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3. Small Claims Evidence Rules

(a) Traditional Evidence Rules Relaxed but Still Important

While it is useful to have a passing familiarity with the rules and principles of evidence law, it is most important to know that for purposes of Small Claims Court, these rules are mostly (with some exceptions) dramatically relaxed:

CJA 27(1)
... the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious.

That said, courts will still tend to approach their fact-finding task thinking in traditional evidence law categories. Thus while they may formally "admit" into evidence more statements and documents (discussed below) in Small Claims court than they otherwise would, this does not mean that all such evidence will be given equal "weight" or importance (this concept is discussed above).

Generally, failure to present important evidence in the best form available (eg. original testimony over hearsay, original documents over copies, in-person testimony rather than written witness statements) will hurt your case. Generally, the higher the importance of the fact at issue, the less the "weight" that will given to a secondary form of proof.

That said, the Small Claims court do encourage the use of secondary forms of evidence (ie. written witness statements) for necessary but uncontroversial pieces of evidence (see the discussion of "Authenticity and Pre-trial Disclosure" below).

(b) Privilege and Statutory Rules Preserved

As quoted above, s.27(1) of the Courts of Justice Act largely overrides most of the "common law" (ie. judge-made law) that constitutes traditional evidence law, at least as it applies to Small Claims Court.

However s.27(3) and (4) preserve some important evidence rules:

s.27(3)
Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible by reason of any privilege under the law of evidence; or

(b) that is inadmissible by any Act.

s.27(4)
Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

Thus, rules of "privilege", and any statutory rules which make evidence inadmissible or otherwise limit its use are still alive and kicking in Small Claims court.

"Privilege" is explained briefly in section 2(i) above and once applicable it is a simple exclusionary rule.

Statutory rules however can be quite numerous and are found in the Evidence Act and numerous other isolated statutes. I will not attempt to discuss them all here.

An interesting and important issue can arise over whether the heavily-used (at least in the Superior Court) Business Records notice requirement of s.35 of the Ontario Evidence Act, which embodies the business records hearsay exception [see section 2(h) above], is required in Small Claims Court. Business records include a very broad range of documents and records, the bulk of documentary evidence used in the courts today. Section 35 provides the business records MAY be admitted despite their hearsay nature if the notice has been given and the other party given an oppourtunity to inspect the original documents. Arguably then, without these pre-conditions the business records are hearsay and "inadmissible", potentially invoking CJA s.27(3). While strict compliance with the business records notice is uncommon in Small Claims court practice, I note that s.35(5), quoted here, suggests that the lax admissibility standards set out in the Small Claims rules would prevail in any event:

Evidence Act (Ontario)
s.35(5)
Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged.

Similar reasoning was recently applied in VFC Inc v Balchand [2008] OJ #533 (Div Ct) to hold that the giving of the Evidence Act business records notice was NOT a prerequisite to the admission of hearsay documents in the Small Claims Court.

Again, while these exceptions are important, they rarely arise in the day-to-day concerns of Small Claims Court. Privilege issues will normally be closed watched by the judge, and most Evidence Act provisions at most require pre-trial documentary disclosure, which the Small Claims Rules address directly themselves (see section 3(d): "Documents: Authenticity and Pre-Trial Disclosure"), below.

(c) Oaths Not Necessary

A further sign of the relaxed evidentiary attitude taken in Small Claims court is that evidence need not be given under oath, though it is common practice to swear witnesses in [CJA s.27(2)].

In today's courts, "swearing" refers to both the old-style bible oath (now any religious text) and to the more generic "affirmation", which is little more than solemn promise to tell the truth. It is polite to ask witnesses which they would rather do and to ensure that a copy of their religious text is available (bring one or check with the court clerk beforehand if they have one) if one is needed.

This rule is more important where the evidence of children and mental incompetence is involved, because in traditional evidence law the concern with such witnesses is their ability to "understand the nature of an oath or solemn affirmation". This provision dispenses with the need to make a psychological inquiry into this issue and allows the court to hear the evidence, and to "weigh" it as their judgment dictates.

(d) Documents: Authenticity and Pre-Trial Disclosure

Traditional evidence law made much of the need to laboriously prove the authenticity of documents tendered as evidence. In an age where paper (and now electronic) documents are an integral part of business and human interaction this requirement would place a huge burden on the courts of calling witnesses involved with the maintainance of record-systems, former employees who authored documents, those who had custody of documents over time, etc.

This burden - which has been relaxed even in the higher courts - has now been delegated to the discretion of the Small Claims court judge:

CJA s.27(5)
A copy of a document or any other thing may be admitted as evidence at a hearing if the presiding judge is satisfied as to its authenticity.

The concern over authenticity is now largely dealt with by pre-trial disclosure rules, which require a party to provide copies of documents to other parties beforehand so that they might examine them for content and authenticity, and prepare for any challenges to them at trial.

The Small Claims Court disclosure rules require that the following written statements, documents and audio or visual records shall be received in evidence, unless the court rules otherwise, if they are served on all the parties who received a Notice of Trial (practically, all other parties not noted in default) at least 30 days before trial [R18.02(1)(2)]:

• the signed written statement of any witness, including expert reports, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person;
  
  
• any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a receipt, a bill, documentary evidence of loss of income or property damage, and a repair estimate.

As can be seen, these disclosure rules cover a very broad range of documents.

Note:
The '30 days' here would appear to mean 30 days before the actual trial date, since a similar '30-day before trial' timeline (to amend pleadings) specifically refers to it being before "the originally scheduled trial date" [12.01(3)].

To facilitate the other parties investigating the content and origin of the statements and information within these "written statements or documents", the following information respecting the witness or author shall be appended to the document, "or included in the statement or document" when served [R18.02(3)]:

• name;
  
  
• telephone number;
  
  
• address for service;
  
  
• and - if the witness or author is to give expert evidence - a summary of his or her qualifications.

Note:
These contact information requirements can be quite a practical burden in some cases, although many such documents contain this information on their face. I note that it is an open issue as to whether the failure to comply with the R18.02(3) requirements to provide contact information bars the admission of timely-served evidence under R18.02(1) and (2).

The party who receives the document and wishes to cross-examine the author or witness at trial then has the burden of summonsing them to the trial [see "Summons to Witnesses" section 3(e) below] [R18.02(4)]. If they do they must also serve the summons on all other parties [R18.02(5)], failing which the other part/ies "may request an adjournment of the trial, with costs" [R18.02(7)] (something which they could have done anyway).

Note:
This duty to serve a copy of the summons on other parties appears to only apply to witnesses summonsed pursuant to information provided under these disclosure rules. Confusion will no doubt arise as there is no similar all-party service duty when "other" summons are used. The best practice is likely to serve copies of ALL summons on all parties.

Failure to serve the documents by the timeline established in R18.02(1) is not always fatal to their use. In Filipchuck v Tirino Corp [1999] OJ #4331 the Ontario Divisional Court declined to reverse a trial ruling in favour of the plaintiff where the plaintiff offered an expert report at trial past the R18.02(1) timeline (then 14 days). On examining the circumstances surrounding the use of the report the Divisional Court found insufficient prejudice to intervene. Note as well that a Small Claims court judge has a general discretion to waive the application of any Small Claims Rule [R2.02].

It is a difficult judgment call for a party as to when to rely on these document disclosure rules and use drafted "witness statements", and when on the other hand to call or summons the person themselves to testify. While it is a principle of evidence that the other side should be entitled to cross-examine the witness in person on important and contentious matters, these rules continue to accomodate that - but shift the burden of compelling the witness onto the other party. While there should be confidence that these rules are appropriately used with documents that came into being before the litigation (ie. contracts, receipts, bank records, etc), with expert reports, and where the witness is otherwise unavailable - reliance on them to replace key testimony where the demeanour and expressiveness of the witness is important is risky. As an example, the testimony of an eye-witness to an assault or a motor vehicle accident would be more compelling in person - while the testimony of an employee as to the condition of goods received can usually be safely replaced with a statement or affidavit with photos. Other similar circumstances can be imagined. This is not so much a legal issue as one of common human experience, and when to prefer an in-person witness should always be considered carefully.

Case Note:
The interaction of R18.02 (with it's provision for summonsing the author of a written document) and CJA 27 (which makes no provision for summonsing but does allow admission of such documents) were discussed in the case of MBK Services v. PowerForward Inc. (Div Ct, 2013). The Divisional Court stated that the deputy-judge who exercised their discretion to admit written statements (some of them unsworn affidavits) made an error in the exercise of their discretion to do so when they did not consider that the authors of the documents were in the US and therefore not amenable to being summonsed. However the court also held that the evidence in the statements was not material to the judgment reached, rendering the comment obiter.

Case Note:
The case of Lakehead Aluminum v. Mauno Parkkari (Div Ct, 2014) makes the excellent point that R18.02 is permissive with respect to the admission of evidence, rather than prohibitive (as it is often applied by deputy-judges.):

[21] Thus, provided that the evidence is not subject to privilege or rendered inadmissible by any Act, the Small Claims Court has the discretion to admit any oral or documentary evidence, whether or not sworn, affirmed or admissible in any other court, and a copy of a document may be admitted provided the court is satisfied as to its authenticity. While rule 18.02 expressly mandates the admission of documents that fall within its terms, it does not require the exclusion of documents that do not fall within its terms as set out in Ontario Small Claims Court Practice 2014:

Rule 18.02 is often misinterpreted. The rule provides a procedure for the admission of documents which have been served on the other parties at least 30 days before trial, without the need for in-person witness. It does not say that no document can be admitted at trial unless it was disclosed at least 30 days before trial: see O’Connell v. Custom Kitchen & Vanity, 1986 CanLII 2650 (ON SC), 1986 CarswellOnt 414, 56 O.R. (2d) 57, 11 C.P.C. (2d) 295, 17 O.A.C. 157 (Ont. Div. Ct.). Rule 18.02 is an enabling provision and not a prohibition. It enables the admission of documents which might otherwise be excluded as hearsay. Documents not admitted under rule 18.02 may be admitted through other means such as through an in-person witness (M.A. Zuker and J.S. Winny, Ontario Small Claims Court Practice, 2014 (Toronto: Thomson Reuters, 2013) at p. 206).

Case Note: In Untinen v Dykstra c.o.b., Dykstra Roofing & Renovations, IKO Industries Ltd. (Div Ct, 2016) [paras 22-39] the court considers the R18.02 pre-trial disclosure rule where expert evidence was taken at trial without an expert report having been disclosed 30 days before trial (and apparently not at all). The court concludes that while it is desirable to disclose documents beforehand, that the wording of Rule 18.02 is not mandatory so as to result in the exclusion of evidence not so disclosed. The issue remains discretionary to the court.

(e) Summons to Witnesses

Note:
The Rules have now established connections between some disclosure rules (immediately above: "Documents: Authenticity and Pre-Trial Disclosure") and these summons rules. Both should be reviewed in detail.

A "summons to witness" - although prepared and served by a party to the proceeding - is similar in effect to a court order compelling a witness to appear at a trial or other hearing, and to bring with them any specified documents or other things within their control [R18.03(1)(2)]. Failure to comply with it can trigger punitive "contempt of court" proceedings against the witness.

Summons are not only used for antagonistic or unfriendly witnesses. Many institutions have a policy, driven by liability concerns, that they will not allow a staff-person to attend court in a professional capacity without having been served a summons. As well, sometimes a summons may be served to give a person a 'good excuse' so they will not be blamed by an employer who resents their absence. Sometimes a summons is a good (and prudent) way to deal with "cold feet" by a witness who, despite their verbal assurances, may not attend for whatever reason.

Summons are directed at individual people, not parties. A corporate defendant "as such" should not be served with a summons, and they may not send who they want as a witness in response to the summons - that person is named by the summonsing party. This presents the party wanting to issue the summons with the task of deciding who and there can be more than one) is the best witness to compel from "the other side".

The Summons document is prepared by the party who wants to serve it, and is then taken to the court office for "issuance" (court fee required). Alternatively a party may attend at the court office and obtain a blank issued summons, which may then be completed and served.

Form 18A: Summons to Witness
A Summons must be served personally (NOT by an "alternative to personal service") (see Ch.6: "Service of Documents") on a witness, at least ten days before the trial[R8.01(7)] and be accompanied by attendence and travel fees (usually a cheque payable to the witness), as set by law [R18.03(4)]. (see Ch.18 "Court Fees").

Service of the summons and payment of attendence monies may be proved by affidavit Form 8A: Affidavit of Service [R18.02(6); R18.03(4)]. There is no rule requirement that such affidavits of service for summons be filed with the court, but they should be prepared and available at trial should the court require them.

A new rule effective 01 July 2006 creates a duty on the party that summonses a witness to arrange for a qualified interpreter if the "witness requires an interpreter", UNLESS the interpretation required is French/English or English/French - in which case the court will provide interpretation [R18.03(5.1)] (see Ch.5 "Language of Proceedings") (though the court clerk must of course be notified well in advance). Failure to meet this duty entitles "every other party to request an adjournment of the trial, with costs" [R18.03(5.2)].

As trials and court proceedings are often delayed and adjourned, once a summons is served the witness is legally "bound" to re-appear whenever their attendence is required by the party who summonsed them [R18.03(5)]. Care should be taken to keep such a witness well-informed of any changes in date, time and location requirements(minimally letters should be sent, with copies kept).

Non-compliance with a summons may result (it is unusual) in the court issuing a "Warrant for Arrest of Defaulting Witness" [R18.03(6)], arrest until attendence is no longer required, and costs orders against the defaulting witnesses [R18.03(7)]. An "identification form", to be completed by the party who served the summons has recently (01 July 2006) been added to the court rules to assist police in locating and arresting defaulting witnesses [R18.03(6.1)].

Form 18B: Warrant for Arrest of Defaulting Witness

Form 20K: Identification Form
Similarly, a party who abuses the power to issue summonses may be ordered to pay compensation to the witness for inconvenience and expense [R18.03(8)].

A party compelled under summons to answer questions which raise issues of their own illegality or fiduciary (ie. trust-like) responsibilities would be wise to seek their own legal counsel promptly.

(f) Settlement Conference Statements Privileged and Implied Undertaking Rule

In order to facilitate open and frank settlement negotiations, which are a key purpose of any settlement conference held, it is a rule that anything said during them must be held confidential and cannot be used in evidence at the trial [R13.03(4)].

It is also the practice of the courts (codified in the higher courts - see Rules of Civil Procedure R30.1) that anything learned by a party in the course of litigation disclosure should remain confidential and not be disclosed outside of the litigation. This is known as the "implied undertaking" rule, an "undertaking" (promise) being implied to have been made by the other party not to disclose the information learned. While there is no express "implied undertaking" rule in the Small Claims court the rule is largely a codification of developing common law and it is a reasonable conclusion that anything learned on documentary disclosure and in a settlement conference is subject to such an undertaking. That said, the "deemed undertaking" ends when the information or document involved is made publically-accessible by filing with the court or being put into evidence in open court.

(g) Taking a "View"

An available, though rarely-used, evidentiary method available to the court is "taking a view". This usually means the judge leaving the court - in the company of the parties or representatives from each side - to inspect buildings, vehicles or locations ("any real or personal property concerning which a question arises in the action": [R17.03]).

It may also be used to examine personal property where the party in control of it does not want it entered as an exhibit and held by the court, such as animals or perishable goods which the court facilities can't properly keep.

Commonly photographs are used to avoid the need to "take a view".

(h) Proof Where Proceeding Undefended

As discussed in the Ch.9 "Default by Defendant", where a Defendant is noted in default, the plaintiff may request that the clerk enter judgment for any part of the Claim which is for "debt or liquidated demand in money, including interest if
claimed" [R11.02(1)].

For the balance of the claim, liability will be assumed as proven [R11.03(5)] and only damages must be proven. This is called a "damages assessment" and it may proceed by way of a written motion and/or an oral hearing [R11.03]. Typically evidence in a damages assessment is proven by affidavit.

A written motion with affidavit evidence might be be suitable for the determination of business damages where something such as loss of profit is to be determined, but less suitable for the determination of damages in which pain and suffering or the bad faith or intentionally injurious behaviour of the other side is relevant to damages. Considerations here are similar to those used when deciding to use witness statements as discussed in section 3(d) "Documents: Authenticity and Pre-Trial Disclosure", above. Where the plaintiff feels that in-person testimony is key to establishing the amount of damages in a case, they should avoid a written motion for damages assessment and proceed directly to an assessment hearing [R11.03(2)(b)].

(i) Discovery in Small Claims Court

. No Oral Discovery

Once upon a time the Small Claims Court had rules (like the higher court) that allowed the parties the possibility of oral "discovery". Oral discovery is a pre-trial, out-of-court questioning of parties and witnesses - the purpose of which is to provide a written transcript for the use of the parties as evidence.

The elimination of oral discovery rules in Small Claims court (they are still available in the Superior Court) does not stop parties - on consent - from arranging discovery on their own. While unusual, if this is done the transcripts created can be used in evidence to replace or impeach (contradict) testimony in accordance with the normal evidence usage. This practice is unusual.

Discovery is normally arranged to be held before private "reporters" or "examiners" who charge commercially for their services.

. Other Forms of Discovery

While the Small Claims Court Rules are generally considered as lacking the range of non-oral discovery procedures available in the Superior Court, the Court of Appeal in Riddell v Apple Canada Inc. (Court of Appeal, 2017) discusses when Orders in the nature of pre-trial physical discovery might be made under the court's broad general jurisdiction under Rule 1.03(1-2) (liberal construction of the Rules, and anologous to Rules of Civil Procedure, respectively).

Case Note:Elguindy v St. Joseph’s Health Care (Div Ct, 2017)
In this case the Divisional Court held that the Small Claims Court had no jurisdiction to order production of documents by a non-party.

(j) "Subject to Proof"

It sometimes occurs in the course of a trial that a piece of evidence (testimony, document or otherwise) necessary to fully 'tell the story' in a coherent chronological way is temporarily missing by mistake, absent witness or for other reasons. In such cases the court has discretion to continue with the presentation of evidence "subject to proof" of the missing evidence, even though the continuing evidence logically presupposes that the missing fact is proven. This gives the party intending to call the evidence an oppourtunity to arrange for the evidence to be presented at a later date in the trial.

The Rules of Civil Procedure, which govern the procedure in the Superior Court expressly provide for this in R52.10. Small Claims Court R1.03(2) now expressly allows the court to decide its practice by reference to the Rules of Civil Procedure.

A court is most likely to grant this if the missing evidence appears uncontroversial and if there is a reasonable excuse for its absence. A Small Claims court judge in such a case is also likely to pressure the other side to admit an uncontroversial fact which the missing evidence is directed at.

Proceeding "subject to proof" is not an oppourtunity to avoid presenting the evidence in the hope of bolstering a weak case, it is simply a reasonable and temporary exception to allow for practical day-to-day problems of presenting evidence. Judges will watch carefully for abuse of this oppourtunity.