Barrister and Solicitor
Legal Writing and Research
Administrative Law (Ontario)(SPPA)
(01 January 2015)
Chapter 6 - General SPPA Rules: Evidence
- General Civil Evidence Rules
(b) Forms of Evidence
(e) Probative Evidence
(f) Prejudicial, Character and Similar Fact Evidence
(g) "Credibility" and "Weight"
(h) "Circumstantial Evidence"
(k) Opinion and Expert Evidence
- Tribunal Rules of Evidence
(b) Privilege and Statutory Rules Preserved
(c) Business Records
(d) Oaths Not Necessary
- Good Character at Issue
- Documents Copies
- Use of Evidence from Other Proceedings
- Settlement Privilege
- Evidentiary Notice
(b) Witness Rights
(c) Summons to Witness
. Service of Summons
. Bench Warrant on Default
. Contempt Proceedings on Default
Evidence law as applied to Ontario's administrative tribunals is essentially the law of civil evidence generated by the common law and (much less so) by the Evidence Act (ie. the evidence rules used for civil lawsuits in the Superior Court) - all greatly simplified by provisions of the Statutory Powers Procedures Act (SPPA).
Section 2 of this chapter explores this Civil Evidence Background and is important for understanding the language and concepts which inform evidence law generally.
The balance of the chapter [ss. 3-9] then addresses issues specific to administrative tribunal and SPPA evidence law, including the following issues:
A tribunal may also make s.25.1 rules for 'documentary disclosure' before hearing. This authority is discussed in its own chapter [Ch.14] under that heading.
- modification of general evidence rules;
- use of document copies;
- use of evidence admitted in other proceedings;
- settlement privilege;
- where character of a person is at issue;
- evidentiary (judicial) notice;
- summons to witnesses.
No matter what specific administrative law regime that you are involved with (ie. human rights, landlord and tenant, social assistance, etc) it is always crucial to review the unique SPPA s.25.1 rules that have been made for it.
2. General Civil Evidence Rules
"Evidence" is the raw material which a 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 that the law has to reach determine what - amidst the typically conflicting versions of the parties - in 'fact' happened.
Remember as well that the "standard of proof" for fact-finding in civil legal proceedings (as opposed to criminal proceedings) is only the "balance of probabilities". So if a tribunal hears directly contradictory evidence from two different witnesses, they 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, even if it is only slightly more, will be the evidence they hold to be true - or to be a "fact". Those facts will then be plugged into the applicable legal tests, much like figures are plugged into an algebraic equation, and a decision generated.
This civil standard of proof, sometimes referred to as "more likely that not" is also what the tribunal will apply in deciding the outcome of the entire case. Plainly it is not a standard of certainty - it is just the best practical standard, short of god-like omniscience, that can be applied to resolve the case. Another way of putting this is that all other systems are worse than this one.
(b) Forms of Evidence
Evidence can come in the form of:
It is also possible for a court to "take evidentiary notice" of facts so 'notorious' (well-known) that no one would dispute them (eg. the sun will rise tomorrow, winter is cold, drinking alcohol reduces cognitive abilities, etc). When notice is taken of such facts it is as though they were proven in evidence in the normal fashion. In civil courts this doctrine is called 'judicial notice'.
- testimony: (spoken word, also called "viva voce" evidence),
- documents: typically written words on paper, but the term also refers to other records reduced to some semi-permanent storage form (ie. video, electronic recordings and computer data),
- 'real evidence' (ie. objects of any sort).
As well, courts are entitled to go out of the courtroom into the community and "take a view" of things and locations if necessary to make findings of fact. This is a rarely used power.
Remember that evidence is the raw material from which "facts" are generated. The concept of "materiality" doesn't apply to evidence so much as it does to "propositions", or possible fact scenarios.
A proposition is "material" if it matters 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 the case 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 - or what company manufactured the truck that made the last delivery. While those are obvious examples of 'immateriality', complex issues of causation and event interaction in real life can often pose challenging materiality scenarios.
"Materiality" is often confused with the concept of "relevance", discussed below.
"Relevance" is a concept that applies to evidence. Evidence is "relevant" if it tends to support or weaken a fact proposition.
Thus, a weather record indicating visibility conditions for the area, at the date and time that a rear-ender motor vehicle accident occured is relevant to the competing propositions that a driver could, or could not, see what was in the road ahead of them when the accident occured.
(e) Probative Evidence
Evidence which is both material and relevant 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.
Much of evidence law concerns itself with such exclusionary rules, which amount in most cases to policy decisions to exclude some evidence despite it being probative. The classic criminal law exclusionary rule that most people will be familiar with is that to exclude evidence if it was obtained by police in an illegal manner, so as to discourage police from using such evidence-gathering tactics (this is a gross simplification of the principle but you get the idea). Perhaps the most common civil evidence exclusionary principle is with respect to 'prejudicial evidence', considered next below.
Obviously, evidence which is not probative is either immaterial (ie. it doesn't matter if the point is proven or not) or is irrelevant (the evidence doesn't tend to prove or disprove a material point) - but in either case it is of no use to a tribunal and should not be introduced or admitted in evidence.
(f) Prejudicial, Character and Similar Fact Evidence
A court has a general power, frequently exercised, to exclude evidence even though it probative (ie. both material and relevant) - if is is overly "prejudicial". That is, if the probative value is outweighed by other immaterial negative impacts on a party.
The evidence concept of "prejudice" 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. A party should not win a case just because they are believed to be a "good person" - they should win because their behaviour and the law in their particular case vindicates them.
Take an example of a prejudicial piece of evidence that might arise in a lawsuit for breach of contract. The plaintiff might try to call evidence that the defendant could not be reached to arrange deliveries because he had been accused by his wife of domestic assault and he was speaking to the police at the time. The fact proposition that he was hard to reach may be material to the case, but the reason for it is highly prejudicial. Like a judge, an adjudicator has to balance these sorts of factors in deciding to admit and apply evidence all the time.
The exclusion of "prejudicial evidence" has significant application to court jury trials, where the judge is supervising what evidence goes before a jury (who are the "finders of fact" in jury trials). When a trial is before a 'judge' only (as all administrative proceedings will be) the judge must of course hear the evidence to determine whether it is prejudicial, and if they find that it is they will probably openly state that they are not going to give it any weight (ie. they will effectively ignore it). Of course a judge can't just delete such evidence from their minds, this is just a necessary legal fiction premised on the necessary belief that judges (and tribunal members) are experienced and disciplined enough to keep the prejudicial 'knowledge' out of their decision-making processes.
The concept of "prejudice" is also similar to that of "character evidence", where a party tries to call evidence about the past moral (or immoral) behaviour of themselves or an opponent. The general rule is that bad character evidence may not be introduced unless the subject party (who the evidence is about) first "opens the door" to the issue by introducing evidence that he or she is of good character and is to be trusted.
"Similar fact" evidence is that which shows a pattern of past behaviour of a party which is similar to that alleged in the proceeding being heard. Generally similar fact evidence is not admitted unless it shows a very strong pattern of very similar behaviour. For instance, losses in four prior lawsuits for writing fraudulent cheques would likely be admitted in a fifth lawsuit over the same issue.
(g) "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 statements made within documents). The term can also be used to describe a witness personally, referring to their general propensity to - or to not - tell the truth.
Be careful though, the concept of "credibility" does not only refer to a tendency of a witness to lie or not. It 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. night-time and bad weather), or by the passage of time (ie. events occured several years ago). So the evidence of a shortsighted, glasses-wearing witness who claims to be able to have seen events clearly at 3am in a poorly-lit alleyway will have credibility problems, despite a general belief in their honesty.
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 and therefore accepted to establish "facts".
The evidence from credible witnesses tends to be given more weight in everything they say, and vice versa. For instance, if a witness on the stand has made a statement which has beem contradicted by other pieces of evidence - such as a prior statement they themselves made in a tape recording or on other occasions in front of another witnesses, then the "credibility" of the contradicted witness is probably going to be held to be generally poor, both on that fact proposition and with respect to their other testimony as well. Witnesses can make honest understandable mistakes so this rule is not iron-clad, but on the other hand if the contradicted statement is self-serving (ie. reflects a self-interested motivation) then the general credibility of the witness will likely be poor and little weight will be given to most of what they say.
(h) "Circumstantial Evidence"
Television show lawyers speak a lot about "circumstantial evidence". "Circumstantial evidence" however 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: video of me leaving the park at that time.
Case Note: (i) Hearsay
In Polifroni v. Ontario Racing Commission #2 (Ont Div Ct, 2013) the court endorsed as reasonable a tribunal's fact-findings made entirely on circumstantial evidence.
Hearsay is (literally) what is "heard" from someone else "saying" it to you (although the "saying" and "hearing" can be both verbal and through writing). The basic rule (which is riddled with exceptions) is that hearsay evidence is not admissible.
The basic concern over hearsay as evidence is that what is being told to the tribunal is "second-hand" (and sometimes even third or fourth hand: called 'multiple hearsay') and therefore less reliable, a phenomenon well-known to everyone. The adjudicator wants to hear about the events from whoever has direct knowledge of it (ie. the person that said it in the first instance) - because that person's recollection is more likely to be accurate. As well, the other parties to the case are entitled to cross-examine the original declarant as to the accuracy and meaning of what they said - something that can't be done with those later in the hearsay 'chain'. Ideally, statements should be traced to those who directly observed the events which form the content of their statements, an aspect of another general principle that 'best evidence' should be presented whenever possible.
However, hearsay issues are only problematic if the subject statement is introduced for its 'truth value'. So for example if a witness testifies that he left work early because "the photo shop called and told him his prints were ready" (a hearsay statement), the truth of whether his prints were ready for pick-up or not is immaterial and does not trigger hearsay problems. Often this sort of statement is uncritically allowed into evidence under the general description of 'narrative': the background necessary to tell a complete story.
. Documents as Hearsay
An often overlooked aspect of the hearsay rule is documents. Documents are simply statements rendered into writing by a declarant who is not there to tell the tribunal about events directly. Use of such a document in evidence is the same as if A, who witnessed events directly, told B what happened and then sent B to tell the court - even if A wrote the document. In essence, there cannot be a non-hearsay document.
In the case of documentary hearsay the primary evidence concern is the absence of the original declarant from the hearing for cross-examination purposes. In fact, if they were present then the document would probably not be called into evidence at all - except perhaps by another party trying to impeach the witness if the document and the testimony were contradictory on a material point.
Another problem with the use of documents, which creeps frequently into administrative proceedings where hearsay rules are lax, is that documents created in contemplation of future litigation are admitted into evidence. This practice can allow authors friendly to the party (typically employees) to compile documents which are effectively a list of answers to "leading" questions (ie. the statements are not spontaneous and unrehearsed as they should be). In direct examination this is avoided by the rule that a party must ask their own (usually friendly) witnesses 'open-ended' questions, rather than yes/no 'leading' questions.
. Hearsay Exceptions
Historically, as a general rule, courts have excluded hearsay evidence. However there are many exceptions to the hearsay rule today, and the courts in Canada have now broadened the exceptions to allow any hearsay into evidence which is both "necessary" (ie. not otherwise available) and "reliable" (stated in circumstances which lend cerdibility to it). The main hearsay exception for documents is what is called the "business records" exception, where parties are allowed to introduce most pre-existing documents 'produced in the ordinary course of business' (and thus seen as reliable) 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 [Evidence Act, s.35].
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 doctors' time. Tribunals generally abide by this practice as well, though it is often advantageous to call a doctor as a witness if that can be arranged.
Other hearsay exceptions are for statements against interest, spontaneous declarations, public documents, statements revealing the state of mind of the declarant, etc. This program does not explore these issues further.
The modern tendency - and very much so the case with tribunals - is to allow hearsay to be admitted broadly - but to degrade it's "weight" where appropriate.
"Privilege" is an overriding principle of law that applies to evidence law. It is by it's nature an exclusionary rule.
The law wants to preserve confidentiality within certain kinds of relationships. The most well-known example of such a relationship that between a lawyer and their client (thus "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 future 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 (confidentiality).
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. So attempts by a party to introduce some evidence that is privileged may lead to the accusation that they have
'broken privilege', rendering all such communications available as evidence. The same risk of breaking privilege exists if confidentiality is broken, for example as it might be where a client wants a friend to sit in on their lawyer appointment.
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. The difficult aspect of this is that it leave claims of privilege to be decided by individual adjudicators on the facts of the case before them, so that parties have little certainty in the matter beforehand.
(k) Opinion and Expert Evidence
An "opinion" is a conclusion as to the truth of a fact proposition, made by someone other than the adjudicator.
The ultimate opinion in a case is that of the judge or adjudicator, who in their ruling is essentially saying that they are of the opinion that the plaintiff has proven/not proven their case, and the fact opinions that support this conclusion. As we all know, it is the specific duty of adjudicators to do this.
However, most of the rest of us are not allowed to give opinions. If the witness says "From what I have heard, I think he was in the park at 7pm", that is an opinion and it is not admissible. If he says "I saw the defendant in the park at 7pm", that is admissible evidence.
The main exception to the bar against opinion evidence is "expert evidence". Anyone 'qualified' 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 in which they are qualified.
A witness may be qualified as an expert based on either experience or academic qualifications, or both. Generally a party wanting to question an expert must first "qualify" them as an expert, which is usually done in tribunals 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.
Experts, who often testify through filed (and pre-served) reports should not be asked the ultimate question in the case ("who - if anyone - is liable") but can 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 regarding whether - in their opinion - this or that procedure is proper when repairing a car.
On the other hand, it is generally conceded that we are all experts on such commonplace things as testifying how fast a car was going or whether a person was drunk, and courts will normally allow opinion evidence on that from lay witnesses: ie. "he sure looked drunk to me".
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