charged with drunk driving, which charges were eventually dropped. A judge would very likely exclude such evidence from their considerations.
The concept of "prejudice" is similar to that of "character evidence", as where a party tries to called evidence about the past bad moral behaviour or reputation of an opponent. The general rule is that this may not be done unless the opponent themself first "opens the door" to the issue by introducing evidence that he is a good and respected member of the community.
"Similar fact" evidence is that which shows a pattern of past behaviour of a party which is similar to that alleged in the present case. Generally similar fact evidence is not admitted unless it shows a very strong pattern of very similar behaviour. For instance, six prior instances where the defendant was successfully sued for writing bad cheques would likely be admitted in a lawsuit over a bounced cheque.
(f) "Credibility" and "Weight"
"Credibility" in the law of evidence basically means what it does in everyday conversation: the measure of accuracy or truth that attachs to a given statement by a witness (which includes documents) - or more generally to a witness themselves.
It does not only refer to a tendency of a witness to lie or tell the truth, but also relates to the ability of a witness to see, hear and remember events, whether this is effected by their own sensory abilities (eg. bad eyesight), by external conditions (eg. nighttime), or by the passage of time (ie. events occured several years ago).
If one piece of evidence is more credible than another on the same subject, then the first will be given more "weight" - ie. it is more likely to be believed. The evidence of credible witnesses tends to be given more weight in everything they say.
For instance, if a witness on the stand has made a statement which can be contradicted by other pieces of evidence - such as a prior statement they themselves made in a tape recording, and on other occasions in front of another witnesses, then the "credibility" of the contradicted witness is probably going to be held to be poor on that fact proposition. If that contradiction and other evidence suggests a pattern of self-serving lies on the part of the witness then the general credibility as a witness will likely be poor and little weight will be given to most of what they say.
Of course, evidence that an eye-witness giving evidence to establish the identity of a person needs eye-glasses and was 200 feet away at the time is also relevant to their credibility.
Case Note: Clarke-McLean v Incredible World Trading Corp. (Div Ct, 2015) (g) "Circumstantial Evidence"
In this Small Claims appeal case the court briefly stated a useful standard for assessing credibility:
 The Appellants say that the proper test of credibility is whether the evidence is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in the particular place and conditions: see Faryna v. Chorny, 1951 CanLII 252 (BC CA),  B.C.J. No. 152 (C.A.). I accept this test for the purposes of this Endorsement.
Television show lawyers also speak of "circumstantial evidence", but this is not so much a type of evidence as it is a logical principle of deduction. Deduction is reasoning from general known principles to a specific proposition.
For example, if I am alleged to have committed an assault in the park Wednesday night at 3am, evidence from the security camera recording me as leaving the park at 3:15am is good "circumstantial evidence" against me. This is because it is a known general principle that whoever was close to a place at the time when an act was done is more likely to have done the act than all the other people who were far away at the time.
If the tape showed me assaulting someone it would be direct evidence of the act. It is circumstantial evidence because of the application of deductive reasoning to the direct evidence that does exist - me leaving the park at that time.
Hearsay - essentially - is what is what you "hear" someone else "say" to you -although the "hearing" and "saying" can be through the medium of the written word as well as through speech.
The basic concern over hearsay as evidence is that what is being told to the court is "second-hand" and therefore less reliable. The court wants to hear directly from whoever "told" the witness - because it is more likely to be accurate - and because the other parties are entitled to cross-examine the original declarant as to the accuracy and meaning of what they said.
However, something is "hearsay" for evidence purposes ONLY if the statement is introduced for its "truth value". So for example if a witness testifies that he left the party at 11pm because his mother telephoned him and asked him to come home, that is not hearsay unless his reason for leaving is material to the case - in which case the truth of the statement would be material.
Documents are always hearsay as they are viewed as statements made by the author - who is not (normally) there to tell us directly. It's the same as A telling B what happened so that B can then tell the court - except that the statement is recorded in writing. The main problem with documents is not so much any loss of accuracy of what is being said, it is that written statements are commonly very selective as to their content and presentation (some can essentially be a litany of answers to "leading" questions, which would normally be prohibited in evidence presentation), so that cross-examination of the author in person is required to dig into the truth and context of the facts alleged.
Historically, as a general rule, courts have excluded hearsay evidence. However there are many exceptions to the hearsay rule today, and in addition the courts in Canada have broadened the exceptions to allow any hearsay into evidence which is both "necessary" (ie. not otherwise available) and "reliable" (stated in circumstances which lend credibility to it). The main hearsay exception for documents is what is called the "business records" exception, where parties are allowed to introduce most documents into evidence as long as prior notice has been given to the other parties of the intention to do so and the other parties have had a chance to inspect the original documents. Note that "business records" should be distinguished from other documents created for the purposes of the litigation, such as expert reports.
There is also a general court rule that medical evidence should usually be put in through written reports (served prior to trial) rather than direct evidence from doctors. The idea here is not to waste doctor's time.
Other hearsay exceptions are for statements against interest, spontaneous declarations, public documents, statements revealing state of mind of the declarant, etc. This program does not explore these issues further.
The modern tendency is to allow hearsay but only to degrade it's "weight" if appropriate, and this is certainly the tendency in Small Claims court.
"Privilege" is an overriding principle of law that applies to evidence law, but also extends beyond it.
The law wants to preserve confidentiality within certain kinds of relationships. The most well-known manifestation of this is "solicitor-client privilege". The main type of solicitor-client privileged communications are those flowing between client and lawyer for the purpose of receiving legal advice (though there are more varieties).
Solicitor-client "privilege" belongs to the client and they may "waive" it. But unless the client "waives privilege" the solicitor generally (there are some exceptions such as planned violent acts) cannot be forced to testify with respect to privileged matters. Further the solicitor is expected to keep all privileged matters secret in other circumstances as well. Generally it is difficult to only partly "waive" privilege as courts don't want to see parties revealing evidence good for their case but preventing other parties from exploring into other, potentially harmful evidence.
While it is impossible to predict when privilege will be extended to categories of relationship other than solicitor-client and a few other specialized circumstances, the law of privilege in Canada has opened up in the last few years to consider specific relationships on a case-by-case basis to determine whether they should be protected by privilege. This will leave claims of privilege to be decided by individual trial judges on the facts of the case before them.
(j) Opinion and Expert Evidence
An "opinion" is someone's conclusion with respect to a fact proposition.
The ultimate opinion in a case is that of the judge, who in their ruling is essentially saying that they are of the opinion that the plaintiff has proven/not proven their case. As we all know, they are allowed to do this.
However, usually witnesses are not allowed to give opinions. If the witness says "I think he did it", that is an opinion and it is not admissible. If he says "I saw him do it", that is admissible evidence.
The main exception to the bar against opinion evidence is expert evidence. Anyone "qualified" (ie. certified) by the judge as an expert in a given field, or on a certain subject, may be allowed to give opinion evidence on questions closely-related to the field of expertise on which they were qualified.
A witness may be qualified as an expert based on experience and/or on academic qualifications. Generally a party wanting to question an expert must first establish their expertise, which is usually done in Small Claims court by simply filing their curriculum vitae (resume) and having them testify as to its accuracy. Specific questions from all parties, and the judge, are allowed if any doubt remains. This is the "qualification" stage of an expert's testimony, which can often be quite brief or agreed by parties based on a filed curriculum vitae (resume).
Experts almost invariably pre-file with the court an 'expert report' under R13.03(2)
[14 days before settlement conference], and R18.02 [general pre-trial disclosure]
Prohaska v Howe (Ont CA, 2016), para 43,45. They should not be asked the ultimate question in the case ("who - if anyone - is liable") but can usually be asked broad material questions regarding specialized topics which may be hard for non-experts to understand. For example, cases over faulty car repair almost always require testimony or a report from the plaintiff's (new) mechanic.
On the other hand, it is generally conceded that we are all experts on such commonplace things as testifying 'how fast was the car going' or 'was she drunk at the time', and courts will normally allow opinion evidence on that from lay witnesses.
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