Suzanne Amiel
Civil Evidence – Bachand Fall 2009
THE LAW OF EVIDENCE (CIVIL MATTERS)
SUMMARY
Introduction ....................................................................................................................................................... 3
A.
The Law of Evidence: Generalities.................................................................................................................. 3
i. Definition and scope ............................................................................................................................................................... 3
ii. Nature of the Rules of Evidence ........................................................................................................................................ 4
iii. Objectives Served by the Law of Evidence in Civil Matters ................................................................................. 4
Damaska, “Truth in Adjudication” ........................................................................................................................................................... 4
Clermont, K.M. and E. Sherwin, “A Comparative View of Standard of Proof” ...................................................................... 5
F.H. v. McDougall (2008) – CML (SCC from BCCA) .......................................................................................................................... 7
B.
Overview of Relevant Sources .......................................................................................................................... 7
i. Fact-Finding Before the Courts .......................................................................................................................................... 7
ii. Fact-Finding Before Quasi-Judicial Tribunals ............................................................................................................. 8
iii. Fact-Finding Before Consensual Arbitral Tribunals ............................................................................................... 8
C. Structure of the Course: Three Fundamental Questions Addressed by the Law of Evidence ... 8
Part I. What Kind of Information is the Adjudicative Process Concerned With? ....................... 9
D.
Information Relating to Adjudicative Facts ................................................................................................ 9
i. Evidence Relating to Facts Directly in Issue (“Material Facts”) ............................................................................ 9
ii. Evidence Relating to Circumstantial Facts (“Evidentiary Facts”) ....................................................................... 9
Crispino v. General Accident Insurance Co. (2007) – CVL (QCA) .............................................................................................. 9
Cloutier v. The Queen (1979) – federal law (SCC) ......................................................................................................................... 11
Anderson (Guardian ad litem of) v. Erickson (1992) – CML (BCCA) .................................................................................... 12
Cornu, Vocabulaire Juridique, “Présomption” ................................................................................................................................. 13
Fontaine v. British Columbia (1998) – CML (SCC, from BCCA) ............................................................................................... 14
Banque Nationale du Canada v. Soracchi – CVL (QCA) ............................................................................................................... 15
iii. “Hard” Evidence, as Opposed to Opinions................................................................................................................ 16
Broun, K.S. (ed), McCormick on Evidence, “Title 11: The Opinion Rule” .............................................................................. 17
R. v. Graat (1982) – CML (SCC)............................................................................................................................................................... 18
R. v. Mohan (1994) – CML (SCC, from OCA) ..................................................................................................................................... 19
R. v. Adams (1996) – CML (Court of Appeal, Criminal Division, England) ......................................................................... 21
Kumho Tire Co. v. Carmichael (1999) – CML (US Supreme Court) ........................................................................................ 22
Broun, K.S. (ed.), McCormick on Evidence, “Title 17: Proposals for Improvement of the Practice Relating to
Expert Testimony” ...................................................................................................................................................................................... 24
Glenn R. Anderson, “Clear and Partial Danger: Defending Ourselves Against the Threat of Expert Bias” .......... 25
“Latimer Owed Explanation, Judge Suggests” (National Post) ................................................................................................ 25
iv. Facts That Need Not Be Proved .................................................................................................................................... 26
R. v. S. (R.D.) (1997) – CML (SCC from NSCA).................................................................................................................................. 27
E.
Information Relating to Normative Facts (To the Contents of Legal Rules) ................................. 28
i. Legislative Facts..................................................................................................................................................................... 28
R. v. Askov (1990 SCC) [class case] ...................................................................................................................................................... 29
Ann Woolhandler, “Rethinking the Judicial Reception of Legislative Facts” .................................................................... 29
R. v. Spence (2005) – CML (SCC from OCA) ...................................................................................................................................... 30
ii. Formal Legal Sources ......................................................................................................................................................... 31
The Queen v. Evgenia Chandris (1977) – CML (SCC from NBCA)........................................................................................... 31
Broun, ed., McCormick on Evidence, “Title 335: The Judge’s Task as Law-Finder: Judicial Notice of Law” ......... 32
Ordon Estate v. Grail – CML (SCC from OCA) .................................................................................................................................. 34
Part II. What Are the Roles and Responsibilities of the Adjudicator and the Parties in the
Fact-Finding Process?................................................................................................................................... 34
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Suzanne Amiel
Civil Evidence – Bachand Fall 2009
F.
The Adjudicator’s Role Vis-à-vis the Parties ............................................................................................ 34
i. In the Common Law Tradition ......................................................................................................................................... 34
Brouillard v. the Queen (1985) – CML? (SCC from QCA) ............................................................................................................ 35
Simioni v. Simioni (2009) – CML (Ontario Superior Court of Justice) .................................................................................. 36
ii. In the Civil Law Tradition ................................................................................................................................................. 36
Hein Kotz, “Civil Justice Systems in Europe and the United States” ...................................................................................... 37
James Beardsley, “Proof of Fact in French Civil Procedure” ..................................................................................................... 37
iii. In Quebec ............................................................................................................................................................................... 38
Technologie Labtronix Inc. v. Technologie Micro-Controle Inc. (1998) – CVL (QCA) ................................................... 39
iv. Before Inferior Tribunals................................................................................................................................................. 40
Rivest v. Bombardier Inc. (2007) – CVL (QCA) ............................................................................................................................... 41
v. Before Arbitral Tribunals.................................................................................................................................................. 42
G. The Parties’ Role Vis-à-vis Each Other: the Burden of Proof ............................................................. 42
Caisse Populaire de Maniwaki v. Giroux (1993) – CVL (SCC from QCA) ............................................................................. 43
Hollis v. Dow Corning Corp. (1995) – CML (SCC from BCCA)................................................................................................... 44
Part III. How May Evidence Be Used to Prove Facts? ......................................................................... 45
H.
Examples of Rules Primarily Aimed at Elucidating Truth .................................................................. 45
i. Preliminary Question: Are they Really Necessary? ................................................................................................. 45
Cross and Tapper on Evidence, “Proceedings in Other Tribunals” ....................................................................................... 45
ii. Rules that Concern the Use of Documentary Evidence ........................................................................................ 46
Guerin v. State Life Insurance Co. (1911) – CVL (QSC) ................................................................................................................ 47
Valuex Inc. v. Richmond Transport Inc. (1980) – CVL (QCA) ................................................................................................... 49
Toronto-Dominion Bank v. 9045-1287 Quebec Inc. (2006) – CVL (QSC) ........................................................................... 49
Salomon v. Pierre-Louise (2001) – CVL (QCA) ............................................................................................................................... 52
Bertrand Durand Inc. v. Acibec Ltd. (1995) – CVL (QCA) ........................................................................................................... 53
Dans l’affaire de la faillite de: CDI Industries Inc. – CVL ............................................................................................................ 53
Cross and Tapper on Evidence, “Section 3. Admissibility of Extrinsic Evidence” ............................................................. 56
Canada Newspapers Co. v. Kansa General Insurance Co. (1996) – CML (OCA) ................................................................ 56
iii. Rules that Concern the Use of Testimony................................................................................................................. 57
R. v. Khelawon (2006) – CML (SCC from OCA) ................................................................................................................................ 61
Morrow v. Royal Victoria Hospital – CVL (SCC from QCA) ........................................................................................................ 63
Promutuel Drummond (Insurance Co.) v. Gestions Centre du Quebec & 9025-6835 QC Inc. (2002) – CVL
(QCA) ................................................................................................................................................................................................................. 64
iv. Rules that Concern the Use of Real Evidence .......................................................................................................... 65
v. Authentication Requirements ......................................................................................................................................... 65
I. Examples of Rules Primarily Aimed at Ensuring the Efficiency of the Adjudicative Process .. 66
i. The Doctrine of Res Judicata and Related Matters .................................................................................................. 66
Danyluk v. Ainsworth Technologies Inc. (2001) – CML (SCC from OCA) ............................................................................ 67
Toronto (City) v. C.U.P.E., Local 79 (2003) – CML (SCC from OCA) ....................................................................................... 68
Rocois Construction (1990) – CVL (SCC) [class case] .................................................................................................................. 69
Ungava Mineral Exploration Inc. v. Mullan (2008) – CVL (QCA) ............................................................................................ 70
Ali v. Cie D’assurance Guardian du Canada – CVL ......................................................................................................................... 70
ii. The Litigation Privilege/Work Product Doctrine ................................................................................................... 71
Blank v. Canada (Department of Justice) (2006) – CML (SCC from OCA) ........................................................................... 71
J.
Examples of Rules Primarily Aimed at Furthering Extrinsic Public Policies ................................ 72
i. Rules Limiting the Admissibility of Evidence Because of the Nature of the Information to which It
Relates ........................................................................................................................................................................................... 72
Three Rivers District Council v. Bank of England – CML (Court of Appeal, England) ................................................... 73
A.(M.) v. Ryan – CML (SCC from BCCA) .............................................................................................................................................. 74
Récupération Portneuf Inc. v. Saint-Alban (Paroisse) – CVL (QCA) ...................................................................................... 76
Foster Wheeler Power Co. v. SIGED (Société municipale…) – CVL (SCC from QCA)...................................................... 76
Glegg v. Smith & Nephew Inc. (2005) – CVL (SCC from QCA)................................................................................................... 77
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Suzanne Amiel
Civil Evidence – Bachand Fall 2009
ii. Rules Limiting the Admissibility of Evidence Because of the Manner by which It Was Obtained ..... 78
Houle v. Mascouche (Ville de) (1999) – CVL (QCA) ...................................................................................................................... 78
INTRODUCTION
A. THE LAW OF EVIDENCE: GENERALITIES
I. DEFINITION AND SCOPE
The law of evidence is mostly concerned with the factual information on the basis of which adjudicative
decisions are made. Here we are concerned with the law of evidence in civil matters.
Adjudicative Process
1. Determine the facts
2. Determine the relevant law
3. Process the facts through the relevant law and determine the legal consequences
The rules of evidence ensure that the adjudicator applies the right facts to the right law, so that the whole process
remains legitimate.
“Adjudicative Decisions”
 There are two major ways that judicial disputes can be resolved:
o Settlement
 Settlement is an agreement arrived at through successful negotiations outside of court – is a
contract ending the dispute
 Can be party-to-party negotiations OR negotiations assisted by a 3rd party (mediator who
doesn’t have power to make a final/binding decision for parties)
 90-95% of civil disputes are resolved through settlement
o Adjudication
 Final/binding decision rendered by a third party
 Third party can either be the public judicial system (courts/quasi-judicial tribunals) OR
arbitration (private adjudication)
 Arbitration decisions have pretty much the same force/authority as a judge’s decision – are
binding (can give the arbitrator this power through contract)
 This dispute resolution mechanism is on the rise (because public court system is too slow,
too expensive, and the quality of justice may not be as good)
“Factual Information”
 Fact-finding is determining the who did what, when, where of a given case
 Why is fact-finding necessary in adjudication?
o Adjudication is a process in which public bodies are vested with enormous power  they must be
legitimate. To be legitimate, must be conducted according to rules (rules-based).
o Rules draw conclusions from certain facts  always have to apply law to certain sets of facts
o Adjudicators, because they are not parties to the dispute (core ingredient of impartiality), have no
knowledge of the specific facts of the case
“Legal Information”
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Suzanne Amiel
Civil Evidence – Bachand Fall 2009

The law of evidence is also concerned with the acquisition and use of the legal information on the basis of
which decisions are made; i.e. the content of legal rules and the consequences the law draws from facts as
established
“Civil Matters”
 Disputes arising on the basis of private law, not public law (i.e. no criminal matters)
 Unlike in criminal disputes, in civil matters the parties are assumed to be on equal footing
o In criminal trials, there is an inherent imbalance between the accused and the State so that it makes
sense to favour the defendant
o Also, the consequences of a criminal trial are very grave such that it makes sense to favour the
defendant
 Civil matters also excludes administrative disputes
II. NATURE OF THE RULES OF EVIDENCE
Substantive or Procedural?
 This question is not merely theoretical  can have practical effects on what law of evidence applies to a
dispute
art. 3130 CCQ
art. 3132 CCQ

Evidence is governed by the law applicable to the merits of the dispute, subject to any of the rules of
the court seised of the matter which are more favourable to the establishment of evidence.
Procedure is governed by the law of the court seised of the matter.
Some of the rules of evidence are substantive, indicates art. 3130
Mandatory or Suppletive?
 If laws of evidence are mandatory, parties will not be able to contract out of them and adjudicator will have a
responsibility to ensure compliance with the rules of evidence even if parties fail to raise them
 Some are mandatory, some aren’t  depends on their nature and purpose.
III. OBJECTIVES SERVED BY THE LAW OF EVIDENCE IN CIVIL MATTERS
Objective 1: Discovery of the True Facts of the Case
 This is obviously a goal of the law of evidence  to find who did what, when, where so can apply the law to
the right facts
 But how much importance should be given to the ascertainment of truth?
 Some other values might outweigh the search for truth (competing social interests that dictate that certain
facts not be used to make a decision – ex. privacy)
 Furthermore, certain attainment of truth is not actually possible  there are degrees of knowability;
many facts can never be known 100% accurately
o Sometimes future events are at issue; sometimes socially constructed facts (e.g. does this constitute
an obscene picture)
o Evidence may not exist to attest to a fact; it may be unreliable (testimony of a memory)
 Are the limits to our ability to ascertain facts to grave as to make us lose faith in adjudication? No. We can
get close enough to the truth; plus, there are no alternatives.
Damaska, “Truth in Adjudication”
 Working assumptions of practice of adjudication (realism theory of truth):
o Truth is in principle discoverable
o Accuracy in fact-finding constitutes a precondition for a just decision
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Civil Evidence – Bachand Fall 2009

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Many modern theories challenge the idea that objective truth exists out there to be found
o Social constructionism  idea that most facts that we seek to establish in adjudication are social
creations rather than phenomena that exist in nature
 Does not necessarily mean that they cannot be known for certain (days of the week)
Problem: whose is the relevant social perspective of reality?
o Many facts that are the object of proof remain the same regardless of social, ethnic, gendered,
perspectives – but many don’t  what is the “objective” truth?
o In the latter case, law generally insists on a single, fixed perspective that it determines is the
objective truth
The administration of justice requires aspiring to the discovery of truth – but it is always impossible
o Many facts lie in the past and are thus unknowable in totality – many lie in the future and are thus
actually unknowable; other facts consist of complex social evaluations
Truth-conducive values are not an overriding consideration in legal proceedings, however:
o Several social needs/values exercise constraining effect on attempts to achieve fact-finding precision
o Privacy, human dignity, protection of the individual from power of the state in criminal proceedings
Doctrine of the standard of proof was developed to incorporate the inherent uncertainty in fact-finding
process into the law of evidence
Standard of Proof


The standard of proof is the degree of conviction required before an adjudicator can conclude that a
fact actually happened
The standard is not absolute certainty, which would be an unworkable standard. Any shred of contrary
evidence would undo a case – and as we saw above, certainty is impossible.
o If certainty were the standard, most substantive rights would be impossible to enforce
CML Standard of Proof in Civil Matters
COMMON LAW CIVIL STANDARD OF PROOF = BALANCE OF PROBABILITIES
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Balance of probabilities means that it is more likely than not that the disputed fact occurred
Alleged fact is considered proved if the probability of it being accurate is greater than 50%
This is a blank acknowledgement that sometimes adjudicators will get it wrong
o Can wrongfully dismiss or sustain an action
In civil matters, CML accepts this likelihood that mistakes will be made
CML does not accept that chance in criminal matters, where the standard of proof is much higher: “beyond
a reasonable doubt”  because the consequences of a wrong decision are so much more grave
CVL Standard of Proof in Civil Matters (EXCLUDING QC)

It is a little bit unclear; some commentators say that the civil standard of proof in civil law jurisdictions is
closer to beyond a reasonable doubt
Clermont, K.M. and E. Sherwin, “A Comparative View of Standard of Proof”
 Standard of proof: the degree of necessary persuasion a fact must exhibit to be considered true in an
adjudicative context
 CML civil standard of proof (US/England) = probabilistic  civil claims must be proved by a
preponderance of the evidence
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Civil Evidence – Bachand Fall 2009
o
o
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Is lower in civil cases than in criminal cases (where standard of proof = beyond a reasonable doubt)
U.S. Example: 3 standards of proof prevail:
 1. Civil litigation: standard of preponderance of evidence (translates into more-likely-thannot)
 2. Civil litigation in special situations: clear and convincing evidence (translates into muchmore-likely-than-not)
 3. Criminal litigation: beyond a reasonable doubt (proof to a virtual certainty)
CVL civil standard of proof (Germany/France) = truth  must be proved to high degree of certitude
o High standard: “intime conviction”, an inner, deep-seated personal conviction of the judge of
the truth or existence of the pertinent fact
o No difference between civil and criminal standards of proof in civil-law jurisdictions
CML method: candidly recognizes that truth and hence fact-finding is a matter of probability
o Therefore pursues an error-minimizing strategy  tries to keep the total number of dollars coming
from the wrong pockets to a minimum
Why the difference between CML and CVL?
Historical Explanations
o CVL began with French Revolution: free evaluation of the judge became the rule in matters of
evidence  “intime conviction” became rule in civil and criminal cases (historical desire to restrain
the judiciary?)
o CML had a jury: had to explain the role of uncertainty in its decision-making process
Current Explanations
o Lack of civilian interest in evidence theory (because of lack of jury)?
o Desire to favour the defendant? No reason to do so in civil litigation, say authors
o Legitimacy: desire to make the decisions of the court appear legitimate  standard of intime
conviction suggests to the parties/public that judges will not treat facts as true on less than certain
evidence  is probably not true, but it looks good
What explains this higher standard of proof in CVL jurisdictions? Perhaps their historical mistrust of the
judicial institution (extending back to the French Revolution)  is a limitation of judges’ discretion
Drawbacks of this higher standard
o Makes it harder for people to assert/protect their rights
o Defendant is favoured for no real reason
Some commentators have responded to the above article (Taruffo) and said that in practice, the standard of
proof in civil law jurisdictions is functionally the balance of probabilities, or not too far from it
Quebec Civil Standard of Proof
art. 2804
CCQ

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the
law requires more convincing proof.
This is the exact same approach as CML.
The Civil Standard of Proof in Difficult Cases
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There is a general reluctance to apply the civil standard of balance of probabilities to cases that raise
particularly sensitive issues (ex. fraud, criminal activity, professional misconduct)
Courts in the US have therefore instituted a second civil standard of “clear and convincing evidence”
In common law Canada, it has been affirmed by the SCC that there is only one standard in civil matters,
and that is balance of probabilities. See the following case:
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Suzanne Amiel
Civil Evidence – Bachand Fall 2009
F.H. v. McDougall (2008) – CML (SCC from BCCA)
Facts: F.H. suing McDougall for damages because alleges that McDougall sexually assaulted him while he was
at a residential school. Has given some inconsistent evidence on that point. Trial judge found in favour of the
plaintiff. Court of Appeal reversed the decision on the basis that the trial judge did not assess the evidence
according to a high enough standard of proof.
Issue: What is the standard of proof in civil litigation? Holding: Proof on the balance of probabilities.
Reasoning (Rothstein J.):
 Much confusion in Canadian jurisprudence on the civil standard of proof in cases in which allegations made
against defendant are particularly grave (fraud, professional misconduct, criminal conduct  things that
carry moral stigma)
 Has been articulated as being “commensurate with the occasion” (Lord Denning, Bater v. Bater), imposing a
duty on the trial judge to scrutinize the evidence with “greater care” (Laskin, Continental Insurance Co.),
“clear and convincing and based upon cogent evidence” (Heath), etc.
o UK jurisprudence has suggested that criminal standard should sometimes apply in the civil context if
the case calls for it
 Rothstein J. reasserts that there is a single civil standard of proof in Canada  proof on a balance of
probabilities
o Criminal standard of beyond a reasonable doubt is linked to presumption of innocence in criminal
cases (does not exist in civil cases)
o Intermediate standard of proof presents practical problems
o Evidence should always be scrutinized with great care
o Evidence must always be clear, convincing, cogent
 Sidenotes:
o Failure by a trial judge to apply the correct standard of proof in assessing evidence would constitute
an error of law
o An appellate court is only permitted to interfere with factual findings when the trial judge has
committed a “palpable and overriding error” in their findings
Ratio: There is a single civil standard of proof that is applicable in Canada: proof on a balance of probabilities.
In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more
likely than not that an alleged event occurred.
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In CVL Canada, we have another case: Auberge des Pins  confirms that there is only 1 civil standard of
proof (balance of probabilities).
But this case also says that judge should scrutinize evidence more carefully in such cases, thus leaving door
open to a higher standard to be applied in cases of special circumstances
Objective 2: Increase the Efficiency of the Adjudicative Process
 Many laws of evidence relate to making the adjudicative process more efficient
 Ex. res judicata
Objective 3: Public Policies
 Sometimes, the law of evidence will recognize that the search for truth is less important than other values
that need to be protected in the instance
 Ex. fundamental rights (improperly obtained evidence, lawyer-client privilege).
B. OVERVIEW OF RELEVANT SOURCES
I. FACT-FINDING BEFORE THE COURTS

CVL: the rules applicable before the courts are mostly codified  see CCP/CCQ
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Suzanne Amiel
Civil Evidence – Bachand Fall 2009
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CML: traditionally, the laws of evidence applicable before the courts were judge-made
o Statutes and codifications are increasingly important, although never intended to be exhaustive
o This is especially true in the US: the U.S. Federal Rules of Evidence are quite close to an exhaustive
codification of the rules of evidence in force at the federal level
 They offer precise formulations of CML rules/doctrine
In Canada, the bulk of the legislative competence to make laws with respect to evidence rests with the
provinces (s. 92(13) Property and civil rights in the province)
Parliament can regulate evidence in disputes involving federal matters (for example, maritime law)  see
the Canada Evidence Act. Has not extensively occupied the field, however.
o When a federal statute is silent, s. 40 of the Canada Evidence Act applies:
s. 40 CEA
In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the
province in which those proceedings are taken, including the laws of proof of service of any warrant,
summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to those
proceedings.
II. FACT-FINDING BEFORE QUASI-JUDICIAL TRIBUNALS
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Cannot assume that a quasi-judicial tribunal (Human Rights Commission, Régie du Logement) will have the
same rules as evidence as courts
Many of the statutes creating these bodies will contain provisions on evidence
These provisions generally exempt people from following the normal rules of evidence because the function
of these tribunals is to simplify court procedure and free litigants from excessive technicality
See an Act Respecting Administrative Justice
III. FACT-FINDING BEFORE CONSENSUAL ARBITRAL TRIBUNALS

The key principle is party autonomy – parties can pick their own rules of evidence. See IBA Rules
Foreword, which assumes that parties can decide what rules of evidence they want to apply:
If the parties wish to adopt the IBA Rules of Evidence in their arbitration clause, it is recommended that they add the
following additional language to the clause: ‘In addition to the [institutional or ad hoc rules chosen by the parties], the
parties agree that the arbitration shall be conducted according to the IBA Rules of Evidence.’

For example: Editions Chouette case (SCC from QCA 2003)
o Parties agreed on documents-only evidence (no witnesses) in their arbitration clause
o Party who lost the case at arbitration challenged the arbitral tribunal’s decision on the basis that
documents-only rules of evidence violated fundamental principles of natural justice
o SCC refused this argument  the parties’ autonomy to pick their own rules of evidence held
C. STRUCTURE OF THE COURSE: THREE FUNDAMENTAL QUESTIONS ADDRESSED BY THE LAW OF EVIDENCE
1. What kind of information is the adjudicative process concerned with? i.e. What kind of information may
bear on an adjudicator’s decision?
2. What are the roles and responsibilities of the adjudicator and the parties in the fact-finding process? i.e.
How is knowledge of such information acquired by adjudicators?
3. How may such information be used by adjudicators?
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Suzanne Amiel
Civil Evidence – Bachand Fall 2009
PART I. WHAT KIND OF INFORMATION IS THE ADJUDICATIVE PROCESS CONCERNED
WITH?
D. INFORMATION RELATING TO ADJUDICATIVE FACTS
The General Idea:
When drawing conclusions in relation to adjudicative facts, the adjudicator may rely on:
1. Evidence relating to material facts submitted at trial
2. Evidence relating to circumstantial facts submitted at trial
3. General facts beyond reasonable dispute (doctrine of judicial notice)
I. EVIDENCE RELATING TO FACTS DIRECTLY IN ISSUE (“MATERIAL FACTS”)
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Material facts are:
o The basic facts that a plaintiff must prove in order to establish the right that he or she is asserting;
together with
o The basic facts that the defendant must prove in order to establish the defence he or she puts forward
For example: in a medical liability case,
o Plaintiff must prove i) fault, ii) causation, iii) harm
o Defendant must prove, if putting forward a prescription defence, that prescription has occurred
Evidence that has a direct relation to material facts can be thought of as direct evidence
General rule: direct evidence is admissible, i.e. the adjudicator can take it into consideration and rely on it
to make their decision (N.B. adjudicator does not have to rely on it; does not have to assign it any probative
value)
II. EVIDENCE RELATING TO CIRCUMSTANTIAL FACTS (“EVIDENTIARY FACTS”)
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Material facts can be proved using evidence relating to circumstantial facts
Circumstantial facts are facts which
o Are not material
o But are nevertheless relied on in an attempt to prove a material fact
Evidence relating to circumstantial facts is indirect evidence
Circumstantial evidence is produced to convince a factfinder to make an inference
o Court has the discretion to consider whether inferences sought to be made from circumstantial
evidence are strong enough to meet the standard of proof
o N.B. this is a matter of weight, not admissibility  the two are conceptually separate
See the treatment of the weight of circumstantial evidence in this case:
Crispino v. General Accident Insurance Co. (2007) – CVL (QCA)
Facts: Crispino owned a building in Montreal covered by an insurance policy with GAI. A fire, determined to be
arson, severely damaged the building. Crispino wants his insurance for damages; GAI contends Crispino set the
fire himself. Trial held that Crispino committed arson.
Issue: Is the circumstantial evidence strong enough for the court to infer that, on a balance of probabilities,
Crispino committed the arson for which he is trying to recover insurance? Holding: No.
Reasoning (Nuss J.A.):
 The facts in this case call for the application of the principles with respect to proof by inference or
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Civil Evidence – Bachand Fall 2009
presumptions (art. 2846, art. 2849)
Proof by presumption involves a process of examining known facts and determining whether on the
basis of these facts the existence of another fact is established (sometimes called proof by circumstantial
evidence)
o Art. 2849: Presumptions have to be serious, precise, and concordant for a court to consider them
(where they aren’t established by law)
o Lamer J.A. sets out what art. 2849 means in Longpré v. Thériault:
 Serious: the relation between the known fact and the unknown fact is such that the
former powerfully establishes the latter
 Precise: the conclusions that can be drawn from the known fact tend to directly and
particularly establish the unknown fact
 Concordant: the known circumstantial facts all point in the same direction as they
establish the unknown fact
 Trial judge erred in concluding that Crispino set the fire because the presumptions flowing from the facts on
which she relies or not sufficiently serious, precise, and concordant
o She makes too much of his repairs to the building, his inconsistent testimony, the key in the lock
(lost in the chain of evidence), and the fact that he made coffee and breakfast for his wife before he
went to see the damage to the building
o She also neglects that Crispino lacked motive to burn down his building
 Proof offered is not sufficient for the presumption that Crispino committed arson to be drawn on the balance
of probabilities
Ratio: Known circumstantial evidence can only support the court’s inference of an unknown fact if the
presumptions to be drawn from the circumstantial evidence are serious, precise, and concordant.

The General Rule for the Admissibility of Circumstantial Evidence: RELEVANCE


Adjudicators may rely on indirect evidence if it meets a basic threshold of relevance
I.e. is the circumstantial fact sufficiently related to the material fact it seeks to establish to be considered
o N.B. relevance has nothing to do with reliability: we are not, at this stage, looking at the quality of
the evidence, but rather its admissibility
art. 2857 CCQ
All evidence of any fact relevant to a dispute is admissible and may be presented by any means.
Rule 402
USFRE
Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United
States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
P. 5.4
UNIDROIT
The parties have the right to submit relevant contentions of fact and law and to offer supporting evidence.
When Will Evidence Relating to a Circumstantial Fact Be Considered Relevant?

The standard of relevance is fairly low: evidence relating to a circumstantial fact is admissible if that
circumstantial fact has the tendency to render the existence of the material fact sought to be proved more or
less probable.
o N.B. there must only be a possibility that the evidence relating to the circumstantial fact will help in
making the decision
o When in doubt, court will err on the side of admissibility
Rule 401
Definition of “Relevant Evidence”
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USFRE
‘‘Relevant evidence’’ means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.
P-16A
UNIDROIT
“Relevant” evidence is probative material that supports, contradicts, or weakens a contention of fact at
issue in the proceeding.
See the standard of relevance being used in this case:
Cloutier v. The Queen (1979) – federal law (SCC)
Facts: Cloutier was charged with importing marijuana into Canada in the false bottom of a dresser that he
ordered and shipped from South America. Prosecution tried to submit in evidence some materials showing that
Cloutier was a marijuana user in order to establish his motive/mens rea for importing the drug (pipes, pot, etc).
Trial judge decided it was inadmissible – Court of Appeal reversed the ruling.
Issue: Is the evidence showing that Cloutier was a marijuana user relevant to proving the charge that he was
importing the drugs? Holding: No, with dissent.
Reasoning:
Majority (Pratte J.): evidence inadmissible because not relevant
 Admissible evidence is that which is:
o 1. Relevant
o 2. Not excluded by any rule of law or practice
 What is relevant = what goes to the proof or disproof of a matter in issue  will be decided by logic
and human experience
 For one fact to be relevant to another, there must be a connection or nexus between the two which
makes it possible to infer the existence of one from the existence of the other
 Evidence is not admissible if its only purpose is to prove that the accused is the type of person who is more
likely to commit a crime with which he/she is charged; such evidence does not have real probative value
with regard to the specific crime attributed to the accused
 No connection between fact that accused used marijuana and fact that he knew dresser contained the narcotic
at the time it was important  the latter is not a logical inference from the former
Dissent (Pigeon J.): evidence admissible because relevant
 General rule: admissibility of evidence depends on its character, not its weight
 As long as the evidence has a connection to the specific crime (ex. it was the same drug used as was
imported), it is admissible
 If it has no connection except to show the bad character of the accused (as the kind of person who would
commit such a crime), it is inadmissible
 In this case, the fact that the accused used the very type of drug which was imported is relevant to the charge
that he imported it
Ratio: Only relevant evidence is admissible; relevant evidence is evidence that helps determine whether a sought
fact is more or less likely (i.e. makes a difference to its probability).
Bachand on Cloutier:
 The regular use of soft drugs is not sufficiently probative of the fact that guy knew he was importing drugs
 Where do you go to find the answer? Common sense.
 ***N.B. Relevance is not assessed in light of legal rules  it is a matter of common sense and the
judge’s discretion
Relevance Continued: The Judge’s Remaining Exclusionary Discretion


Finding that the basic low threshold of relevance has been met does not end the relevance analysis
Just because evidence is relevant, does not mean it is automatically admisisble
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

The adjudicator has the general discretion to exclude evidence regardless of its relevance if the costs of
letting the evidence in outweigh the advantages of letting it in
What costs are we talking about here? 2 kinds:
o Costs to the search for truth: admission of the evidence risks distorting the factfinding process by
hindering more than helping
o Costs to efficiency: undue delay, etc.
 Ex. A judge will not allow 19 witnesses to all say the same thing. Their testimony is all
relevant in the legal sense, but it is a waste of time. Judge can go beyond relevance to
exclude this evidence.
Rule 403
USFRE
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.
Avant-projet de loi portant réforme au Code civil du droit de la preuve et de la prescription et du droit international privé
3041. Le tribunal peut déclarer irrecevable un élément de preuve dont l’importance paraît minime et négligeable par rapport
à la question principale en litige, si cette preuve est susceptible d’entraîner la confusion ou de causer un préjudice grave à la
partie adverse. (1988)


QC/CML Canada: judge definitely has the power to exclude evidence on the basis of the possibility it will
distort the search for truth
o This is an accepted branch of exclusionary discretion in both CVL and CML Canada
o Not codified  is a judge-made rule
The power of the Canadian judge to exclude relevant evidence on the basis of efficiency costs is less certain
o CVL: could argue that since art. 3041 does not appear in the final version of the CCQ, then no
o CML: no textual basis for the power, but they do it in practice
o Most judges would say, however, that the power to exclude relevant evidence that would impose too
many efficiency costs on the court lies in the inherent jurisdiction of the court, and within their case
management powers
See the application of the exclusionary discretion of the judge (on the basis of distortion of factfinding process):
Anderson (Guardian ad litem of) v. Erickson (1992) – CML (BCCA)
Facts: Anderson failed to stop at a stop sign (reasons unknown) and therefore got into a car accident which
severely injured him. Is suing the municipality for negligence (sign placement, road markings). At trial, evidence
that the sign had been subsequently moved and there had been no accidents since, was deemed inadmissible.
Issue: Is the evidence concerning the change in location of the stop sign admissible?
Holding: Yes – new trial ordered.
Reasoning (Wood J.A.):
 Rule on admissibility of evidence: evidence is admissible when
o 1. It is relevant
o 2. It is not excluded by any rule of evidence
Issue 1: Is the Evidence Relevant?
 Evidence is relevant if it is logically probative of either a fact in issue or a fact which itself is probative
of a fact in issue. Evidence which tends to make the existence of a fact in issue either more or less
probable is logically probative of that fact.
 This evidence is relevant because it would suggest the sign was less visible where it was previously placed
than it should have been
Issue 2: Is the Evidence Inadmissible by Virtue of Any Exclusionary Rule?
 2 exclusionary rules offered by the defendant:
 1. Policy that excludes evidence of acts of repair/improvement undertaken by a defendant subsequent to the
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occurrence giving rise to the cause of action
o Evidence may be excluded because jury may extrapolate admission of fault from it
 Would disincentivize people to make repairs to the benefit of all
o But it is not permitted to make this extrapolation in Canada – evidence of repairs is not receivable as
evidence of a consciousness (or implied admission) by the owner of his or her negligence
o As long as the jury is properly instructed not to take such evidence as an admission of liability, the
evidence is fully admissible
 2. Evidence that is relevant may be excluded if its relevance is overshadowed by its prejudicial effect
o The only potential prejudice to the defendant is the one discussed above (i.e. that jury might
improperly draw the inference that by changing the position of the stop sign, the municipality was
admitting negligence)
o Can be solved by proper instruction of the jury
Ratio: Evidence is admissible if it is 1) relevant and 2) not excluded by a rule of evidence.
Bachand on Anderson:
 The material fact the plaintiff was trying to establish was the city’s negligence in placing the stop sign where
it was (before it was moved)
 2 circumstantial facts are sought to be proved: 1. Stop sign was moved, 2. No accidents occurred since.
 Plaintiff is trying to adduce the fact in order to show the city was doing something wrong
 But defendant argues that there is a risk the jury will improperly conclude that the city admitted it was doing
something wrong  therefore, the prejudicial effect of the evidence outweighs its probative value
 Judge doesn’t buy it  can instruct the jury as to how to properly use the evidence
Regulating Inferences That May be Drawn From Circumstantial Facts: Presumptions




Relevance is about whether a circumstantial fact can bear on the adjudicator’s decision
Presumptions are about how a circumstantial fact will bear on the adjudicator’s decision
General rule: adjudicators have discretion when determining whether proof of circumstantial facts
establishes the material facts at issue (on balance of probabilities)  ex. see art. 2849 and Crispino
Presumptions are rules that depart from this general rule that the process of drawing inferences between
circumstantial and material facts is unregulated
o Presumptions are special rules that say something about conclusions that an adjudicator may or must
draw from a circumstantial fact
Cornu, Vocabulaire Juridique, “Présomption”
 Inference that the law/judge draws from a known fact to an unknown fact whose existence is rendered likely
by the known fact
 Means that the person who benefits from the presumption is freed from the obligation of proving the
unknown fact
 Many kinds: absolute/irrebuttable (no proof to the contrary helps); simple/rebuttable (proof to the contrary
lifts the presumption); of fact (made freely by the judge without being forced to by the law); of law
(presumption established by law)

The term “presumption” is often used sloppily. For example, the “presumption of innocence” of the accused
in a criminal trial
o It is not actually a presumption. Presumptions establish the link between evidence of a circumstantial
fact and a material fact.
o The presumption of innocence is a default ruling made in the absence of evidence
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
art. 2849 CCQ (at issue in Crispino) also uses “presumption” sloppily. It should have used inference,
because it is just stating the general rule that inferences between circumstantial and material facts are left to
the judge’s discretion
o This is precisely the general rule from which presumptions depart
Theoretical Basis of Presumptions



Presumptions are created on the basis of probability, efficiency, and fairness
There is an established and logical probative relationship between CF1 and MF1
Sometimes a burden of proof will be impossible for a litigant to meet – so the law recognizes the value of
giving a helping hand to a certain party in a recurrent situation
The Kinds of Presumptions
1. Presumptions of Fact
a. A presumption of fact is a rule that authorizes a judge to conclude from proof of a certain
circumstantial fact that a material fact has been proved
b. Presumptions of fact are not typically founding civil law jurisdictions
c. Ex. Fontaine
2. Presumptions of Law: oblige an adjudicator to conclude that a material fact is proven from proof of a
certain circumstantial fact.
a. Rebuttable (conditional)
i. Weak: proof of CF1 = proof of MF1 unless evidence exists in the record that tends to
disprove MF1 (only applies in the absence of evidence pointing in the other direction)
ii. Strong: proof of CF1 = proof of MF1 unless evidence exists in the record that actually
disproves, on a balance of probabilities, that MF1 occurred (may apply even if there is
evidence to the contrary).
iii. Of course, the judge retains the discretion to determine if the conditions are met in weak or
strong presumptions
b. Irrebuttable (absolute)
i. Proof of CF1 = Proof of MF1 no matter what
ii. Judge must conclude that MF1 has been proven regardless of contrary evidence (that
contrary evidence might even convince judge that MF1 did not occur, on the balance of
probabilities  but it doesn’t matter, judge is bound to make the finding the irrebuttable
presumption tells him to)
See a presumption of fact in operation in this case:
Fontaine v. British Columbia (1998) – CML (SCC, from BCCA)
Facts: Fontaine went on a hunting trip and never came back – his body was recovered, along with that of his
hunting partner, crashed in their car in a creek bed. There were severe rainstorms and terrible road conditions in
the area at the time of the accident. Fontaine’s wife is claiming compensation under BC legislation on the basis
that the driver (Fontaine’s hunting partner) presumably negligently caused the accident.
Issue: 1. When does res ipsa loquitur apply? 2. What is the effect of invoking res ipsa loquitur?
Holding: Res ipsa loquitur is no longer good law.
Reasoning (Major J.):
 Res Ipsa Loquitur (Lat. “the thing speaks for itself”) – doctrine applies when these circumstantial facts are
proven (1 & 2):
1. The thing that inflicted the damage was under the sole control of the defendant (or of someone for
whom he is responsible/whom he has a right to control)
2. The occurrence is such that it would not have happened without negligence
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3. There must be no evidence as to why/how the occurrence took place
If these conditions are satisfied, it follows, on a balance of probability, that the defendant was negligent and
is thus liable for the damage (i.e. circumstantial evidence constitutes reasonable evidence of negligence)
 N.B. If there is any evidence as to how occurrence took place, the appeal to res ipsa loquitur is inappropriate
 question of defendant’s negligence must be determined on that evidence
 Res ipsa loquitur is a permissible fact inference; judge decides if it can be made, jury decides if it will (it
is not bound to find negligence on the basis of RIL)
 If defendant produces a reasonable explanation that is as consistent with no negligence as the res ipsa
loquitur is with negligence  neutralizes the inference of negligence and plaintiff’s case must fail because
they did not discharge their burden of proof
 The law would be better served if the maxim was treated as expired: circumstantial evidence must be
weighed with direct evidence to determine whether the plaintiff has established a prima facie case for
negligence against defendant
 In this case: the circumstantial evidence (tires were worn, car left road fast enough to break through trees) is
not strong enough to raise the presumption v. the defendant; the bad weather means the accident could
equally have happened without negligence
Ratio: Res ipsa loquitur is no longer good law – circumstantial evidence will be treated as supporting a
reasonable inference if it convinces the trier of fact on a balance of probabilities.

See the way an irrebuttable presumption is made rebuttable in this CVL case:
art. 2847
CCQ
A legal presumption is one that is specially attached by law to certain facts; it exempts the person in
whose favour it exists from making any other proof.
A presumption concerning presumed facts is simple and may be rebutted by proof to the contrary; a
presumption concerning deemed facts is absolute and irrebuttable.
Banque Nationale du Canada v. Soracchi – CVL (QCA)
Facts: S and her husband were getting a divorce; he claimed he didn’t have enough money to pay her child
support. She sued for it, and won – judgement allocated her most of the family’s assets. Husband had a line of
credit with the Bank which he was then unable to pay off. Bank suing ex-wife with a Paulian action: i.e. Bank
says judgement giving her the assets was inopposable to them because she knew that the judgement would
render her husband insolvent with respect to his other obligations (art. 1631). arts. 1632/2847 thus create an
irrebuttable presumption of fraud on the part of the ex-wife.
Issue: Do arts. 1631, 1632, and 2847 create an irrebuttable presumption of fraud on the part of a creditor who
knew that the onerous contract made with a debtor would render that debtor insolvent?
Holding: No, with dissent.
Reasoning:
Majority – Forget J.
 According to the Bank’s reading of arts. 1631, 1632, and 2847, all they have to do is establish that Mrs.
Soracchi knew that her husband was or would be rendered insolvent by the divorce judgement  creates an
irrebuttable presumption of her fraudulent intent, which makes divorce judgment inopposable to them (i.e.
they can seize what she got from her ex-husband) – because art. 1632 uses “deemed”
 It is clear that Mrs. S knew her husband had no other assets except those she was taking
 But it is also clear that Mrs. S was acting in good faith (divorce proceedings and judgement were executed
without knowledge of the Bank’s actions or rights, Mrs. S was just getting what she was owed and not more,
the transfer agreement between husband and Mrs. S doesn’t try to hide what it’s doing)
 Can the presumption of fraud found in arts. 1632/2847 be rebutted by the evidence that Mrs. S was acting in
good faith? Yes:
o If the presumption is irrebuttable, it changes the essence of a Paulian action, which is based on the
dishonesty/bad faith of the creditor (knowledge of insolvency doesn’t necessarily entail bad faith)
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o This same law in the CcLC made the presumption rebuttable
o It’s not certain that art. 2847 is a rule of law – may just be a rule of interpretation
 J. concludes that there was no reason for the legislator to change the law to make it such that even if there is
clear proof to the contrary, a creditor must be deemed fraudulent if they knew of the insolvency of their
debtor and still contracted with them
Dissent – Chamberland J.
 The legislator expressed himself clearly – art. 2847 is a rule of law that must be followed
 Since art. 1632 uses the word “deemed”, the presumption it creates is irrebuttable
 Not for judge to re-write text of Code, regardless of whether or not this would improve it and make it fairer
o This is going to make every article in the Code that uses “presumed” or “deemed” uncertain (i.e.
cannot know if they create rebuttable or irrebuttable presumptions)
Ratio: art. 2847 is a rule of interpretation, not of law. Even if the legislator uses the word “deemed” when it
creates a presumption, that presumption may still be rebuttable in certain cases which call for it.
Bachand on Soracchi:
 The court has to construe art. 2847 as a rule of interpretation rather than law because they have clear
evidence before them of Mrs. S’s good faith – they know she did not act fraudulently
 The problem is that art. 2847 gave us a clear rule to discover when a presumption in the CCQ is rebuttable
(use of the word “presumed”) or irrebuttable (use of the word “deemed”)  this is now, after this case, just a
guide
 The problem with absolute presumptions is that they have the potential to distort the factfinding process
How to Characterize a Presumption



It’s hard to know, essentially. In CVL, the rule characterizing a presumption of law as rebuttable or
irrebuttable has been turned into a guide by Soracchi case.
In CML, to know if a rebuttable presumption is weak or strong have to reason by analogy to precedent
(Pencore v. Pencore)
The approach in the US is to say that a presumption is weak unless it is otherwise indicated in a statute:
Rule 301
USFRE
Presumptions in General in Civil Actions and Proceedings
In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a
presumption imposes on the party against whom it is directed the burden of going forward with evidence
to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the
risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.
III. “HARD” EVIDENCE, AS OPPOSED TO OPINIONS
The question we are dealing with is still as follows: what facts can the adjudicator use to make a decision? So
far, the conclusions have been:
1. Evidence relating to material facts
2. Evidence relating to circumstantial facts, if it is:
a. Relevant
b. Not excluded by any rule of law
Hard Facts v. Opinions


Hard facts: things directly perceived by the witness
o Ex. X smelled like booze and could not keep his balance
Opinion: statements about what inferences or conclusions should or should not be drawn from such facts
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o
Ex. X was drunk
Opinion Evidence – Lay Witnesses
The Common Law:



Traditional Common Law Exclusionary Rule on Opinion Evidence: opinion evidence is inadmissible
o Unless an exception applies
Why? The theory is as follows:
o Drawing inferences from facts is the job of the judge/jury
o Argument that opinions merely cloud the fact-finding process
o Risk that the jury might not be able to tell the difference between fact and opinion
The reality does not correspond with the theory, and has led to reform of the traditional exclusionary rule of
opinion evidence:
o This exclusionary rule became very hard to apply because it’s difficult, if not impossible, to
distinguish fact from opinion
o Risks decreasing the accuracy of the fact-finding process by excluding important evidence
o It’s also difficult for the witness to stick to hard facts – so less accurate testimony results
Broun, K.S. (ed), McCormick on Evidence, “Title 11: The Opinion Rule”
 The opinion rule: the law prefers that a witness testify to facts based on personal knowledge, rather than
opinions inferred from such facts
 Canon starting in the mid-1800s that witnesses must restrict their testimony to recitations of facts and avoid
inferences, conclusions, or opinions
o This rule is clumsy because the distinction between fact and opinion is one of degree
o Any conceivable statement – no matter how factual it appears – is in some measure the product of
inference as well as observation and memory
 Rule has been relaxed in the CML – now court can admit lay opinion that is “helpful” to the trier of fact
o It is preferable that the witness stick to facts – is more convincing
o But when it is impractical for the witness to verbalize all the data supporting an inference, the
preference for hard facts yields and opinion is admissible
 For opinion to be admissible in court: the witness must have personal knowledge of matter forming
the basis of testimony of opinion; the testimony must be based rationally on the witness’s perception;
the opinion must be helpful to the jury (principal test)
 A proffered lay opinion can not only be excluded for failure to satisfy above requirements; can also be
barred if topic of the testimony is one necessitating expert testimony
o Rationale for lay opinion: impractical to verbalize data
o Rationale for expert opinion: witness can draw a more reliable inference from primary data
 Used to be a rule against opinion given on “ultimate facts in issue”  has also been relaxed
 N.B. also at common law, courts do not allow opinion on questions of law



CML Canada reformed the strict rules of inadmissibility of opinion evidence in R. v. Graat
This case concludes that opinion evidence is admissible when:
o The facts from which the witness received an impression were too evanescent in their nature to be
recollected or too complicated to be separately and distinctly narrated
o Opinion evidence is admissible when it is helpful to the factfinder to have the opinions of witnesses
that are based closely on their own perceptions
 This criteria of helpfulness is key
This case moves from a strict, rule-based approach to a much more discretionary rule on the admissibility of
opinion evidence that gives more power to the judge
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R. v. Graat (1982) – CML (SCC)
Facts: 2 police officers saw Mr. Graat driving erratically and pulled him over; he smelled of alcohol, had
bloodshot eyes, was staggering, etc; no opportunity to do a breathalyzer. G was charged with drunk driving – at
trial, both police officers testified that they thought G was drunk. Appeal by accused to exclude such evidence as
inadmissible because it constitutes opinion.
Issue: Can the court admit opinion evidence on the very question to be decided? Holding: Yes.
Reasoning (Dickson J.):
 2 categories of opinion evidence have traditionally been admissible:
1. Cases calling for expert testimony
2. Non-expert opinion on matter requiring no special knowledge, where it is virtually impossible to
separate witness’ inference from facts on which the inference is based
 The line between fact and opinion is not clear
 Broad principles of admissibility are 1) Relevance and 2) Exclusion on basis of law or policy
 No reason in principle, policy, or common sense why a lay witness should not be permitted to testify in the
form of an opinion if, by doing so, he is able to more accurately express the facts he perceived
o i.e. when “the facts from which a witness received an impression were too evanescent in their
nature to be recollected, or too complicated to be separately and distinctly narrated”  then a
witness can state his opinion
 In determining whether or not an opinion is admissible, trial judge must necessarily exercise a large measure
of discretion
 Whether or not the opinion evidence is accepted is another matter: the weight of the evidence is a matter for
the judge/jury
Ratio: Opinion evidence on ultimate facts in issue is acceptable if the facts on which an observation is based are
too complicated to be narrated separately and distinctly.
Bachand on Graat:
 This case started the general move in Canada towards a principled, discretion-based approach to the
admissibility of evidence (away from the complex, pigeon-hole approach)
 Is an approach that gives more power to the judge, but also simplifies the law of evidence as a whole
 The new approach started by this case places more importance on efficiency and access to justice
The US Rule represents the state of the law in most CML jurisdictions:
Opinion Testimony by Lay Witnesses
Rule 701
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is
USFRE
limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
The Civil Law in Quebec:


Just looking at the Code doesn’t give a complete picture of the admissibility of opinion evidence by lay
witnesses in Quebec
It looks like it codifies a strict exclusionary rule of opinion evidence by lay witnesses:
art. 2843
CCQ


Testimony is a statement whereby a person relates facts of which he has personal knowledge or whereby
an expert gives his opinion.
In practice, this provision is not interpreted so strictly
QC CVL follows a rule that is closer to the one found in Graat
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The Civil Law on the Continent:


Not much law on opinion evidence; has to do with the structure of the civil trial and the role of the judge
There is no jury; judge takes all the evidence, questions witnesses – doesn’t need to differentiate for the jury
what they can use and what they can’t
Opinion Evidence – Expert Witnesses


Expert opinion is an inference from facts drawn by reference to a specialized body of knowledge that is not
available to the adjudicator
There are two big questions to consider in the topic of expert evidence:
o 1. Under what circumstances should expert opinion be admissible?
o 2. How should expert evidence be presented to the court?
1. Under What Circumstances Should Expert Opinion Be Admissible?
a. Necessity: The Expert’s Opinion Must Be NECESSARY


The threshold question: is expert opinion needed to assess the connection between the circumstantial facts
and the facts sought to be proved?
Expert evidence is admissible where non-specialists would not be able to draw reasonably accurate
inferences using general knowledge/common sense
R. v. Mohan (1994) – CML (SCC, from OCA)
Facts: Mohan is a doctor; charged with sexually assaulting 4 of his young female patients. Defence wanted to
call an expert (psychiatrist) to testify that the perpetrator of such offences would exhibit particular personality
traits, which the accused did not share.
Issue: Is expert evidence admissible to show that the character traits of an accused person do not fit the
psychological profile of a perpetrator of such crimes as the ones charged? Holding: In these circumstances, no.
Reasoning (Sopinka J.):
 Admission of expert evidence depends on the application of the following criteria:
1. Relevance (general admissibility criterion)
2. Necessity in assisting the trier of fact (admissibility criterion for expert opinion)
3. The absence of any exclusionary rule (general admissibility criterion)
4. A properly qualified expert (admissibility criterion for expert opinion)
1. Relevance
 Relevance is a threshold requirement for the admissibility of all evidence; is a question of law and is to be
decided by the judge
 Evidence is prima facie admissible if it is so related to a fact in issue that it tends to establish it  but this is
not the end of the inquiry
 Must ask whether the value of the evidence is worth what it costs (step 3)  better dealt with under general
exclusionary rule for evidence which is prejudicial, time-wasting, misleading (etc)
o There is danger that expert evidence will be given more weight than it is due by the jury  must be
considered whether the jury will be confused/overborne by expert opinion when deciding whether or
not to admit it
2. Necessity
 Expert’s function: to provide the judge and jury with a ready-made inference which the judge and
jury, due to the technical nature of the facts, is unable to formulate
o The standard is not whether the expert opinion is “helpful” to the trier of fact
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The standard is whether the expert opinion is “necessary” – i.e. it provides information which
is likely outside the experience/knowledge of judge/jury
 Too liberal an approach risks making a trial nothing more than a contest of experts, with trier of fact
acting as a referee
4. Properly Qualified Expert – self-explanatory
3. Absence of Any Exclusionary Rule – applied to this case
 Necessary to consider here the limitations imposed by the rules relating to character evidence (above and
beyond those relating to expert opinion)
 General rule: character of the accused can only be evidenced by general reputation
 Exception: when particular disposition/tendency in issue is characteristic of an abnormal group, the
characteristics of which fall within the expertise of a psychiatrist
 Number of different scenarios exist:
1. Ordinary crime/ordinary person  expert evidence is irrelevant and inadmissible
2. Ordinary crime/extraordinary person  evidence is probative and admissible if the extraordinary
characteristic tends to show accused would not commit ordinary crime
3. Extraordinary crime/ordinary person  evidence is admissible if it shows that the crime could likely
only be committed by a person possessing specific characteristics that the accused does not have
(this is in dispute in the case at bar)
4. Extraordinary crime/extraordinary person  same as case #3, provided that the difference in the
abnormalities tends to exclude the accused from the probable group of perpetrators
 N.B. the word “abnormal” is not a good one to use  Sopinka J. prefers “distinctive”
 Categorization of crimes into “ordinary” and “extraordinary” and of people into “distinctive” and “not
distinctive” is the responsibility of the judge, not the expert  governed by common sense and experience
 In the case at bar, the evidence is inadmissible; the crimes are not extraordinary and neither is the accused.
Conviction upheld.
Ratio: Expert opinion evidence is admissible where it is a) relevant, b) necessary, c) not excluded by any rule of
law, and d) delivered by a qualified expert.
o
Bachand on Mohan:
 Sopinka uses the word “necessity” a lot. But Bachand thinks that the problem here is more a problem of
reliability  Sopinka doesn’t really buy that it’s possible to create a psychological profile for a perpetrator
of sexual assault who is also a doctor

In contrast to Canada’s necessity standard, the U.S. uses a helpfulness standard (see Kumho Tire)  if the
expert can help the fact-finder draw more accurate conclusion than the fact-finder could draw on his own,
expert opinion is admissible
Rule 702
USFRE



Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Canada sees this standard of “assistance” as too low, and thus posing efficiency problems.
Advantages of more permissive criterion of admissibility:
o More accurate fact-finding
Disadvantages of more permissive criterion of admissibility:
o Losses in efficiency caused by competing experts
o Costs
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o
o
See Sopinka in Mohan: may actually decrease the quality of the fact-finding because the jury may be
overly impressed with the expert evidence and give it undue weight
It is possible that the admission of expert evidence can actually distort the search for truth, and
decrease the legitimacy of the fact-finding process because it intrudes on the role of the judge or jury
to make inferences based on the facts
See this case for the way that expert evidence can delegitimize the court’s search for truth:
R. v. Adams (1996) – CML (Court of Appeal, Criminal Division, England)
Facts: Adams was charged with the rape of Miss M. DNA evidence linking Adams to rape was the foundation of
the Crown’s case. The defence brought expert testimony concerning Bayes’ Theorem, a statistical tool for
analyzing non-mathematical events in terms of mathematical probability, to discredit the DNA evidence. The
trial judge gave the jury instructions on how to use Bayes’ Theorem. Adams contending the judge thus
misdirected the jury.
Issue: Should the judge have thus directed the jury? Holding: No. Conviction quashed.
Reasoning (Rose L.J.):
 N.B. This was the first case in which the Crown had relied exclusively upon DNA evidence
 Court has “grave doubt” as to whether the defence should have been permitted, without objection from the
prosecution, to lead before the jury evidence of Bayes’ Theorem
 Trespasses on province of jury: how they evaluate the relationship between all the pieces of evidence
o The apparently objective numerical figures in the theorem conceal the element of judgment on
which it entirely depends
o The attempt to determine guilt or innocence on the basis of a mathematical formula is simply
inappropriate to the jury’s task
o Jury must use common sense/knowledge of the world to assess the totality of the evidence before
them (cannot isolate each piece and assign it a probability)
 The judge thus misdirected the jury to use it (kind of forgot to tell them about the other ways in which they
should be assessing evidence)  their verdict cannot be regarded as safe and must be quashed.
Ratio: Expert testimony must be admitted with great care – its use can entirely prejudice a case.
Bachand on Adams:
 Mathematical probability is not appropriate for use by the jury to complete their task, even if the math is
correct and reliable
 It’s getting close to letting computers decide the guilt or innocence of people on the balance of probabilities
o This strikes at the legitimacy of the trial process
o The adjudicator/fact-finder is supposed to use common sense and human experience to make their
decision
 Expert opinion should only be used when common sense is out of its depth in making a good choice
b. Reliability: the Expert’s Opinion Must Be RELIABLE
N.B. We are still at the admissibility stage here – we are assessing whether the expert opinion is reliable enough
to even consider, not whether it should be accorded a lot of weight in the making of the final decision



The specialized knowledge which the expert comes to court to testify about must exist and be sufficiently
reliable
The difficulty lies in how to test this reliability?
Frye Approach (out of favour)
o Theory is sufficiently reliable if it has gained general acceptance by the community of specialists
to which the expert belongs
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The judge defers to a group of specialists to assess the reliability of the expert’s evidence – he is not
testing it himself
o Problems: marginalization of new science? Deference to a group of specialists who everyone else
thinks is a bunch of quacks (ex. chiropractors!)?
Daubert Approach (currently in favour)  see Kumho Tire.
o The court assess the reliability of the theory independently: general acceptance of the theory by the
community of experts becomes one factor among many to consider (others = error rates, ability to
test the results, etc)
o This approach has been affirmed in Canada without question (See Mohan; R. v. J.-L. J. SCC 2000)
o Problems with this approach: how is the trial judge supposed to assess the reliability of the theory
better than the community of specialists?
 Often this test devolves into the Frye test once again, and deference to the community of
specialists is granted
o

Kumho Tire Co. v. Carmichael (1999) – CML (US Supreme Court)
Facts: Carmichael was driving; blew out a tire – 1 passenger died and many other injured in resulting accident.
Suing Kumho (manufacturer/distributor of tire) with the claim that a defect in the tire caused the blowout.
Brought in evidence an expert in tire failure analysis – his testimony was excluded as unreliable. Appeal.
Issue: How can the reliability of non-scientific expert testimony be examined by the trial judge?
Holding: In a manner similar to scientific expert testimony, using the criteria in the Daubert case, which are not
definitive but can be applied flexibly according to the particular circumstances of the case.
Reasoning (Breyer J.):
 Daubert v. Merrell Dow Pharmaceuticals (1993)
o Scientific expert testimony is only admissible if it both relevant and reliable
o Reliability of scientific expert opinion can be determined by (not an exhaustive checklist/test):
1. Testing: whether a theory or technique can be (and has been) tested
2. Peer Review: has theory been subjected to peer review/publication
3. Error Rates: is there a high known or potential rate of error in the theory and are
there standards controlling the technique’s operation
4. General acceptability in the relevant scientific community
o Daubert’s general holding = trial judge’s “gatekeeping” function with respect to the reliability
of expert testimony
 Daubert’s holding does not apply only to scientific testimony, but also testimony based on “technical” or
“other specialized” knowledge (see US FRE 702)  trial judge is gatekeeper of reliability in all situations
where expert evidence is offered
 Also, trial judge may use any or all of Daubert’s 4 analytical factors to determine reliability when doing so
will help determine that testimony’s reliability (i.e. when they function as reasonable measures of the
reliability of expert testimony)
o But the test of reliability is flexible – Daubert’s list of specific factors does not necessarily apply
to all experts in every case
 Law grants district court broad latitude to decide how to determine reliability (same latitude as it enjoys with
respect to the final reliability determination)
 Gatekeeping inquiry must be tied to the facts of a particular case
 In this case, tire expert’s theory/methodology not reliable enough with respect to the particular facts of the
case  his evidence is inadmissible
Ratio: Trial judge functions as the gatekeeper for reliability of all expert testimony, which can be assessed
according to the factors listed in Daubert, or any other reasonable measure.
c. Qualification: the Expert Testifying must be QUALIFIED
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


This is pretty self-explanatory.
Is the expert put forth by the parties sufficiently qualified to make a compelling use of the specialized
knowledge they have?
It’s a different question from that inquiring into the basic reliability of the theory/methodology.
2. How Should Expert Evidence Be Presented to the Court?
Civil Law Approach (excluding Quebec): Court-Appointed Experts






The court appoints an expert; most often at the request of a party, but court can do it of its own motion
Expert is bound to remain independent and impartial; is practically an officer of the court
The court defines the expert’s mission, the court (with the help of the parties) puts the questions to the expert
Expert makes a study, prepares a draft report, and circulates it to the parties
o Parties can comment on the draft report
A final, non-binding report is then issued
o Non-binding: fact-finding is not delegated to an expert
Fees of experts will be borne by the party against whom costs are ordered (generally the losing party)  are
not paid by the state
Common Law Approach (including Quebec): Party-Appointed Experts







Parties hire experts: as long as the rules of admissibility of expert evidence are fulfilled, they can shop for
experts (i.e. shop for the opinion that most helps their case)
Parties brief the experts, they coach them – experts’ reports are prepared in close preparation with the party’s
lawyers  experts become a part of the team of advocates
Officially, however, experts are under a duty of impartiality to the court
The parties exchange expert reports to prepare for cross-examination. The experts appear in court and give
testimony (this is the expert evidence, not the report) and are cross-examined
Judges are not bound by the experts’ findings, of course (because there will be contradictory findings)
Experts’ fees are part of the costs awarded at the end of the trial
Quebec follows this model completely: it is immersed in the adversarial system. Like CML judges, QC
judges have the power to appoint experts for the court (art. 414 CCP), but they never use it.
Pros and Cons of the Systems for the Ascertainment of Truth
Court-Appointed Experts
Party-Appointed Experts
+ Independence and impartiality of the expert is
+ More opportunity to poke holes in faulty expert
increased
arguments
- The court isn’t exposed to all the theories applicable
+ The different theories in the experts’ field will be
to a case (can fix this by court-appointing more than 1 represented
expert and increasing the confrontation between them) - Huge skewing of the truth created by the
identification of the expert’s interests with those of the
party who hired them (huge bias)
- Favours the party with more money to pay an expert
Pros and Cons of the Systems for the Efficiency of the Process
Court-Appointed Experts
Party-Appointed Experts
+ Only 1 expert needs to be paid (although for the
comment on the expert’s draft report, parties are
< … crickets … >
getting their own experts to work in the background)
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+ Less risk of things getting totally out of control
(length of report, cross-examination of expert)
This extract is about the CML party-appointed system: its weaknesses and how it can be improved:
Broun, K.S. (ed.), McCormick on Evidence, “Title 17: Proposals for Improvement of the Practice Relating
to Expert Testimony”
Weaknesses of the Practice Relating to Expert Testimony
 Adversarial system of trial: opposing parties have the responsibility for finding/presenting proof (not the
judge)  leads to them picking their own experts
o They do not pick the best scientist – they pick the best witness
 Also, the method of showcasing scientific testimony (by hypothetical question-answer) is inappropriate to
the dispassionate presentation of technical data
Potential Remedies
 Use of trial judges’ common law power to call experts (“court-appointed experts”)
o The existence of this power is well-settled
o But it is rarely used – adversarial system is too ingrained
 Would lead to more impartial experts; possibility for experts who disagree to get together and work out an
agreement or narrow their disagreements
 Critique of the critique? No such thing as a truly impartial expert; the opinions of court-appointed experts
may be given too much emphasis by triers of fact (or jury)
Middle-Ground Solutions For Expert Intervention in Civil Litigation
1. Judge can order that only 1 expert give evidence if both parties express a wish to get experts to testify
a. England has given this power to the judge:
England
Civil
Procedure
Rules, Part
35.7
(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct
that the evidence on that issue is to be given by one expert only.
(2) The parties wishing to submit the expert evidence are called "the instructing parties".
(3) Where the instructing parties cannot agree who should be the expert, the court may - (a) select the expert from a list prepared or identified by the instructing parties; or
(b) direct that the expert be selected in such other manner as the court may direct.
b. This is a major abridgement of what was previously thought to be a fundamental right of the parties
to appoint their own experts
c. Judges in England are actually using this provision – can thus control the scope and the costs of
expertise
2. Elimination of examination-in-chief of the expert (the report functions as the evidence) and limit crossexamination on that report
3. Give courts the power to order a meeting of the experts so they can work out what they have as common
ground, and what they disagree on
a. This allows the experts to narrow the issues on which they have to decide
b. Parties can still appoint their own experts
art. 413.1
CCP
Where the parties have each communicated an expert's report and the reports are contradictory, the court
may, at any stage of the proceeding, even on its own initiative, order the experts concerned to meet, in
the presence of the parties and attorneys who wish to attend, and reconcile their opinions, identify the
points which divide them and report to the court and to the parties within the time determined by the
court.
4. Increase the ethical imperatives operating on lawyers and experts:
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Glenn R. Anderson, “Clear and Partial Danger: Defending Ourselves Against the Threat of Expert Bias”
 The independence and impartiality of experts are the cornerstones of expert testimony and its helpfulness in
fact-finding processes
 But we have an adversarial system – parties appoint the experts that testify before the court  strong
incentive for experts to become advocates
 And courts may not have the competence to evaluate the reliability and/or weight of expert opinion simply
because they don’t – by definition – have the requisite knowledge/experience
 Expert evidence may thus mislead, confuse, distort the fact-finding process, create distracting side issues,
excessive costs, and unnecessary delays
Dangers of Expert Testimony
 Dishonest experts: experts who intentionally use invalid science to support their “client’s” view  unethical
lawyers are to blame
 Biased experts: although primary duty of experts is supposed to be to the court, experts do not view their
role as aiding judges/jury to understand evidence or make correct findings of fact
o They focus on/accentuate evidence that is helpful to the litigants retaining them, they emphasize the
weaknesses in opposing expert’s evidence, they magnify matters in dispute, say consensus exists
where there is none, disregard alternate explanations
Enhancing Impartiality
 Impartiality must be promoted to all the participants in the civil justice system
 Experts: must be educated in the proper role of experts
 Procedural rule makers: must make overarching objective of civil procedure the search for truth (possibility
of court-appointed experts – whose use is allowed but anomalous in Canada)
 Lawyers: need to be reoriented to abide by their preeminent duty to the court  must be explicitly directed
to not knowingly perpetrate a fraud on the Court by false evidence
o Must have a good faith basis for believing that an expert is not dishonest/biased
 Judges: expert bias should be considered a matter of admissibility, not merely weight; trial judges who find
experts biased should explicitly say so in their reasons (deterrence); could deny/award costs for misuse of
expert evidence
 Professional societies: societies to which experts belong should regulate their experts’ testimony by charging
them with ethical violations if they testify to things that are not true
5. Keep party-appointed experts, but increase transparency and access to the expert by the party’s opponent
a. Experts should only be allowed to testify if they were retained before they expressed an opinion
b. All communications between parties and their experts should be available to the other party
i. This way, either party could call each others’ experts as witnesses
c. This is creative approach, but it’s not that practical
6. Going further: could create a court-appointed panel of experts with the power to decide the issue
(delegation of fact-finding). Critique:
a. Selection of experts becomes central to the outcome
b. Panels may marginalize new innovations
c. Can the judiciary competently choose a panel?
The problem of what to do with expert opinion is very current and is going to be a big issue in the near future:
“Latimer Owed Explanation, Judge Suggests” (National Post)
 Binnie J. speaking – outside of his role as judge – about the judiciary’s scientific illiteracy
o Is a problem because of the growing number of science-based disputes coming before the courts
 Raised a possible solution in the form of court-appointed, neutral scientists whose role it is to advise the
courts independently (so judges would not have to rely on competing expert witnesses)
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IV. FACTS THAT NEED NOT BE PROVED




The underlying assumption so far has been that conclusions on adjudicative facts must be based on evidence
adduced at trial (on material or circumstantial facts)
But in some limited circumstances, the adjudicator is allowed to rely on information not proven nor
debated at trial  these are exceptions to the “principe de la contradiction”
o Principe de la contradiction: parties must be given a chance to comment on every piece of
evidence on which the adjudicator bases his decision
The problem with a judge using information that was not presented at trial is that the party against whom the
information is used did not get a chance to comment on the evidence, contest its reliability, etc.
There are two exceptions to the principe de la contradiction:
o a. Formally admitted facts
o b. General facts that cannot reasonable be disputed.
a. Formally Admitted Facts



Formally admitted facts are facts which both parties acknowledge to be true; they will also be taken as
true by the judge and used accordingly
o N.B. Judges are bound by the parties’ formal admissions
This implies that – at least in civil matters – the state has no independent interest in establishing the true
facts of the case  the parties’ truth is the truth that matters
This has an efficiency aspect – obviously do not need to debate an admitted fact at trial
art. 2852
CCQ
An admission made by a party to a dispute or by an authorized mandatary makes proof against him if it is
made in the proceeding in which it is invoked. It may not be revoked, unless it is proved to have been
made through an error of fact.
The probative force of any other admission is left to the appraisal of the court.
b. General Facts that Cannot Reasonably Be Disputed: the Doctrine of Judicial Notice

It is appropriate to base adjudicative decisions on general facts, because adjudication would not be possible
if the principe de la contradiction was absolute
o Judges have to rely on general knowledge
Cf. this rule and that enunciated by the SCC in R. v. Spence:
Judicial Notice of Adjudicative Facts
Rule 201
(a) Scope of rule: This rule governs only judicial notice of adjudicative facts.
USFRE
(b) Kinds of facts: A judicially noticed fact must be one not subject to reasonable dispute in that it is
either
(1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.
(c) When discretionary: A court may take judicial notice, whether requested or not.
(d) When mandatory: A court shall take judicial notice if requested by a party and supplied with the
necessary information.
(e) Opportunity to be heard: A party is entitled upon timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification,
the request may be made after judicial notice has been taken.
(f) Time of taking notice: Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury: In a civil action or proceeding, the court shall instruct the jury to accept as conclusive
any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not
required to, accept as conclusive any fact judicially noticed.
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

Note that what can be judicially noticed changes from place to place and from time to time
This doctrine is also not limited to general knowledge – see (b)(2)
art. 2806 CCQ
art. 2808 CCQ


No proof is required of a matter of which judicial notice shall be taken.
Judicial notice shall be taken of any fact that is so generally known that it cannot reasonably be
questioned.
This seems narrower than Rule 201, in that it doesn’t discuss information that can be accurately and readily
determined  but in practice, it is applied the same way
Civil law jurisdictions other than Quebec do not really have an explicit doctrine of judicial notice, but the
result in practice is similar
Try to analyze this case under the doctrine of judicial notice: it’s hard, because it’s not about judicial notice AT
ALL. But whatever, no big.
R. v. S. (R.D.) (1997) – CML (SCC from NSCA)
Facts: RDS was arrested for assaulting a police officer who was arresting his cousin. He and the police officer
were the only witnesses, and gave opposite renditions of the facts. Trial Judge Sparks found RDS more credible,
and went on to state that the Halifax police have been known to mislead the court, overreact to racial minorities,
and possess an impliedly racist “attitude” to non-white people.
Issue: Do the Judge’s comments create a reasonable apprehension of bias in her decision (i.e. suggest that she
did not possess impartiality in making her decision)? Holding: No, with dissent.
Reasoning:
Dissent: Major, Sopinka JJ. and Lamer C.J. (Agreement with Cory J. on test for bias; Disagreement with
majority on outcome  Judge Sparks biased)
 Sparks J. stereotyped police officers and applied the stereotype to the case in order to make a decision (i.e.
concluded that RDS was more credible and police officer was racist/lying)
 Rule of evidence: cannot be introduced to show a propensity
 Impartiality: court does not look at mind of judge, but the impression which would be given to other people
 In this case, the impression is bad. Judges are allowed to use their life experience, but they cannot judge
credibility based on irrelevant witness characteristics (ex. occupation)
o All witnesses must be placed on equal footing before the court
Majority: L’Heureux-Dubé, McLachlin JJ., agreed with by Gonthier and La Forest JJ. on disposition and the use
of social context in judging (Judge Sparks unbiased, comments justified)
 There is a presumption of impartiality in favour of judges  high threshold for successful allegation of
perceived judicial bias
 Test for reasonable apprehension of bias: apprehension of bias must be a reasonable one, held by reasonable
and right-minded persons, applying themselves to the question and obtaining thereon the required
information. What would an informed person, viewing the matter realistically and practically – and having
thought the matter through – conclude? Person must be familiar with the circumstances of the case.
 There is no such thing as judicial neutrality  everyone has opinions, sympathies, preconceptions –
impartiality requires, however, that the judge nevertheless be free to entertain/act upon different points of
view with an open mind
 Judge must be aware of context in which a situation occurred; judicial inquiry into context provides
the requisite background for the interpretation and application of the law  judge can take notice of
actual racism known to exist in a society
o This is what Sparks did – her comments are justified and betray no bias
Concurrence: Cory and Iacobucci JJ., agreed with by Gonthier and La Forest JJ. on disposition and exposition
of precedent/test for bias (Judge Sparks unbiased, but comments close to the line)
 Impartiality: a state of mind in which the adjudicator is disinterested in the outcome and is open to
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persuasion by the evidence and submissions. Bias: a state of mind that is in some way predisposed to a
particular result or is closed with regard to particular issues
 Assessment of credibility is a very subjective process that deals with a lot of intangibles (judge must be very
careful to appear neutral in assessing witness credibility); but presuppositions cannot be used to assess it
o Only after a witness has testified can the finding of credibility be made  all witnesses are given
equal opportunity to establish their credibility
 Judge Sparks’ comments were inappropriate; they showed an offensive preconception
 But they do not give rise to a reasonable apprehension of bias – she explicitly stated that she was not saying
that the officer in this case was lying or overreacting
Ratio: Judge can use their knowledge of social context to help them interpret and apply the law.
Bachand on RDS:
 Note that the case was not presented on the basis of judicial notice.
 The fact of which Justice Sparks takes “judicial notice” is the important problem of racism among Halifax
cops, which was not proven at trial
o Is this fact a judicially noticeable fact?
o The SCC split as to the propriety of using that general fact in order to make her decision
 Bachand says that recognizing this fact as a general proposition doesn’t pose that much of a problem for the
SCC – they are willing to take it as a judicially noticeable fact
o They see it as appropriate for a judge to use their social context to make their decisions
 The problem is the judge’s use of this fact – she uses it to judge witness credibility
 Used for these purposes, the fact of the generally-known racism among Halifax cops is actually irrelevant
o Facts are only relevant when they tend to increase or decrease the likelihood of a fact in contention
 In this case, just because most cops are racist doesn’t mean this one was – it would have to be established on
the evidence
 This case, Bachand says, would be easier to understand if it had been framed under the rubric of relevance
E. INFORMATION RELATING TO NORMATIVE FACTS (TO THE CONTENTS OF LEGAL RULES)




This section of the course considers information relied on by the adjudicator while drawing conclusions of
law – judge is constrained in drawing conclusions of law, just as he is when drawing conclusions of fact
Judge has to rely on formal legal sources (Constitution, statute, common law) and is constrained by these
But the judge can also rely on another category of information when enunciating legal rules
o Legislative facts
o Can rely on legislative facts ONLY when formal legal rules are nonexistent or incomplete
We will consider legislative facts first, and then formal legal sources afterwards.
I. LEGISLATIVE FACTS
What are Legislative Facts?




Legislative facts are socio-economic facts about the world outside the courtroom that adjudicators rely
on when drawing conclusions of law
N.B. Legislative facts are defined functionally, according to their use not their nature – a legislative
fact in one case might be an adjudicative fact in another
Traditionally, the judge was never acknowledged as making law
o In CML, the judge discovered the meaning of the law
o In CVL, the meaning of the law was understood as “self-evident” and objectively discoverable
In the modern conception of legal interpretation, it is acknowledged that judges have to make the law in
the gaps where formal law doesn’t exist or is unclear
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o
o
o
And they makes that law with the social context in which the law operates in mind
In Canada, we are open to this interpretative approach and we acknowledge its legitimacy
It is not the case everywhere: in France, no one talks about this aspect of the judge’s role
What Are the Difficulties Associated with the Use of Legislative Facts in Adjudication?

In the common law (including Quebec), we allow judges to take judicial notice of legislative facts
o It is arguably necessary to let judges do so – they have a responsibility to:
 Get the law right (because the formulation of the law affects the disposition of future cases)
 We do not want judges’ hands tied by the parties on the law (different than the
parties’ power over the facts – see formal admissions)
 To interpret ambiguous statutes
 To update the common law according to changing social conditions
o But the problem is that the court is thereby relying on facts which the parties have not had an
opportunity to refute – exception to the principe de la contradiction
 And the legislative facts which the court can notice to interpret the law are often nowhere
near indisputable
 The court risks getting these legislative facts wrong and being unfair to litigants (both
present and future), society as a whole
 There is no mechanism with which to catch mistakes – the court could mishandle the
information, and there is no check on that mishandling (see Askov)
o Possible solution? Can bring the legislative facts that the judge thinks are relevant to the dispute and
thus are judicially noticed back to the parties in order to get their comments
 This will decrease the risk of the court mishandling the information
 This will increase the legitimacy of the decision
This case is an example of when the court wildly mishandled social data:
R. v. Askov (1990 SCC) [class case]
Facts: Three accused applied for stays of the criminal proceedings against them because the delay in getting
through the court system violated their s. 11(b) Charter right to be tried within a “reasonable time”.
Issue: Can the accuseds’ criminal trials be stayed because the proceedings have violated their Charter rights?
Holding: Yes.
Reasoning:
 Court looked at a bunch of data on the length of time it took people to get through the criminal justice
system, and concluded it was unconstitutionally long.
 Granted the stay of proceedings.
Commentary: As a result of this case, thousands of pending criminal trials were dismissed for reasons of
unconstitutional delay in the proceedings.
Bachand on Askov:
 Thinks that the SCC used empirical data on the criminal justice system wrongly to dismiss a whole bunch of
pending criminal charges – this perpetrated an injustice on society as a whole.
 Bachand thinks that the increased threshold for the judicial notice of legislative facts articulated by Spence is
in response to this terrible decisions.
Ann Woolhandler, “Rethinking the Judicial Reception of Legislative Facts”
 Legislative facts: facts that inform a court’s legislative judgment on questions of law/policy
 Adjudicative facts: facts about what the parties did, what the circumstances were, etc
 Advisory Committee for the FRE declined to impose rules for the reception of legislative facts (in
section on judicial notice)  determined that process of judicial reception of legislative facts should be
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

unrestricted in investigation/conclusion
Many scholars are calling for a reform in this area: argue that in light of the Realist movement (which openly
embraced courts’ legislative function), courts should openly adopt procedures better-suited to making
general rules (i.e. procedure for getting evidence on the results of implementing a certain rule)
Problems with this idea:
o Effect of legislative facts are unpredictable (since their function is to make law and not be processed
through law, do not know what court will do with them)
o Legislative facts are not value-neutral, and tend to be mobilized according to interests
o Will more explicitly make courts into legislative/administrative bodies  decreases their legitimacy
as adjudicative bodies
 Opens up the court to engage in pragmatic/balancing reasoning more openly (like
legislature)
The standard for when “social” facts can be noticed is articulated in this case:
R. v. Spence (2005) – CML (SCC from OCA)
Facts: Black man robbed East Indian man. Trial judge allowed the defence to challenge jurors for cause on the
basis of the accused’s race. Would not allow defence to challenge jurors on the basis of the victim’s race (i.e.
challenge East Indian jurors on the basis that they would be naturally biased towards the plaintiff). Appeal.
Issue: Did the trial judge’s refusal to let the defence challenge jurors on the basis of the victim’s race
compromise the right of the accused to an impartial jury and thus a fair trial? Holding: No.
Reasoning (Binnie J.):
 Racial prejudice v. visible minorities is a social fact of which judicial notice has been taken without evidence
 Defence contends that race-based sympathy for the victim by a juror compounds the prejudice against the
accused (which already exists because he is black)  is not a case of race hostility, but race sympathy
 Jurors are presumed to be impartial between the Crown and the accused
o A juror can be challenged for cause if the applicant demonstrates the realistic potential for the
existence of the partiality of that juror
o Establishing a realistic potential for juror partiality generally requires satisfying the court on two
matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be
incapable of setting aside this bias, despite trial safeguards
 Courts have accepted the likelihood that anti-black racism is aggravated when alleged victim is white. No
similar consensus that "everybody knows" a juror of a particular race is likely to favour a complainant/
witness of the same race, despite trial safeguards.
 That “fact” definitely doesn’t satisfy the stringent test of judicial notice adopted by this Court in Find:
o Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond
reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they
tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may
properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to
be the subject of debate among reasonable persons; or (2) capable of immediate and accurate
demonstration by resort to readily accessible sources of indisputable accuracy
 N.B. judicial notice of facts is irrebuttable  once something like this is noticed, it cannot be disputed
by the parties
 "Social fact" evidence = social science research used to construct a background context for deciding
factual issues crucial to resolution of a case. "Social facts" are general, not specific to the circumstances of a
particular case. If properly linked to the adjudicative facts, they help to explain aspects of the evidence.
 The permissible scope of judicial notice should vary according to the nature of the issue under
consideration. More stringent proof may be called for of facts (social, legislative, adjudicative) that are
close to the center of the controversy
 Test for Judicial Notice of Social Facts: “I believe a court ought to ask itself whether such "fact" would be
accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the
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subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the
need for reliability and trustworthiness increases directly with the centrality of the "fact" to the disposition of
the controversy.”
 In this case, the fact of which it is suggested that judicial notice should be taken (that racial sympathy by
jurors towards victims exists) would be dispositive of the appeal  need stringent test for judicial notice
o This fact is not indisputable  cannot be judicially noticed for this purpose
Ratio: The stringency of the test for judicial notice of social facts varies according to the importance of the fact
to the disposition of the case at bar.
II. FORMAL LEGAL SOURCES


Formal legal sources are constitutions, statutes, and cases
The question that arises is: are these facts that need to be proven or can judicial notice be taken of
them?
See UNIDROIT Principle 22 for all that follows.
a. Domestic Formal Legal Sources

The general rule in the civil and the common law is: Jura Novit Curia (the court knows the law)
o Adjudicators are deemed to know the contents of all the rules in force in the legal order in which
they operate (is a fiction, of course)
o Judicial notice extends to all domestic formal legal rules:
art. 2807
CCQ
Judicial notice shall be taken of the law in force in Québec.
However, statutory instruments in force in Québec but not published in the Gazette officielle du Québec
or in any other manner prescribed by law, international treaties and agreements applicable to Québec but
not contained in a text of law, and customary international law, shall be pleaded.
Judicial notice shall be taken of all Acts of Parliament, public or private, without being specially pleaded.
s. 18 CAE
See also ss. 17-22 of the Canada Evidence Act.



From the parties’ perspective, this means that if you want to invoke a domestic rule of law, you do not need
to prove its existence
Adjudicator’s deemed knowledge of domestic law means that he or she can go beyond the sources invoked
by the parties
o Duty of the judge to get the law right means they are never bound to stick to the parties’ sources
alone to draw their conclusions
o Judges do not have to go back to the parties with the other sources of law which they decide are
relevant to the disposition of the dispute
N.B. Expert opinions on domestic law are inadmissible (the necessity criterion for admissibility of expert
opinion is not met – the judge is already a legal expert)
o This might be too rigid, suggests Bachand – our judges are generalists, could perhaps benefit from
the opinion of an expert in a certain field of law
What kinds of laws can be judicially noticed?
The Queen v. Evgenia Chandris (1977) – CML (SCC from NBCA)
Facts: Defendant ship was charged with contravening the Oil Pollution Prevention Regulations. At trial, Crown
did not produce a copy of the regulations nor ask that judicial notice be taken of them, nor suggest that they had
been published. Trial judge ruled he could not take judicial notice of them and dismissed the case. Court of
Appeal upheld the ruling.
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Issue: Can judicial notice of regulations and by-laws be taken by the court? Holding: Yes, with dissent.
Reasoning:
Majority (De Grandpré J. + 6):
 Case revolves around s. 23(1) of the Statutory Instruments Act: “A statutory instrument that has been
published in the Canada Gazette shall be judicially noticed”
 Regulations are statutory instruments. Can either read this provision as limiting the class of statutory
instruments that can be judicially noticed to those published in the Canada Gazette, or as requiring proof of
publication before judicial notice may be taken
 Majority takes first reading (on the basis of the rest of s. 23 being rendered useless otherwise)
 Judicial notice is an obligation that applies to all Acts of Canada, public or private
Dissent (Laskin C.J. + 1):
 When a court takes judicial notice of a fact or law, it dispenses with the production of evidence to prove it
 At common law, judicial notice was taken of public/general statutes but not private enactments nor
subordinate legislation (such as regulations)
 Statutes respecting what can be judicially noticed are derogations from the common law  if wholesale
dispensation of proof to enable judicial notice is to be taken, clearer language is necessary
 Laskin reads s. 23 in 2nd way – need proof of publication before judicial notice can be taken
N.B. both majority and dissent strongly admonish Crown for not placing the relevant legislation before the court.
Ratio: Judicial notice must be taken of all statutory instruments published in the Canada Gazette (no proof of
publication necessary).
Bachand on Evgenia Chandris:
 At common law, judicial notice was not taken of secondary legislation (because it was not necessarily
published)
o So there were exceptions to the court’s deemed knowledge of domestic law (or rather, limits)
 Bachand says it is absolutely ridiculous that the SCC should split on whether a judge can take judicial notice
of regulations published in the Gazette or not
 McCormick notes the same thing (not in my notes) – laws regulating extent of judicial notice are very messy
Broun, ed., McCormick on Evidence, “Title 335: The Judge’s Task as Law-Finder: Judicial Notice of Law”
 It is the function of the judge to find/interpret the law applicable to the issues in a trial
 Too slow for the judge to get all the law in evidence by witnesses/authenticated documents
o Just finds the law informally by sources that are satisfactory to him/her  this process is described
in terms of the judge taking judicial notice of the law applicable to the case at hand
 Law of foreign countries: used to be dealt with as fact (needing proof)  has been mitigated as foreign law
becomes more readily available (sometimes expert testimony needed)
b. Foreign Formal Legal Sources
Scenario One: When Foreign Law Governs the Debate on the Merits


A judge in Canada may have to apply the law of Japan to resolve a dispute (conflict of laws – see arts.
3126/3130 CCQ)
The adjudicator obviously cannot be deemed to know the contents of foreign rules – so foreign law cannot
be treated like domestic law
The Common Law Approach (including Quebec)

Foreign law is treated like an adjudicative fact  must be proved beyond the standard of proof
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
In principle, the court has no duty to get foreign law right (unlike domestic law)
art. 2809
CCQ

Judicial notice may be taken of the law of other provinces or territories of Canada and of that of a
foreign state, provided it has been pleaded. The court may also require that proof be made of such law;
this may be done, among other means, by expert testimony or by the production of a certificate drawn
up by a jurisconsult.
Where such law has not been pleaded or its content has not been established, the court applies the
law in force in Québec.
The analogy with adjudicative facts is limited and must be nuanced on several counts:
1. If a party who invokes a foreign rule fails to prove it
a. The court does not conclude, like they would in the context of adjudicative facts, that the rule does
not exist
b. The judge applies the domestic law in force (art. 2809 para. 2)
2. Involvement of Experts
a. The tendency is to forego the lengthy testimony and cross-examination of the expert; the court
generally prefers sworn affidavits on the relavant points of foreign law
Rule 44.1
USFRCP
A party who intends to raise an issue about a foreign country's law must give notice by a pleading or other
writing. In determining foreign law, the court may consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The
court's determination must be treated as a ruling on a question of law.
b. Emphasis in QC, despite art. 2809, has been on the testimonial route, however (increases the costs of
the proceeding)
3. Role of Appellate Courts
a. If foreign law is treated as an adjudicative fact, appellate courts have to show deference to trial
judge’s findings on matters of foreign law
b. Not the case – a finding on foreign law is a question of law (see Rule 44.1 USFRCP)
4. Role of the Judge versus Role of the Jury
a. The judge retains the power to make determinations about foreign law – the responsibility for such
fact-finding is not delegated to the jury
5. Judge is sometimes expected to go beyond the parties’ evidence on foreign law, despite no duty to
get it right
a. Particularly where a matter is of public order (ex. art. 3091)
The Civil Law Approach (excluding Quebec)



Some jurisdictions (ex. France) accept the analogy between foreign law and adjudicative facts
Others (ex. Germany) do not; they treat foreign law as law
o German judges are expected to research foreign law ex officio
o Why? Perhaps good for international relations to get foreign law right.
Different methods are preferred for the establishment of the content of foreign law:
o France: preference is for written statements by foreign experts hired by the parties
o Germany: preference is for judge’s own investigation. Failing that, prefer a German expert on
foreign law. Failing that, a foreign expert on their own law will do.
Scenario Two: When Foreign Law Is Used to Interpret Domestic Law

Courts are using foreign law to interpret domestic law with increased frequency
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Ordon Estate v. Grail – CML (SCC from OCA)
 This case concerns claims in damages for injury/wrongful death stemming from 2 boating accidents – the
questions that arise ask whether federal maritime law or provincial law should apply, and how maritime
common law ought to be reformed by judges
 The court enunciates a principle of interpretation/reform of the common law that heeds the
international aspect of maritime law:
o “this common law test must be adapted in accordance with the nature and sources of maritime law as
an international body of law whenever courts consider whether to reform Canadian maritime law”
o Court should consider not only the social/moral/economic fabric of Canadian society, but also that
of the broader international community of maritime states (and it must also heed the desirability of
achieving uniformity in international maritime law)
o Court should consider the ramifications of reform not only within Canada, but also the effects on
Canada’s treaty obligations/international relations, as well as upon the state of international maritime
law (must keep in mind sui generis nature of that body of law)
 On the basis of this broad perspective of analysis, the court allows maritime common law to be interpreted to
compensate non-pecuniary damages as well as pecuniary
PART II. WHAT ARE THE ROLES AND RESPONSIBILITIES OF THE ADJUDICATOR AND THE
PARTIES IN THE FACT-FINDING PROCESS?
F. THE ADJUDICATOR’S ROLE VIS-À-VIS THE PARTIES




The focus so far in the course has been on what kind of information the adjudicator is generally allowed to
take into consideration in order to make his or her decision
Conclusions re: Adjudicative Facts
o Evidence relating to material facts
o Evidence relating to relevant circumstantial facts
o Opinion evidence relating to the relationship between circumstantial facts and material facts
o General facts beyond reasonable dispute
o Formally admitted facts
Conclusions re: Normative Facts
o Formal sources of domestic law
o Legislative facts (which may or may not need to be debated at trial, depending on the scope of
judicial notice)
o Evidence relating to foreign law
o Foreign sources of law that are subject to judicial notice
The question we will begin to ask now is: how do adjudicators acquire all that information?
I. IN THE COMMON LAW TRADITION
Historical Perspective



Common law ascribes to an adversarial model of adjudication
In this model, the role of the adjudicator is to be a passive umpire between two parties in contest
The common law judge was to be passive in two ways:
o 1. With respect to the proceedings  it is for the parties to move the case forward and manage
procedure. There was always a tendency to limit parties’ flexibility here, however.
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o
o
o
2. With respect to the evidence  parties are in control of the evidence. Parties are seen as having
a fundamental right to tell their stories as they see fit. They investigate the case, they choose the
evidence, they submit to the adjudicator:
 All admissible evidence
 With respect to all issues raised in the case
Rationale?
 Way to get as close as possible to the truth (in the most cost-efficient way)
 Also a product of the jury system. Juries were created because it was thought findings of fact
were best done by laypeople. Could not give investigative powers to 12 laypeople.
 The judge could not take over investigation of the case, because it was thought it would
create an appearance of bias if he/she took more active role
 So the only option was to leave the control of case/evidence to the parties
This preparation of the case by the parties led to one single event, the trial (trial as unitary event also
a function of the necessary presence of the jury)
Contemporary Perspective



In modern times, there has been a movement away from the passive-judge model of the trial
This is because there has been a crisis in the civil litigation system: courts everywhere are facing problems
of delay, cost, accessibility
o The passive role of the judge has often been identified as one cause of these problems
Judges are no longer expected to be completely passive
1. Judges can appoint experts on their own motion (see above)
2. Judges can encourage admissions in pre-trial conferences
3. Judges can, to a limited extent, examine witnesses:
Brouillard v. the Queen (1985) – CML? (SCC from QCA)
Facts: B charged with extortion. Trial judge convicted him. B challenged decision on basis of bias of trial judge.
Issue: Did the trial judge step outside his role as impartial adjudicator and thus give the appearance of bias?
Holding: Yes.
Reasoning (La Forest J.):
 Role of trial judge = v. demanding  possible for J. to lose his/her patience and thus forget their role and
assume that of counsel. When this happens, need to order new trial (even if verdict is reasonable based on
the evidence, and J. has not erred in fact/law)
 CML principle: judge sits to hear and determine the issues raised by the parties, not to conduct an
investigation on behalf of society at large
 But judges are no longer required to be as passive as they once were; judge not only may intervene in
adversarial debate, but sometimes must do so for justice to be done (overall objective is to find truth)
 Proper conduct of trial judge therefore has 2 considerations:
o 1. Must be neutral and leave counsel to their own respective functions
o 2. Must conduct the trial well – may have to ask witnesses questions to clarify an obscure answer,
to resolve possible misunderstandings of questions by witnesses, to ask questions that have not been
asked but are necessary
 In brief: judge has a right/duty to ask questions but it is limited  justice must be seen to be done (all a
question of manner)
 Here, judge interrupted witnesses/counsel constantly, treated witnesses/accused sarcastically  although his
conclusions are fine in fact/law, his decision is marred by an appearance of bias  requires new trial
Ratio: Although the role of the judge is not one of a totally passive umpire, and s/he has a right and a duty to
intervene to ensure the proper conduct of the trial, the judge must not depart so far from their neutral role that
they give an appearance of bias.
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Bachand on Brouillard:
 N.B. this is an old case
 SCC says quite clearly that judges no longer have to stay passive as much as they once did
 A judge’s right to put questions to a witness in a common law trial is still not totally absolute: should wait
until counsel finishes with the witness, should not embark on new lines of inquiry
4. Judges have the power to split trials – departure from the notion of the CML trial as a single, unitary
event in which all the issues are debated at once:
Simioni v. Simioni (2009) – CML (Ontario Superior Court of Justice)
Facts: Divorce proceeding. Parties were in a very lucrative business together – split up, wife signed a Separation
Agreement. Claiming it is now invalid because husband didn’t make full financial disclosure. This is a motion
by the husband to split the proceedings – determine the validity of the Separation Agreement first, and then
move to the other issues.
Issue: 1. Should the proceeding be split? 2. If yes, should the husband be required to make financial disclosure
for the first proceeding determining the validity of Separation Agreement? Holding: 1. & 2. Yes.
Reasoning (Quigley J.):
 Splitting a proceeding denies the fundamental principle that multiplicities of proceedings should be avoided
– onus lies on party seeking the split to prove that such a move will serve the just/expeditious/least
expensive determination of the case
o In this case, husband discharges his burden of proof; if Separation Agreement is deemed valid,
jurisdiction of court is ousted and parties must go to mediation, and all sorts of other things are
precluded (full financial disclosure by hubby, wife’s ability to contest the terms of the agreement on
the basis of undue influence, etc)
o Splitting trial into two has a chance of ending the action, will simplify both of them if they both
must occur by narrowing issues, will increase likelihood of settlement
 But in order for court to determine if Separation Agreement is valid, husband must make financial disclosure
– probative value of this disclosure outweighs the prejudice to the husband caused by making the disclosure
 See the way trial judge disposes of the case and his *orders* (CP 307)  is the “Case Supervision judge”
and he asks counsel for a timetable for the litigation, sets deadlines for the production of evidence, etc.
Ratio: The power of the judge to manage the case on the basis of expediency and cost effectiveness is pretty
pronounced – both in determination of the issue and the disposition.
5. Judges, in some CML jurisdictions, are getting new powers to control the evidence at the expense of
the parties’ right to control it – see England:
s. 32.1
England
RCP
Power of Court to Control Evidence
(1) The court may control the evidence by giving directions as to (a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be
admissible.
(3) The court may limit cross-examination.
So far, this provision has been used by English judges to limit the amount of evidence given on a single issue.
II. IN THE CIVIL LAW TRADITION


While judges do play a more active role in CVL, it’s an exaggeration to call the approach “inquisitorial”
The active role of the judge is more a difference in degree from CML, rather than nature
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

Why are CVL judges more active?
o Historically, there is no jury in CVL systems. Also, CVL focuses more on the public importance of
civil litigation than CML (CML sees it as serving interests of parties, so they direct the proceedings)
 greater attachment to an objective truth
o Nowadays, CVL sees their system as a more efficient method to ascertain truth
How are CVL judges more active?
o Not with respect to pre-constituted evidence (documents, real evidence)  the judge will not go out
and look for more evidence of this kind than is submitted
o Difference is with respect to other kinds of evidence: CVL judge is in control of testimony, expert
evidence, site visits
 Judges will decide if they are going to take this evidence at all (i.e. whether they need it to
decide the case or not)
 They decide when it will be taken (n.b. trial in CVL is not a single event, is a series of minitrials on each issue, the order of which is determined by the judge)
 Judges control how it will be taken (e.g. they examine the witnesses)
Check out the German system:
Hein Kotz, “Civil Justice Systems in Europe and the United States”
 Adversariness is the hallmark of American procedural system
 In Germany, role of the judge is much more active:
o Court conducts the interrogation of the witnesses after they have told their story with minimal
interruption (counsel can ask a few questions after, but is generally limited)
o Judge dictates summaries of what the witness has said so far – constructs the record
o Court appoints expert witnesses and court conducts his/her examination
o Court controls number and order of witnesses (discretion is guided with relevance and efficiency)
o Judge can range over the entirety of the case and prioritize issues that will dispose of it speedily
 Risks of this system: encourages witnesses to fill in the gaps of their story to present a coherent narrative,
judge may appear to eventually favour one side
 Advantages: more impartial experts, no coaching of witnesses
 This does not mean the German civil justice procedure is “inquisitorial”: it is still for the parties and their
lawyers to identify the relevant facts, to nominate witnesses and the facts they have to attest to  in
both Germany and US, civil courts must work with what they are given by the parties
o Principle of “formal truth” applies  what the court believes to be true given the evidence (role of
court is not to ascertain some independent truth)
 Can the US learn from Germany? Procedural law is “tough law”  depends on a country’s particular
features of history, social structure, political consensus
 In US, it is the institution of the civil jury that makes it difficult to adopt any of Germany’s procedural
methods  trial must be single, continuous affair
o Therefore, must have extensive pretrial discovery  thus, when it comes to trial, the lawyers know
more about it than the judge, and thus they run the show
 Strengthening a US court’s control over evidentiary process is only practicable if they abolish the civil jury
 But the civil jury has a function in US: private litigation often serves the public interest (class actions, etc) 
less so in Germany
Check out the French system:
James Beardsley, “Proof of Fact in French Civil Procedure”
 French judges show a strong preference for written proof; they also tend to avoid making factual
determinations that must be based on complex evidence or evidence that is difficult to evaluate  tendency
to appoint experts if this is the case
 Traditional role of French judge = similar to that in CML litigation  decide the case on the basis of
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





evidence submitted to him (not to go out looking for evidence that will weaken or strengthen the
parties’ claims)
But, it is primarily the judge who holds the power to compel people/parties to produce evidence;
parties have practically no resources to compel production of evidence
o Power to investigate factual matters  in hands of judge (but doesn’t use that power to search
for needed evidence)
o Responsibility for proving factual allegations  in hands of parties (can’t search for needed
evidence because they do not have the power)
Rationales:
o privacy (private litigation concerns parties alone; what they do not wish to disclose to judge, he
should not seek to know)
o the interest of non-parties (should not involve people who are not involved – violation of their
personal autonomy)
o the right not to give evidence against oneself
o expediency (role of civil courts is to resolve private disputes – the only public interest in the matter
is that they do so quickly, efficiently, and peacefully; is not a truth-seeking exercise)
Since the lawyers are powerless to engage in real factual investigation and since the court is reluctant to use
the powers it enjoys, the perception of fact by the court tends to be based entirely on an evaluation of
the documents submitted by parties and exchanged between them
Fact avoidance seen in: likely no testimony involved in a French trial (except by an expert); importance of
presumptions
2 procedural devices in France used to avoid sifting complex evidence:
o 1. The Enquete: mechanism by which court hears verbal accounts of witnesses
 Witness tells their story, interrupted occasionally by judge
 At the end of the interrogation, judge summarizes what witness said for the record and
witness signs the copy
 It is then treated as documentary evidence
 Lawyers are relatively uninvolved – they do not cross-examine
 No procedure for assigning weight/importance to testimony
o 2. The Expertise: basically a mini-trial carried out by an expert
 Expert examines the evidence, interrogates 3rd parties, allows parties and lawyers to
participate  is a “trial” in the CML sense (that is not found elsewhere in French system)
 Expert’s report is usually decisive
 Role is supposed to be purely technical  but it necessarily gets mixed up with law
(because how is expert supposed to know what to look for otherwise)  delegation of role
of the court?
Great merits of French approach: does not impose the costs associated with CML procedure and
appears to satisfy those who operate it and those whose claims are decided by it (nobody involved in
the system wants to change to party-directed discovery of evidence)
III. IN QUEBEC

The traditional position in Quebec is heavily influenced by the CML model of the passive judge, but the
system is evolving towards a more active model (parallel with the CML situation presently)
This new provision articulates the traditional position:
Subject to the rules of procedure and the time limits prescribed by this Code, the parties to a proceeding
art. 4.1
have control of their case and must refrain from acting with the intent of causing prejudice to another
CCP
person or behaving in an excessive or unreasonable manner, contrary to the requirements of good faith.
The court sees to the orderly progress of the proceeding and intervenes to ensure proper management of
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the case.

However, a QC judge can intervene and be more active in a number of situations (never reaches the point of
England’s s. 32.1 though – QC judge can never direct the production of the evidence):
art. 279
CCP
art. 290
CCP
art. 292
CCP
art. 2810
CCQ


After a case has been inscribed or scheduled for proof and hearing, the judge assigned to hear it, or any
other judge designated by the chief justice, if he believes it useful or if he is so requested, invites the
attorneys to discuss appropriate means to simplify the suit and to shorten the hearing, including the
advisability of amendments to the pleadings, of defining the questions of law and fact really in
controversy, of admitting some fact or document and of providing the list of authorities they intend
to submit. During the conference, the parties must provide access to the original of the exhibits that they
have communicated and that they intend to refer to at the hearing. […]
The judge may, during the trial, order that the court go to the scene in order to make any observation
which may assist in the determination of the case; and, for this purpose, he may make such orders as he
considers necessary.
At any time before judgment, the presiding judge may draw the attention of the parties to any gap in
the proof or in the proceedings and permit them to fill it, on such conditions as he may determine.
The court may, in any matter, take judicial notice of the facts in dispute in the presence of the parties or
where the parties have been duly called. It may make any verifications it considers necessary and go to
the scene, if need be.
Art. 292 CCP is super interesting, says Bachand. There is no other provision like it in any jurisdiction he
knows of.
o This is a strong departure from the traditional model of the passive judge
o N.B. the judge is not allowed to fill the gap, but only point it out – QCA has gone so far to say that
sometimes the judge has a duty to point it out
o Why does this provision exist? Recognizes that the model of the passive judge will sometimes lead
to situations of injustice (especially where parties are of unequal bargaining power)  this is a
corrective measure
o Is there a potential for appearance of bias here?
See also art. 414 CCP (Court can appoint an expert), art. 815.1 CCP (Court, in family cases, can order that
additional evidence be adduced. Court can even call its own witnesses!)
Technologie Labtronix Inc. v. Technologie Micro-Controle Inc. (1998) – CVL (QCA)
Facts: This is a motion by the defendants (Technologie Micro-Controle) to have the counsel of Labtronix
removed from the case. It all started when Labtronix sued a bunch of its ex-employees for unfairly competing
with Labtronix. Labtronix retained the counsel of Me. Jutras. One of the people that Labtronix was suing was
Jutras’ brother-in-law’s brother (Lemaire) – so he calls Lemaire in to make a settlement. This is where things get
fuzzy and the stories of Micro-Controle and Jutras start to differ. It is alleged by Micro-Controle that Labtronix
(through Jutras) agreed to pay Lemaire a sum of money to testify for them (i.e. to commit perjury). It is alleged
by Jutras/Labtronix that they offered to pay him in exchange for signing a no-compete contract. In trying to sort
out all the evidence (which includes a whole ton of non-credible testimony by the main players), the trial judge
realizes that it would help him if he knew when a contract between Jutras/Labtronix and Lemaire was written –
so he orders that the court immediately do a site visit to Jutras’ office to check when the word file was last
modified (also forbids everyone in the courtroom from notifying anyone who could alter the file). It doesn’t say
what he thinks it will say (he thinks it will incriminate Jutras, but it doesn’t), so he doesn’t accord it any weight.
Issue: Did the judge overstep the boundaries of his role in ordering the site visit? Holding: Yes.
Reasoning (Proulx J.):
The Site Visit
 The judge made the order to visit the offices of Jutras on his own motion (proprio motu)
o Did not hear the parties on the subject
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o Founded his order on art. 2810 CcQ and art. 290 CPC
 The administration of civil evidence is governed by the principe de la contradiction
o The parties bear the burden of making their proof in any manner they see fit in order to have
their rights recognized
 Art. 292 CPC: The judge can signal a gap in the proof (insufficiency in proof, an element of an essential
piece of evidence missing – would be determinant) so that the parties can fill it
o But the judge cannot fill the gap themselves
 Art. 2810 – does it add anything to the judge’s powers or change the fundamental philosophy of
evidence that governs in Quebec (accusatory/contradictory)?
o No. It allows the judge to get direct sensory experience of a piece of evidence that has been
brought by the parties  to increase his understanding of the case
o It does not allow the judge to become an investigator, or to immerse himself in the debate by
going out and getting extra evidence not presented by parties
 The way the judge conducted the site visit made it like a police raid – totally inappropriate
 What the judge should have done is signal the gap in the proof and invite the parties to comment on it; either
the defendants would have agreed to site visit, or would have refused and judge would have been free to
draw negative inferences from that refusal (art. 312 CPC)
 In light of all the crapload of contradictory and unconvincing evidence, Proulx J. cannot find that Jutras &
Co., on the balance of probabilities, did what they were accused of (especially because it is such a serious
accusation).
Other Stuff
 It is the sphere of the trial judge to assess the credibility of witnesses – must be very deferential towards his
findings on that credibility
 But since the judgement would constitute a finding of criminal actions against Jutras & Co. (perjury), the
Court of Appeal will very carefully assess the evidence (and they proceed to re-assess the credibility of
witnesses and their testimony, no holds barred)
 Underlying theme of this judgement is bias; Court of Appeal seems to think the trial judge didn’t have an
open mind  made up his mind v. the lawyers too quickly
o When site visit didn’t give him the evidence he wanted, he decided against the evidence which he
previously said would be determinant and found that Jutras & Co. probably manipulated it
Ratio: The approach to evidence in QC is contradictory and accusatory, not inquisitorial. Art. 2810 does not give
the judge the right to go out and get extra evidence – gives him the right to go out and get greater understanding
of evidence that has been presented by the parties.
Bachand on Labtronix:
 Both art. 290 CCP and art. 2810 CCQ say that the court can make a site visit on its own motion
o So the judge technically did not do anything wrong – so why did the QCA overturn the order?
 Must read both articles in light of the broader context/adversarial culture of QC civil justice system
o Contradiction is crucial, and judge did not permit the parties to be notified
o There is also a distinction between verification of the facts and discovery of the facts – by his
intervention, the judge caused new facts to be brought into the dispute; he broadened the scope of
the issues in dispute between the parties
 A judge can go to a site if it is to better understand a fact already in evidence; but cannot do so to get a fact
to then put in evidence
 The court also reviews all the trial judge’s findings of fact, without regard for the appropriate standard of
review – why? Because of the seriousness of the charge (perjury); are using a slightly higher standard of
proof in civil justice. Cf. FH v. MacDougall.
IV. BEFORE INFERIOR TRIBUNALS
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

The role of an adjudicator presiding over an inferior tribunal is defined by the rules specifically applicable to
the tribunal in question
o But there is a clear trend away from the model of a passive adjudicator
o Some commentators have even said that administrative justice follows an inquisitorial model
See the below case for a contrast between the role of a civil court judge and the role of a tribunal adjudicator:
Cf. Labtronix:
Rivest v. Bombardier Inc. (2007) – CVL (QCA)
Facts: R got hurt working at Bombardier – took her case to the CSST to get compensation. CLP (Comission des
lésions professionelles) accepted her claim; before rendering decision in favour of R, CLP ordered a site visit of
her workplace. Did so with both parties, their lawyers, and experts present. Bombardier appealed to Superior
Court, which overruled CLP’s decision on the basis that CLP adjudicator had exceeded the limits of their role by
ordering the site visit on their own motion, and then not submitting conclusions they drew from the site visit to
parties for comment or contradiction. This is the appeal by R.
Issue: Did the CLP adjudicator, as the presiding authority of the administrative tribunal, exceed their role by
ordering the site visit and not submitting their conclusions to the parties? Holding: No.
Reasoning (Chamberland J.A.):
 Art. 6 of Loi sur les commissions d’enquete: the commissioners can use all legal means as they see fit to
investigate the matters which have been referred to them.
 Art. 378 of Act respecting industrial accidents and occupational diseases: commission has all the powers
necessary to ensure they safeguard the parties’ rights
 Trial J. decided that the CLP filled a gap in the evidence – this view does not correspond to the context in
which CLP was created, nor a modern understanding of administrative justice
 Act respecting industrial accidents and occupational diseases is remedial legislation: its aim is to
compensate injured workers  responds to legislative agenda of imposing a scheme funded by employers to
indemnify workers harmed by their businesses
 CLP has the duty to ensure that the workers that come to it get the compensation to which they are
entitled (not less)
 All of these factors mean that the commissioners must, when circumstances require, assume a more
active role in the search for truth
o This is different from civil litigation  sometimes the administrative tribunal adjudicator
must immerse themselves in the debate and the production of evidence
 CLP adjudicator was fulfilling his duty by ordering the site visit
 As for the opportunity to comment issue, both parties and their reps were there, as were the experts, and both
had an opportunity to comment or could have asked to present contradictory proof (which they didn’t)
Ratio: Adjudicators presiding over administrative tribunals sometimes have the duty to take a more active role in
the case and the search for evidence, because they are engaged in the search for truth and the full vindication of
rights (unlike regular civil litigation).
Bachand on Bombardier:
 What is the difference with Labtronix such that the same court renders an opposite decision?
o The fact in Bombardier which the judge went out to verify is the central fact in the case (the
claimant’s chair or whatever that she claimed hurt her back)
o In Labtronix, the judge went out to get a new fact which was not previously in dispute
 Also, the tribunal is part of a system that is explicitly targeted at evening power imbalances between litigants
(workers and employers) – so the intervention of the judge (on behalf of 1 party?) is not so problematic
o A more active role for the judge, in civil court, is seen to undermine impartiality (see Brouillard)
o But the worker’s comp tribunal is already created by remedial legislation favouring the worker
 Quasi-judicial adjudication shows that a more active adjudicator does not necessarily jeopardize the
impartiality of the adjudicator or the legitimacy of the process
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

The tribunal in question is also more concerned with the search for objective truth rather than the parties’
truth  want to give workers that to which they are actually entitled, not what they prove they are entitled to
A more active adjudicator is essential to increase access to justice – their presence means that remedial
statutes like workman’s comp legislation will be applied correctly
o In general, the argument is that justice requires more active participation by judges
V. BEFORE ARBITRAL TRIBUNALS

The key principle of the role of the adjudicator presiding over an arbitral tribunal is party autonomy  they
have as much freedom as possible to determine the tribunal’s role in the evidentiary process. They pick the
adjudicator.
art. 944.1
CCP
Preamble
IBA Rules

Subject to this Title, the arbitrators shall proceed to the arbitration according to the procedure they
determine. They have all the necessary powers for the exercise of their jurisdiction, including the power to
appoint an expert.
2. Parties and Arbitral Tribunals may adopt the IBA Rules of Evidence, in whole or in part, to govern
arbitration proceedings, or they may vary them or use them as guidelines in developing their own
procedures. The Rules are not intended to limit the flexibility that is inherent in, and an advantage of,
international arbitration, and Parties and Arbitral Tribunals are free to adapt them to the particular
circumstances of each arbitration.
In practice, what tends to happen is:
o In domestic cases: parties tend to revert to the civil model of judging common in the jurisdiction
o In international cases: parties have different expectations, so rules generally strike a balance
between passive/active role for the adjudicator
 There is an idea that too much party control is inefficient, however
See the activity expected of the adjudicator in the IBA Rules on the Taking of Evidence in International
Commercial Arbitration:
art. 8.1 IBA The Arbitral Tribunal shall at all times have complete control over the Evidentiary Hearing. The
Arbitral Tribunal may limit or exclude any question to, answer by or appearance of a witness (which
Rules
art. 8.4 IBA
Rules
term includes, for the purposes of this Article, witnesses of fact and any Experts), if it considers such
question, answer or appearance to be irrelevant, immaterial, burdensome, duplicative or covered by a
reason for objection set forth in Article 9.2. Questions to a witness during direct and redirect testimony
may not be unreasonably leading.
Subject to the provisions of Article 9.2, the Arbitral Tribunal may request any person to give oral or
written evidence on any issue that the Arbitral Tribunal considers to be relevant and material. Any witness
called and questioned by the Arbitral Tribunal may also be questioned by the Parties.
G. THE PARTIES’ ROLE VIS-À-VIS EACH OTHER: THE BURDEN OF PROOF
The Function of the Burden of Proof

The only function of the burden of proof is to establish who loses in a tie – i.e. if the judge can’t decide
either way on the balance of probabilities, the person who bears the burden of proof loses because they have
not discharged it.
The Allocation of the Burden of Proof
International:
Principle 21.1
Ordinarily, each party has the burden to prove all the material facts that are the basis of that
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UNIDROIT
party’s case.
The Civil Law of Quebec:
art. 2803
CCQ


A person wishing to assert a right shall prove the facts on which his claim is based.
A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he
bases his allegation.
There is a general principle in the civil law favouring the status quo over change – the burden of proof lies
on the party who is seeking to change the “normal” state of affairs
The normal state of affairs is generally that people do not have legal obligations to one another (art. 2803
para. 1); but if they do, and they want to end them, that is a change that allocates the burden to the person
seeking that change (art. 2803 para. 2)
Caisse Populaire de Maniwaki v. Giroux (1993) – CVL (SCC from QCA)
Facts: Giroux got a hypothecary loan from Caisse Pop; it came with an insurance policy that offered disability
insurance (i.e. if debtor Giroux became disabled, insurance co. would make the debt payments to the creditor
caisse pop until she got better). Giroux suffered an injury, and proved that she was disabled to the insurance co.,
who started paying her debt. Eventually, they asked for a medical certificate saying she was still disabled – she
refused. They cut off payments. Caisse Pop. sued them both.
Issue: Who bears the burden of proof in this situation – the insurance company (to prove she was no longer
disabled) or Giroux (to prove she was still disabled)?
Holding: The insurance company, because they are the ones wishing to change the normal state of affairs.
Reasoning (Gonthier J.):
 art. 2803 takes care of this debate  the party who asserts a fact contrary to the normal/usual state of affairs
must prove it.
 Once there is a legal obligation established, this becomes the normal state of affairs – the party that
wishes to change that normal state of affairs (i.e. to assert that the obligation no longer exists) must
prove that
 The status quo is the rule between the parties for assigning burden in the case
 The insurance company argues: Giroux is trying to get them to perform an obligation (to make payments on
her debt)  she has to prove they have an obligation
 Giroux argues: the insurance company has an existing obligation to her to make payments on her debt,
which they have been performing  if they are arguing the extinguishment that obligation, they must prove
it has been extinguished and does not continue as it has done
 The status quo is Giroux’s position as creditor and the insurance co.’s position as debtor  it is the insurer –
not Giroux – that wishes to change that situation
o So they bear the burden of proof (second para. of 2803 applies)
 Unfortunately for Giroux, this doesn’t change the outcome of the case. Insurance co. has discharged their
burden of proving that she is no longer disabled  her payments are cut off.
o The burden would only have been relevant if the judge couldn’t decide between the parties’
evidence who was right (i.e. if neither party’s proof established, on the balance of probabilities, that
Ms. G either was/wasn’t disabled)
 Then he would have had to decide in favour of Ms. G because the insurer bears the burden
of proof. Not the case here.
Ratio: Party wishing to change the current state of affairs has to prove the facts on which they base their claim.
Bachand on Maniwaki:
 N.B. the whole discussion of burden of proof is useless, because the trial judge established on the basis of
the evidence that Giroux was no longer disabled.
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The Common Law:




The approach to the allocation of the burden of proof is very different in the CML. It does not turn on one
organizing principle, like CVL.
In order to find out who bears the burden of proof, need to look to the precedent in the area of substantive
law in which the claim is made  is a case-by-case approach
The factors to consider in allocating the burden of proof are:
o Which party desires change (n.b. in CVL this is the only consideration)
o Special considerations (ex. those disfavouring certain defences)
o Convenience
o Fairness
o Judicial estimate of probabilities
Can redress the unfairness between two litigants with the allocation of the burden of proof
o Ex. Cook v. Lewis: court reversed the burden of proof because the defendants had destroyed the
plaintiff’s power of proof, they had both acted negligently toward him, they have better access to the
relevant proof than the plaintiff
Hollis v. Dow Corning Corp. (1995) – CML (SCC from BCCA)
Facts: Hollis got breast implants manufactured by Dow Corning. Dow Corning did not warn her doctor, Dr.
Birch, that they could rupture in the normal course of daily affairs. They ruptured – she suffered injuries. She is
suing Dow Corning in negligence for not warning Dr. Birch. Dow Corning is arguing that even if they had
warned Dr. Birch, he wouldn’t have passed on the warning, so the chain of causation is broken.
Issue: Who has the burden of proving causation and how far does it extend?
Holding: The plaintiff has the burden of proving causation, but she only has to prove that Dow Corning didn’t
adequately warn Dr. Birch – not that Dow Corning didn’t adequately warn Dr. Birch, who would have passed
that information onto her, which would have made her not get the surgery (the latter is the view of the dissent).
Reasoning:
Majority (La Forest J.):
 Cook v. Lewis: the negligent parties destroyed the plaintiff’s power of proof  justifies a reversal of the
burden of proving causation
 In this case, Hollis’ burden of proof isn’t destroyed by Dow Corning, but it’s undermined if she has to prove
what the doctor would have done in a hypothetical situation
o She should not be penalized for the fact that if the manufacturer had actually met its duty to warn,
the doctor still might have acted negligently
o “One can assume that a doctor would not ignore a proper warning or fail to disclose a material risk”
 It doesn’t make sense to allow Dow to disculpate itself by showing it wasn’t (or wouldn’t be) the only one at
fault  even less so by making the plaintiff show that it was the only one at fault; these concerns are more
properly addressed at the apportionment of liability stage
Dissent (Sopinka J. +1):
 The majority proposes to eliminate the fundamental requirement of tort law that the plaintiff establish
causation in order to prove the defendant’s liability
o Majority says that Hollis has discharged her burden of proof by showing that Dow failed in its duty
to warn  but this doesn’t complete the chain of causation
o She must also show that Dr. Birch would have told her the risks, and that would have made her
forego the surgery
 The burden of proof is properly reversed where the defendant has somehow destroyed the means of
proving the case or the defendant controls the evidence
o In this case, Dow hasn’t destroyed any evidence, nor do they control the testimony of Dr. Birch,
which is the relevant evidence in question
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

The burden of causation should remain on the plaintiff in this case, to the full extent
The legal burden of proof doesn’t come into play unless the decisionmaker is evenly split on the
outcome of the case
Ratio: The burden of proof is decided on a case-by-case basis in the common law; it may be mitigated where it
is overly harsh to a disadvantaged party.
Bachand on Hollis:
 Sopinka says that the burden of proof is properly reversed when a defendant has participated in destroying
the means of proving the case against him, or where the defendant somehow controls the evidence
o This is not the case here; both parties have equal access to Dr. Birch’s testimony
o There is no inequality to rectify here by mitigating the burden of proof
 This is the minority view, however.
PART III. HOW MAY EVIDENCE BE USED TO PROVE FACTS?



The rules that we’ll be looking at in this section have several functions and objectives
Functions:
o Regulation of admissibility: exclusion of evidence that is otherwise admissible
o Regulation of probative value: departure from the general principle that the adjudicator has
discretion to weigh the evidence
Objectives:
o Elucidation of truth  increasing the quality/accuracy of the fact-finding process
o Increasing the efficiency of the adjudicative process
o Furthering extrinsic public policies (policies that have little to do with the fact-finding process)
H. EXAMPLES OF RULES PRIMARILY AIMED AT ELUCIDATING TRUTH
I. PRELIMINARY QUESTION: ARE THEY REALLY NECESSARY?

The rules that we will see in this section are not actually necessary for adjudication to be legitimate
Cross and Tapper on Evidence, “Proceedings in Other Tribunals”
 There are a wide variety of proceedings of a quasi-judicial, administrative, and legislative nature  matter
of dispute as to how far the rules of evidence apply
o Even when they do apply, likely for there to be a more lenient attitude to their enforcement
 More often than not, the constituting legislation of the tribunal will exclude the strict application of the rules
of evidence (may leave their application optional)
 Flexibility is the essence of the matter – precise mix of rules of evidence/procedure should be adapted
to the purposes of the proceedings
o The nature of the facts to be decided/the consequences of a finding
 Technical rules of evidence form no part of the rules of natural justice – these proceedings are still
expected to be fair regardless

As discussed in Cross & Tapper, many tribunals do not use them as strictly as civil courts
art. 9.1 IBA The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence.
Rules
See also Principle 16 UNIDROIT which allows for much more flexible approach to access to evidence by the
court and the parties.
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
Are these rules desirable to have even in civil litigation in the formal courts?
o There is an access to justice issue here: these rules are complex and unpredictable
o They therefore also affect efficiency of the process, and increase the costs associated with it
o Is the cost these rules impose made worth it by the increase in accuracy in factfinding they promote?
The court may not of its own motion invoke grounds of inadmissibility under this chapter which a party
art. 2859
who is present or represented has failed to invoke.
CCQ
Even the CCQ doesn’t see these rules as public order. A party needs to bring them up in order for them to apply.
II. RULES THAT CONCERN THE USE OF DOCUMENTARY EVIDENCE

Documentary evidence: any information acquired by reading which is inscribed or recorded on any
medium
art. 2837
para. 1 CCQ
Rule 1001(1)
USFRE

A writing is a means of proof whatever the medium, unless the use of a specific medium or
technology is required by law. […]
Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their
equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic
impulse, mechanical or electronic recording, or other form of data compilation.
What type of evidence a thing is, is determined by the purpose for which it was brought to court
The Civil Law’s Preference for Documentary Evidence to Prove Juridical Acts





Juridical Act: a manifestation of intention by a party (or parties) to produce legal effects. Is the conscious
marshalling of a legal institution, the voluntary creation of a legal relationship with legal effects.
o Ex. a contract, a will, a waiver
Juridical Fact: occurrences to which the law attaches legal effects that were not intended by those involved.
o Ex. death, turning the age of majority, fault
The general idea: disputes regarding juridical acts (as opposed to juridical facts) are to be resolved on
the basis of documents
o In general, CVL values documentary evidence and CML values testimonial evidence (cf. Beardsley)
Traditional CVL rule was very strict: a party to a juridical act could only prove that act with the document
through which it was carried out
o Total exclusion of testimonial evidence. Oral contracts were not enforceable.
The modern rule is less strict: a party to a juridical act can prove that act with testimonial evidence under
certain circumstances. The traditional broad exclusion is mitigated.
The general rule on the use of testimony to prove juridical acts:
Proof of a juridical act may not be made, between the parties, by testimony where the value in
art. 2862
dispute exceeds $1,500.
CCQ
However, failing proof in writing and regardless of the value in dispute, proof may be made by testimony
of any juridical act where there is a commencement of proof; proof may also be made by testimony,
against a person, of a juridical act carried out by him in the ordinary course of business of an enterprise.

This provision sets out the general rule that contracts may not be proven by testimony (n.b the
provision does not exclude any other type of evidence – proof of a contract of any amount can be done
by the use of material or real evidence); but it also sets out a number of exceptions
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

“Between the parties”: the prohibition does not apply if either party to the lawsuit is not a party to the
juridical act – it’s only if the people between whom the contract is alleged to have been made are also the
plaintiff and defendant that testimony can’t be used to prove its existence
Note that the prohibition is on any use of testimony – the party to the suit, or any third party’s.
EXCEPTION #1: LESS THAN $1500
 A party can use testimony in cases below $1500 to prove a contract (see art. 2862)
o N.B. that $1500 is the value in dispute, not the value of the contract
EXCEPTION #2: COMMERCIAL CONTRACTS
 Commercial contracts (see art. 2862). Read with art. 1525, para. 3 explaining what constitutes an enterprise.
EXCEPTION #3: COMMENCEMENT OF PROOF
Art. 2862 needs to be read with the definition of commencement of proof:
A commencement of proof may arise where an admission or writing of the adverse party, his testimony
art. 2865
or the production of a material thing gives an indication that the alleged fact may have occurred.
CCQ



If anything in the other party’s proof gives an air of reality to the party’s allegation, then that party can
complete the picture with the use of testimonial evidence
Arts. 2862 + 2865 = testimonial evidence can be used to prove a juridical act when:
o Anything emanating from the other party gives an indication the alleged juridical act may have
occurred
o Any real evidence emanating from the other party or anyone else gives an indication the alleged
juridical act may have occurred
Testimonial evidence is prohibited as proof of a juridical act only when it is the sole evidence on which
a party is relying, then.
Guerin v. State Life Insurance Co. (1911) – CVL (QSC)
Facts: State Life allegedly hired Guerin as their medical superintendant at the salary of $1200 per year – Guerin
alleges the existence of an employment contract stating all this. State Life argues that they never had a salaried
agreement with Guerin and owe him nothing.
Issue: Is testimonial evidence admissible to prove the existence/content of the K? Holding: Yes.
Reasoning (Bruneau J.):
 Testimonial evidence is admissible to prove this K because there has been a commencement of proof in its
favour (basically, art. 2862)
 The note written by Guerin’s superiors refusing to pay the bill for services, the inscription of Guerin’s name
on his office door is the commencement of proof that will open up the way for testimonial evidence
Ratio: In general, in civil law jurisdictions, documentary (as opposed to testimonial) evidence is preferred in
order to prove the existence of juridical acts. However, the prohibition on testimonial evidence is lifted when
there is a commencement of proof.
Note that this is an old case – the commencement of proof had to be in writing under the CCLC. No longer.
EXCEPTION #4: GOOD REASON FOR JURIDICAL ACT NOT TO BE IN WRITING
Where a party has been unable, for a valid reason, to produce written proof of a juridical act, such an act
art. 2861
may be proved by any other means [i.e. including testimony].
CCQ
The French version of this provision is clearer. “Produce” is a confusing word to use – the French “ménager”
is a better term for what this provision covers.
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
This provision covers a situation in which when the parties came to the agreement, did not do it in writing
for a really obvious or necessary reason
o Ex. physical impossibility, illiteracy, moral/social impossibility
o Court basically asks here if it was reasonable not to get the juridical act in writing, or if it was
negligent
EXCEPTION #5: JURIDICAL ACT LOST/DESTROYED
art. 2860
CCQ

A juridical act set forth in a writing or the content of a writing shall be proved by the production of the
original or a copy which legally replaces it.
However, where a party acting in good faith and with dispatch is unable to produce the original of a
writing or a copy which legally replaces it, proof may be made by any other means. […]
This provision covers situations in which the juridical act was set down in writing, but it has been lost or
destroyed (n.b. all the other exceptions cover situations in which the writing of the juridical act was never
made)  party must not have lost it by negligence, though – must have acted diligently
o Art. 2860 prevails over 2862. If a contract was lost or destroyed through the party’s negligence, even
though it falls into one of the other exceptions, testimonial evidence is still not admissible.
N.B. none of these rules are public order:
The court may not of its own motion invoke grounds of inadmissibility under this chapter which a party
art. 2859
who is present or represented has failed to invoke.
CCQ

Basically, the courts will do anything they can to get out of the rule that you can’t use testimony to prove a
juridical act
Civil Law, Continued: Prohibition of Testimonial Evidence Aimed at Contradicting or Varying the Terms
of Documents Setting Forth Juridical Acts
Rule and one exception:
The parties to a juridical act set forth in a writing may not contradict or vary the terms of the writing
art. 2863
by testimony unless there is a commencement of proof.
CCQ
Other exceptions:
Proof by testimony is admissible to interpret a writing, to complete a clearly incomplete writing or to
art. 2864
impugn the validity of the juridical act which the writing sets forth.
CCQ

The reason there is a prohibition on the use of testimony to vary the terms of a written juridical act is to hold
parties to what they’ve set out in writing.
EXCEPTION #1: COMMENCEMENT OF PROOF (art. 2863)
 Although art. 2863 says “parties to the juridical act”, it applies regardless of who is in the suit (no same
limitation as art. 2862 where testimonial evidence can be brought against a litigant who isn’t party to the
alleged K)  same reason as above – we want to hold people to the agreements they make, in every context
EXCEPTION #2: INTERPRETATION OF A WRITING (art. 2864)
 The clause must be ambiguous in order to use testimonial evidence to interpret it
EXCEPTION #3: TO COMPLETE A WRITING (art. 2864)
 “Incomplete” in art. 2864 is defined very narrowly
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EXCEPTION #4: TO IMPUGN THE VALIDITY OF THE JURIDICAL ACT (art. 2864)
 This is not actually a real exception – you’re not attacking the terms of the juridical act
o You are not saying that the juridical act is an inaccurate representation of what you agreed.
 You’re attacking the act as a whole – are saying that the juridical act does not exist as such.
EXCEPTION #5: CONSUMER CONTRACTS (art. 263 Consumer Protection Act)
 A consumer can use testimony to contradict/vary the terms of a consumer contract
This isn’t really about varying the terms of the K; is about proving the existence of a second, different K:
Valuex Inc. v. Richmond Transport Inc. (1980) – CVL (QCA)
Facts: Valuex contracted with Richmond to pick up some pipes and transport them to Alloys – were not to
render the goods to Alloys unless Alloys paid. Alloys asked Richmond to deliver them to Canadian Ingersoll
Rand Ltd. instead, on partial payment – Richmond called Valuex, which said sure, do it. Valuex is suing
Richmond for breach of K for delivering the pipes before full payment; Richmond is saying they modified their
K verbally. Richmond wishes to introduce testimonial evidence to prove this – Valuex says it should be
inadmissible because art. 2863 (CcLC version) says you can’t vary the terms of a juridical act set out in writing
by testimony.
Issue: Is the testimony admissible? Holding: Yes.
Reasoning (Lamer J.):
 You can prove the existence of a new contract or a modification of a previous contract by testimony (which
is different from varying/contradicting the terms of a previous K)
 This is a modification of the agreement, not a change in its terms
 Richmond’s testimony is admissible to prove the content of this new K
Ratio: Although you can’t introduce testimonial evidence to vary/contradict the terms of a juridical act set out in
writing (art. 2863), you can introduce it in order to prove a modification of the contract or the existence of a new
contract.
Bachand on Valuex:
 Richmond is not saying that the first contract is wrong – they are saying that the terms of the juridical act
changed by mutual agreement of the parties
 If we accept that Richmond is not trying to vary K1, but trying to prove K2, then the commercial contract
exception applies (art. 2862) and testimonial evidence is admissible to prove the existence of a juridical act
What is the standard for the commencement of proof exception?
Toronto-Dominion Bank v. 9045-1287 Quebec Inc. (2006) – CVL (QSC)
Facts: TD Bank loaned the company in question some money, secured by a variety of guarantors including the
sole shareholders of the company. Company defaulted on its repayment of the loan – TD is going after the
shareholders for the whole of the operating loan and the term loan.
Issue: Can the shareholders bring testimonial evidence to show that their liability for the term loan is limited to
20%? Holding: No.
Reasoning (Delorme J.C.S.):
 TD is invoking art. 2863 (cannot vary the terms of a written agreement by testimonial evidence unless there
has been a commencement of proof)
 Shareholders say there is a commencement of proof in the statement made by one of the Bank’s managers in
a deposition to the effect that it is hard to be repaid by another of the sureties (Garantie Quebec)
 Raises the question: what is the standard for a fact to constitute a commencement of proof?
o The fact brought into evidence by the opposing party must tend to render “vraisemblable”
(probable) the fact which is desired to be proven by testimony
o It is not enough that the fact only be rendered possible
 Deciding whether or not something satisfies the requirement of a “commencement of proof” comprises three
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different determinations:
o 1. Materiality/factual connexity: does the tendered writing bear on the specific subject of the
testimony it is said to authorize?
o 2. Logical relevance/logical connexity: is the writing capable of supporting an inference that the
testimony is probably true?
o 3. Evidentiary weight: probability, not possibility, is the standard
 These requirements are not fulfilled in the present case: none of the evidence already accepted indicates that
the extent of the guarantors’ personal liability was limited to 20%
 Absence of commencement of proof  testimony inadmissible to vary the terms of the written agreement
 Shareholders are also saying that testimonial evidence is admissible to interpret a writing
o But this is only true where the contract is ambiguous on its face  here it is perfectly clear in
attributing full liability to the shareholders
Ratio: The standard for a commencement of proof is probability not possibility. Contrast what FB says.
Bachand on Toronto Dominion:
 The court articulates a standard for a commencement of proof which is way too high – probability! art. 2865
only says “gives an indication”
 If the commencement of proof establishes the probability of the truth of the fact which a party is seeking to
establish with testimonial evidence, the testimonial evidence would not be necessary to prove its likelihood
Civil Law, Continued: the Types of Documents that May Be Used to Prove Juridical Acts and Their
Probative Values



Since we have established that the civil law prefers documentary evidence to prove juridical acts, we will
now look at the types of documents that may be used to prove juridical acts and their respective probative
values (as determined by rules, not the discretion of the judge)
Documents setting forth juridical acts are documents through which the parties to a juridical act have
expressed their intention to marshal a specific legal institution
o These documents are generally created at the time the juridical act was concluded
Documents setting forth juridical acts fall into 3 categories:
o 1. Notarial Acts
o 2. Private Writings
o 3. Other Writings
1. Notarial Acts

Notaries are a second separate legal profession that is distinctive of civil law jurisdictions
o They are “public officers”
o Their function is to “execute acts” which are then accorded special weight
a. What documents qualify as notarial acts?

A document setting forth a juridical act that has been received by a competent notary qualifies as a notarial
act as long as all the formalities are fulfilled
art. 2813
CCQ

An authentic act is one that has been received or attested by a competent public officer according to
the laws of Québec or of Canada, with the formalities required by law.
Every act whose material appearance satisfies such requirements is presumed to be authentic.
What are the necessary formalities?
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
o Signatures of all the parties (art. 2819)
o Date and place act was executed, read out loud by the notary, signed by the notary (Notaries Act)
Presumption of authenticity (art. 2813 para. 2) – a document that looks like a real notarial act will be
presumed to be a real notarial act.
o This presumption is rebuttable and any evidence is admissible to rebut the presumption.
b. The probative value of notarial acts
art. 2819
CCQ
art. 2818
CCQ


To be authentic, a notarial act shall be signed by all the parties; it then makes proof against all persons of
the juridical act which it sets forth and of those declarations of the parties which directly relate to the
act. […]
The recital, in an authentic act, of the facts which the public officer had the task of observing or
recording makes proof against all persons.
The notarial act makes proof against all persons (n.b. not only the parties to the juridical act) of three types
of information:
o 1. The juridical act set forth in the notarial act
 i.e. would prove that the contract exists and what its terms are
o 2. Facts stated by the parties in declarations made in notarial acts which directly relate to the
juridical act
o 3. Other facts stated in the notarial act that the notary had a duty to record/observe when the juridical
act was executed (art. 2818)
 Ex. the identity of the parties (within limits), their addresses, date and place of execution of
the juridical act (see the Notaries Act for more)
 The notary has an obligation to verify the truth of these kinds of things, and correctly record
them
Note: “makes proof” means the judge is compelled to believe the notarial act, regardless of contradictory
evidence. It is an irrebuttable presumption in favour of its absolute probative value.
c. Contradicting the terms of a notarial act

It is possible to contradict the terms of a notarial act, but there are two distinct forms of challenges that may
be made to it
o 1. Challenges requiring improbation
o 2. Challenges not requiring improbation
 Improbation is a special procedure to which the notary will be called as a party and given the opportunity to
explain
 Improbation is necessary when the challenge to the notarial act is made on the basis that the
document inaccurately reports facts that the notary had a duty of personally observing and recording
Improbation is necessary only to contradict the recital in the authentic act of the facts which the
art. 2821
public officer had the task of observing.
CCQ
Improbation is not required to contest the quality of the public officer or witnesses or the signature of the
public officer.


This makes sense: a challenge to the terms of the juridical act on the basis that they were recorded
improperly constitutes an attack on the notary’s work, and it is right that the notary should have the
opportunity to defend their professional reputation
N.B. arts. 2863-2864 do not apply to improbation
o Bachand says this makes no sense – the rationale for arts. 2863-64 still applies here; we want to hold
parties to the contracts they sign
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
Improbation is not necessary if the challenge is that the notarial act incorrectly records facts that the notary
did not have the personal duty of observing – see this case:
Salomon v. Pierre-Louise (2001) – CVL (QCA)
Facts: S instituted an action against P-L to be declared co-owner of a building that P-L acquired by notarial act
of sale (to which S was not party). Trial judge refused to hear the evidence demonstrating that a society existed
between S and P-L as long as S continued to impugn the validity of the notarial act by means of testimony and
without improbation.
Issue: 1. Can S use testimony to contradict/vary a notarial act? 2. Can S proceed to impugn the validity of the
notarial act without improbation? Holding: 1. & 2. Yes.
Reasoning:
Issue 1: Use of Testimony to Contradict a Writing
 Only the parties to a juridical act set forth in writing are disabled from using testimony to contradict it or
vary its terms (art. 2863)
 S is not a party to the act in this case  is free to use testimony to contradict it
Issue 2: Necessity of Improbation
 Art. 2821 improbation is only necessary if a party seeks to impugn the facts that the notary had a duty to
observe and record
 Notary has a duty to observe/record the following facts: date/place of signing, accomplishment of
formalities, identity of parties (with limits), the juridical act the parties wish to set forth, the parties’ consent
and signatures
 Notary is not responsible for truth of the declarations made to him/her by the parties and which he set down
 The declarations made to the notary by the parties which he did not have a duty to personally observe can be
contradicted by all the ordinary means of evidence
 In this case, the parties are not alleging that the notary wrongly recorded the parties’ declarations; are
saying that the declarations made were false  therefore, no improbation is necessary
Ratio: Improbation is only necessary when a party seeks to undermine the truth/validity of a fact that the notary
had a duty to observe personally and record.

As this case shows, when improbation is not required, arts. 2863-2864 apply
1b. Authentic Acts

Notarial acts are part of a larger category of authentic acts – comprises all documents received by a public
officer who has a duty to confer authenticity on such documents
art. 2814
CCQ


The following documents in particular are authentic if they conform to the requirements of law:
(1) official documents of the Parliament of Canada or the Parliament of Québec;
(2) official documents issued by the government of Canada or of Québec, such as letters patent, orders and
proclamations;
(3) records of the courts of justice having jurisdiction in Québec;
(4) records of and official documents issued by municipalities and other legal persons established in the
public interest by an Act of Québec;
(5) public records required by law to be kept by public officers;
(6) notarial acts;
(7) minutes of determination of boundaries.
The documents listed in art. 2814 are authentic in the sense that they also make proof of information the
public officer had a duty to observe/record (art. 2818)
The rules of improbation are arguably relevant here – probably necessary to challenge the terms relating to
facts that the public officer had a duty to observe
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
The list in art. 2814 is not exhaustive, and paragraph 5 substantially broadens the list – but courts will not
characterize a document as an authentic act lightly (because it has such serious consequences for its
probative value)
Bertrand Durand Inc. v. Acibec Ltd. (1995) – CVL (QCA)
Facts: One party is arguing that an affidavit should be disregarded because when it was created, it did not
conform to the proper formalities (specifically, the person signing it/giving the information contained in it was
not sworn in). It is therefore no longer an “authentic act” within the meaning of art. 2814. The commissioner of
oaths says the person was sworn in.
Issue: Are affidavits authentic acts within the meaning of art. 2814 (CCLC equivalent)? Holding: No.
Reasoning:
 Article 2814 is discussing public documents; an affidavit is a private document that cannot be read into the
general clause found in para. 5 (ejusdem generis rule)
Ratio: Affidavits are not authentic acts.
2. Private Writings
a. Characterization of a Private Writing
 A private writing is a document setting forth a juridical act that has the signatures of all the parties
 It has no other formal requirements
 N.B. a notarial act that is missing a formality becomes a private writing
 Ex. of a private writing = a contract signed by both parties
art. 2826
CCQ
art. 2827
CCQ
A private writing is a writing setting forth a juridical act and bearing the signature of the parties; it is not
subject to any other formality.
A signature is the affixing by a person, to a writing, of his name or the distinctive mark which he regularly
uses to signify his intention.
b. Probative Value of a Private Writing
 A private writing proves consent and the terms contained within it (art. 2829)
 Typical exception (to avoid fraud): private writing does not make proof of the date on which the juridical act
was concluded against third parties (art. 2830)
o Exception to this exception: acts carried out in the ordinary course of business of an enterprise (art.
2830)
art. 2829
CCQ
art. 2830
CCQ
A private writing makes proof, in respect of the persons against whom it is proved, of the juridical act
which it sets forth and of the statements of the parties directly relating to the act.
A private writing does not make proof of its date against third persons but that date may be
established against them in any manner.
However, writings relating to acts carried out in the ordinary course of business of an enterprise are
presumed to have been made on the date they bear.
Private writings do not make proof of their date against third parties:
Dans l’affaire de la faillite de: CDI Industries Inc. – CVL
Facts: CDI Industries went bankrupt. Its syndic is looking to have an act of assignment of lease of a building
(with option of purchase) annulled because he alleges that it was ceded for nothing to the brother of the sole
shareholder of CDI (through the company that the brother is the sole shareholder of) in order to deprive CDI’s
creditors of the value of the building. Syndic alleges that the date of the assignment of lease is phony and thus
the agreement should not be opposable to him.
Issue: Is the date of the assignment of lease (with option to purchase) proven by the contract in which it is
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stated? Holding: No.
Reasoning:
 Arts 2829/30  a private writing makes proof of its contents, except its date (exception to the exception:
contracts concluded in the normal course of business)
o This is not a contract concluded in the normal course of business of either party
o So contract does not make proof of its date
 The preponderance of proof in fact tends to show that the contract was not concluded on the date which the
parties said it was concluded
Ratio: A private writing makes proof of its contents, except its date (unless the contract is concluded in the
normal course of business of an enterprise).
c. Contesting a Private Writing
 Can contradict the terms of a private writing using any evidence that isn’t testimonial (art. 2863), unless the
situation falls in one of the exceptions to art. 2863.
3. Other Writings
a. Characterization of Other Writings
 An “other” writing is a document setting forth a juridical act which are neither notarial acts nor private
writings
o Ex. exchange of emails or faxes which express consent to enter into a contract in writing which is
never actually made and signed
b. Probative Value of Other Writings
 Probative value of other writings is not specifically assigned – it’s at the discretion of the court
 Exception = unsigned writings created in the regular course of business are bumped up to private writings
(art. 2831)  ex. receipts, pay stubs
art. 2831
CCQ
An unsigned writing regularly used in the ordinary course of business of an enterprise to evidence a
juridical act makes proof of its content.
c. Contestation of Other Writings
 Other writings can be contested in any manner
Writings contemplated in this section [Other Writings] may be contested in any manner.
art. 2836
CCQ
***THIS IS ANOTHER EXCEPTION (no. 6) TO ART. 2863 – CAN USE TESTIMONY. Art. 2863 only applies to
private writings and notarial acts.
The Common Law’s Approach to Documentary Evidence Used to Prove Juridical Acts





The distinction between juridical acts and facts is unknown in the common law – so there is no general
requirement that juridical acts only be proved using documentary evidence
Likewise, there is no limitation on testimonial evidence proving the existence of a juridical act
There are also no explicit rules regulating the probative value of documents setting out a juridical act
o In general, the CML does not regulate the probative value of evidence – generally leave it to the
discretion of the adjudicator
There are no such thing as notarial acts
The CML’s approach to documentary evidence is encapsulated in 2 rules: the best evidence rule and the
parol evidence rule
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The Best Evidence Rule


General idea: the contents of a document can only be proved using the original of that document
The effect of this rule: copies of a document/testimonial evidence are inadmissible to prove the contents of
the document
o Need the original document to prove the contents – every other form of evidence is inadmissible
o This only applies to the proof of the contents, not the existence of the (juridical act)
Rule 1002
USFRE
To prove the content of a writing, recording, or photograph, the original writing, recording, or
photograph is required, except as otherwise provided in these rules or by Act of Congress.
The CCQ rule codifies a traditionally CML rule, as well as its traditional exception:
A juridical act set forth in a writing or the content of a writing shall be proved by the production of the
art. 2860
original or a copy which legally replaces it.
CCQ
However, where a party acting in good faith and with dispatch is unable to produce the original of a
writing or a copy which legally replaces it, proof may be made by any other means.
Exceptions to the best evidence rule:

Traditional exception: inability to produce the document despite good faith and dispatch (see art. 2860, para.
2)
Rule 1004
USFRE

Exceptions are also made for public records – see ss. 23-26 Canada Evidence Act; see also arts. 2815-2817
CCQ on copies of public authentic acts in Quebec
Rule 1005
USFRE


Admissibility of Other Evidence of Contents
The original is not required, and other evidence of the contents of a writing, recording, or
photograph is admissible if-(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any available judicial
process or procedure; or
(3) Original in possession of opponent. At a time when an original was under the
control of the party against whom offered, that party was put on notice, by the pleadings
or otherwise, that the contents would be a subject of proof at the hearing, and that party
does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a
controlling issue.
Public Records
The contents of an official record, or of a document authorized to be recorded or filed and actually
recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by
copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has
compared it with the original. If a copy which complies with the foregoing cannot be obtained by the
exercise of reasonable diligence, then other evidence of the contents may be given.
Exceptions are also made for business records – see ss. 29-30 Canada Evidence Act
The movement in exceptions to the best evidence rule is towards a discretionary approach:
Rule 1003
USFRE
Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the
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authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu
of the original.
The Parol Evidence Rule

The general idea: where record of a transaction is embodied in a document, extrinsic evidence is
inadmissible to add/vary/contradict the terms of the document (this is the CML equivalent to art. 2863)
Cross and Tapper on Evidence, “Section 3. Admissibility of Extrinsic Evidence”
 General rule: Parol testimony cannot be received to contradict, vary, add to, or subtract from the terms of a
(valid and effective) written K or the terms in which the parties have deliberately agreed to record any part
of their contract (also not allowed for any transaction the law requires to be in writing)
 Admissibility of evidence of a variation of a written K is dependent on substantive law
Exceptions
 Any subsequent variation, or discharge, of a written agreement is admissible generally
 Extrinsic evidence is admissible to show that a written K is void for mistake, illegality, non-compliance with
statute, voidable on account of fraud/misrepresentations (any document, not just Ks in fact, can be
questioned by extrinsic evidence this way)
 Absence of consideration may be proved by extrinsic evidence
 Extrinsic evidence may be given as to the “real nature of the K”
 To establish trade usage (because then the K is party written, partly oral)
In Aid of Interpretation
 Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person
having all the background knowledge which would reasonably have been available to the parties in the
situation in which they were at the time of the K
o Background includes everything which would have affected the way the K’s language would have
been understood by a reasonable man
o Excludes previous negotiations of parties
 Words of K must be ambiguous for the court to interpret them; but even if unambiguous, may still be
interpreted in light of surrounding circumstances when it can be shown that the clear words failed to capture
the intentions of the parties




This rule has the same rationale as art. 2863: people should be bound by what they set down in writing
Exceptions:
o Subsequent transactions (cf. Valuex)
o Validity/effectiveness of the transaction
o Incomplete documents (K partly oral/partly written)
o Interpretation (see case below)
This rules doesn’t seem to apply to third parties
There is no equivalent to the commencement of proof exception found in CVL
Canada Newspapers Co. v. Kansa General Insurance Co. (1996) – CML (OCA)
Facts: CNC contracted with Kansa to get libel insurance. Generally when offering insurance for litigation,
Kansa stipulates that it must handle the defence. CNC is a newspaper, however, and had values of journalistic
integrity to protect (as well as economic interests. i.e. they would not only be defending when it made economic
sense to do so); so they came to an agreement that defence be handled by in-house counsel for CNC as well as a
third-party lawyer, and these would report their activities to Kansa. Nothing is said in the insurance policy they
signed about this reporting arrangement.
Issue: Is testimonial evidence of the reporting arrangement admissible? Holding: Yes.
Reasoning:
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
Kansa submits that the trial judge erred in giving effect to an oral arrangement respecting the conduct of
litigation which Kansa says contradicted the terms of the policy
o Violation of the parol evidence rule (“the language of a written document may not be contradicted
by oral evidence”)
 In fact, the reporting arrangement was not inconsistent with the terms of the policy; and it is
important to establish the factual matrix on which the agreement rests
Ratio: Oral evidence is admissible to modify a written agreement as long as it does not contradict the contract
and helps to establish the conditions under which the parties agreed.
III. RULES THAT CONCERN THE USE OF TESTIMONY
Hearsay: the Common Law’s Suspicion
What is Testimony?

Testimony is: a i) factual assertion ii) which is relied on in an attempt to prove the fact asserted
This CCQ article provides a good definition of what testimony is:
Testimony is a statement whereby a person relates facts of which he has personal knowledge or whereby
art. 2843
an expert gives his opinion.
CCQ
art. 2845



To make proof, testimony shall be given by deposition in a judicial proceeding unless otherwise agreed
by the parties or provided by law.
The probative force of testimony is left to the appraisal of the court.
To be admissible, testimony needs to be given in court. Why?
o Adjudicator is in a better position to assess the credibility of the witness and the reliability of the
testimony when the witness is in front of them
 Non-verbal communications of the witness are important in this respect
o Also, testimony made in court is subject to cross-examination
o People are under oath when they testify in court (additional incentive to tell the truth)
The obverse of the admissibility requirement that testimony be made in court is that a factual assertion made
out of court cannot be relied on to prove that factual assertion
Evidence (irrespective of its nature as testimonial, documentary, or real) relating to an out-of-court
declaration asserting a fact is inadmissible if adduced with a view to proving the fact asserted
o Because of the rule that testimony must be given in court to be admissible
Definition of Hearsay


Hearsay is:
o i. an out-of-court factual assertion (nature)
o ii. Relied upon to prove the fact asserted (purpose)
Hearsay is generally inadmissible.
Rule 801(c)
USFRE
s. 1(2)(a) UK Civil
Evidence Act
Rule 802 USFRE
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.
“hearsay” means a statement made otherwise than by a person while giving oral evidence in the
proceedings which is tendered as evidence of the matters stated.
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the
Supreme Court pursuant to statutory authority or by Act of Congress.
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


Hearsay exclusionary rule is not engaged if the out-of-court declaration is:
o i. NOT a factual assertion
o ii. NOT relied upon to prove the fact asserted
Only when a litigant is trying to use an out-of-court statement AS TESTIMONY does the statement
constitute hearsay and is therefore inadmissible
To see if an out-of-court statement is hearsay, ask whether adducing it advances the case of the person trying
to adduce it – if so, it’s probably hearsay
TO FIND OUT IF SOMETHING IS HEARSAY:
1. IS IT AN OUT-OF-COURT DECLARATION?
2. IS IT A FACTUAL ASSERTION?
3. IS IT BEING USED TO PROVE THAT VERY FACTUAL ASSERTION?
IF YES TO ALL THREE, THE STATEMENT IS HEARSAY AND THE HEARSAY EXCLUSIONARY RULE
OPERATES UNLESS IT FALLS INTO AN EXCEPTION. IF NO TO ANY OF THE THREE, THE
STATEMENT IS NOT HEARSAY.


Rationale for the hearsay exclusionary rule:
o It’s hard to know the weight of the facts related in hearsay
o So the information is very easy to mishandle
o Hearsay is therefore excluded entirely from the fact-finding process
Sometimes, however, hearsay is reliable or necessary enough to use in the proceeding – there have been
some exceptions carved out by judges to the hearsay exclusionary rule. The recurring exceptions have been
codified in the USFRE.
Traditional Exceptions to the Hearsay Exclusionary Rule

The standard common law exceptions to the hearsay exclusionary rule belong in two categories:
o 1. Admissible hearsay regardless of the declarant’s availability because the hearsay is as reliable or
more so than the declarant’s in-court testimony
o 2. Admissible hearsay only if the declarant’s testimony is unavailable (declarant’s in-court testimony
would be preferred if possible)
1. Admissible Hearsay Regardless of Declarant’s Availability
See especially Rule 803 USFRE.

a. Admissions: opponent’s out-of-court assertions. Anything that you say can be used against you in civil
court. The other party will be there in court to explain or refute their alleged statements, anyway.
o USFRE doesn’t even consider these statements to be hearsay at all:
Rule 801
USFRE
(d) Statements which are not hearsay.
A statement is not hearsay if-(2)Admission by party-opponent. The statement is offered against a party and is
(A) the party's own statement, in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its truth
See also arts. 2850, 2852 of CCQ.

b. Spontaneous Statements: these are statements happening at the time of the even – there is generally no
time to make up a lie. Also, there would be no inaccuracies in the information due to the passage of time
since the event.
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Rule 803
USFRE

c. Recorded Recollections: if a witness is unable to currently recollect, but there is a recorded recollection
made when the event was fresh in the witness’s mind, the court will be less suspicious of it and it will be
admissible.
Rule 803
USFRE

(1) Present sense impression. A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited utterance. A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing
state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental
feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's
will.
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown
to have been made or adopted by the witness when the matter was fresh in the witness' memory and to
reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but
may not itself be received as an exhibit unless offered by an adverse party.
d. Regularly-Kept Business Records: in the general course of business, it’s likely that no one remembers
the specific transaction at issue in the case. The people who work at a business are responsible for recording
these things accurately.
Rule 803
USFRE
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity,
and if it was the regular practice of that business activity to make the memorandum, report, record or data
compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification
that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of
information or the method or circumstances of preparation indicate lack of trustworthiness. The term
"business" as used in this paragraph includes business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.
See also s. 30 of the Canada Evidence Act for a corresponding provision.

e. Public Records and Reports: it is the duty of public officials to record these facts correctly. Cf. Authentic
acts in the civil law – but n.b. this rule is one of ADMISSIBILITY, not PROBATIVE VALUE.
Rule 803
USFRE
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant
to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal
cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and
proceedings and against the Government in criminal cases, factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of information or other circumstances
indicate lack of trustworthiness.
1. Admissible Hearsay Only if Declarant Is Unavailable
See especially Rule 804 USFRE.

Unavailability means, broadly, the declarant cannot come to court because of physical or legal impediments.
Rule 804
(a) Definition of unavailability.
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USFRE

"Unavailability as a witness" includes situations in which the declarant-(1) is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the declarant's statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant's
statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant's statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing
physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to
procure the declarant's attendance (or in the case of a hearsay exception under
subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or
other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or wrongdoing of the proponent
of a statement for the purpose of preventing the witness from attending or testifying.
Includes:
Rule 804
USFRE
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different
proceeding, or in a deposition taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered, or, in a civil action or
proceeding, a predecessor in interest, had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that the declarant's death was
imminent, concerning the cause or circumstances of what the declarant believed to be impending
death.
(3) Statement against interest. A statement which was at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another, that a reasonable person in the
declarant's position would not have made the statement unless believing it to be true. A statement tending
to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement.


A statement against interest is different from an admission because a statement against interest is made by
someone who is not a party to the case.
The problems with all these traditional exceptions to the hearsay exclusionary is that they are messy (before
they were helpfully codified, at least in the States. Not so in Canada). Have to deal with a huge body of
precedent – causes the court to leave out too much helpful hearsay.
Recent Developments in the Law of Hearsay

All the recent developments in the various jurisdictions that have a hearsay exclusionary rule have three
things in common:
o Increase in the admissibility of hearsay
o Attempt to make the rules clearer
o Increase in the discretion given to courts to decide on admissibility of hearsay
United States
 The traditional exceptions are still applicable; their clarity has been wildly increased by their codification in
the Federal Rules of Evidence
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
But hearsay that does not fit in any of the traditional exceptions can still be admitted under Rule 807, the
residual exception that lies at the discretion of the court:
Rule 807
USFRE
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees
of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is
offered as evidence of a material fact; (B) the statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of justice will best be served by admission of the
statement into evidence. However, a statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide
the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the
statement and the particulars of it, including the name and address of the declarant.
United Kingdom
 Huge change: the UK completely did away with the hearsay exclusionary rule (in civil matters only)
 Shift in emphasis from admissibility towards weight of the hearsay
s. 1(1) UK Civil
Evidence Act
In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
Common Law Canada
 The “principled approach” to the admissibility of hearsay is set out in the following very important case:
R. v. Khelawon (2006) – CML (SCC from OCA)
Facts: Five elderly residents of a retirement home told various people (worker in the retirement home, the
doctor, police) that they were assaulted by the defendant, the manager of the home. By the time of trial, 4 had
died of old age and the last was no longer competent to testify. Four had made videotaped statements to the
police, which were all pretty similar. This appeal is about the admissibility of 1 of the videotaped statements.
Issue: Are the hearsay statements admissible? Holding: No.
Reasoning (Charron J.):
 Basic rule of evidence: all relevant evidence is admissible. There are many exceptions to this rule. One is
hearsay: even relevant hearsay is not admissible (unless there is an exception).
 What is hearsay? 2 elements:
o The statement is adduced to prove the truth of its contents
o Absence of a contemporaneous opportunity to cross-examine the declarant
 N.B. This applies to witnesses who are before the court but have changed their story – their
inconsistent out-of-court statement becomes hearsay
 Central concern underlying the hearsay exclusionary rule: the difficulty of testing the reliability of the
declarant’s assertion (hard to know how much weight to assign to hearsay)
o Adversarial system places a lot of value on: calling witnesses in open court, testimony under oath,
ability to observe demeanour of witness, opportunity to test the testimony by cross-examination
o By ensuring that litigants get the opportunity to confront adverse witnesses, the hearsay rule serves
as a cornerstone of a fair justice system
The Principled Approach to Hearsay Exceptions
 Hearsay evidence is presumptively inadmissible – unless it falls under an exception to the hearsay rule (the
traditional exceptions to the hearsay rule remain presumptively in place).
 Hearsay admitted under an exception can be challenged to determine whether it is supported by indicia of
necessity and reliability (i.e. hearsay that falls within an exception may still be inadmissible because it is not
necessary/reliable enough)
 If hearsay evidence does not fall within a hearsay exception, it may still be admitted if it fulfils the
requirements of necessity and reliability (on a voir dire)
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o
The onus is on the person seeking to adduce the evidence to establish these criteria on a balance of
probabilities
Comment on Reliability
 The admissibility inquiry for hearsay is concerned with threshold reliability, not ultimate reliability (i.e.
weight given to the evidence in deciding the issues)
The Approach to Hearsay
1. Is it hearsay?
a. Is the statement adduced to prove the truth of its contents?
b. Is there no opportunity for a contemporaneous cross-examination of the declarant?
2. If the proposed evidence is identified as hearsay, it is presumptively inadmissible
3. Does the hearsay fall within a traditional exception? If so, it is presumptively admissible
4. If not, must move to principled approach. Must interpret necessity and reliability flexibly, taking account
of the circumstances of the case.
a. The (Threshold) Reliability Test: is the hearsay reliable enough?
i. Is the hearsay inherently trustworthy enough that cross-examination would be of little
marginal utility in establishing the value of the evidence?
1. Examples: testimony in former proceedings, no motive to lie, no lapse in time so
that perception/memory become an issue, no likelihood of influence by another,
statement is corroborated by other admissible evidence
ii. OR: Can the truth or accuracy of the hearsay nonetheless be sufficiently tested by other
means (i.e. substitute method for trier of fact to rationally evaluate the evidence)?
1. Examples: availability of the declarant to be cross-examined (on their prior
inconsistent statement)
b. The Necessity Test: is the hearsay necessary?
i. Necessity is given a flexible definition
ii. Necessity is not equated with the unavailability of the witness: it is based on the
unavailability of the testimony
iii. The context giving rise to the need for the hearsay evidence may impact on the degree of
reliability required to justify its admission
Application to This Case
 The evidence tendered is undoubtedly hearsay; it does not fall within traditional exceptions; can it be
admitted under the principled approach?
 The hearsay evidence is undoubtedly necessary, the declarant is dead
 Is it reliable?
o No adequate substitutes to cross-examination to test reliability of evidence – only the police video
o So, is the hearsay inherently trustworthy? No. Declarant’s mental capacity at issue, may have been
influenced, corroborating evidence was inadmissible, the things he says in the video are contestable
by expert evidence (i.e. his injuries could have occurred through a fall as well as a beating)
 Hearsay in this case is inadmissible.
Ratio: The principled approach to hearsay exclusionary rule requires that in order to be admissible, hearsay must
be necessary and reliable.
Bachand on Khelawon:
 Note that necessity is conceived very broadly: see R. v. B.(K.G.)  case about a prior inconsistent statement
of a witness. SCC allowed the previous statement as substantive evidence (i.e. not just to impeach the
witness’s credibility, but as proof of the fact asserted), because the necessity criterion was met
 Traditional exceptions still matter but are not determinative – i.e. hearsay falling within a traditional
exception but not meeting necessity/reliability requirements will be excluded
o Cf. in the US, the necessity/reliability test is an extra exception – the traditional exceptions are still
determinative there
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
In Canada, it is as though there is a presumption that hearsay is admissible if it falls within a traditional
exception – but that presumption can be rebutted if the hearsay does not meet the necessity/reliability test
Hearsay: Quebec’s Approach
This case is for historical purposes: showed that the hearsay exclusionary rule applied in QC
Morrow v. Royal Victoria Hospital – CVL (SCC from QCA)
Facts: Incomplete facts in the judgement. Something about whether a conversation between a witness and a
deceased defendant is admissible.
Issue: Does the hearsay exclusionary rule apply in Quebec? Holding: Yes.
Reasoning (Pigeon J.):
 Article of the old CCP said that witnesses had to be examined in an open court, in the presence of the
opposite party
o Implicit exclusion of hearsay evidence here; if allow hearsay (i.e. let a witness report what someone
else has said to them), are allowing the third person to testify without being examined by the judge
and without the presence of the opposite party
o By admitting hearsay, are evading examination of witnesses in open court, taking of oath, cross-ex
 In principle, since rule is of English origin, all its exceptions must be imported into civil law of QC as well
o Ex. admissions of the other party
Ratio: The hearsay exclusionary rule operates in QC, as do all the exceptions to that rule.
Commentary: This case gives a historical sense of how the hearsay exclusionary rule was received in QC.
Before this case, it was unclear if it applied; after, the hearsay exclusionary rule was accepted in QC (along with
all its traditional exceptions).


Quebec’s approach to hearsay looks a little bit like the principled approach articulated in Khelawon
The civil law distinguishes between hearsay in general, previous inconsistent statements by a witness, and
admissions
art. 2869
CCQ
art. 2870
CCQ
art. 2871
CCQ




A statement made by a person who does not testify in a judicial proceeding or by a witness prior to a
judicial proceeding is admissible as testimony if the parties consent thereto; a statement that meets the
requirements of this chapter or of the law is also admissible as testimony.
A statement made by a person who does not appear as a witness, concerning facts to which he could
legally testify, is admissible as testimony on application and after notice is given to the adverse party,
provided the court authorizes it.
The court shall, however, ascertain that it is impossible for the declarant to appear as a witness, or that
it is unreasonable to require him to do so, and that the reliability of the statement is sufficiently
guaranteed by the circumstances in which it is made.
The reliability of documents drawn up in the ordinary course of business of an enterprise, of documents
entered in a register kept as required by law and of spontaneous and contemporaneous statements
concerning the occurrence of facts is, in particular, presumed to be sufficiently guaranteed.
Previous statements by a person who appears as a witness, concerning facts to which he may legally
testify, are admissible as testimony if their reliability is sufficiently guaranteed.
Note that some of the presumptions in art. 2870 correspond to some of the traditional exceptions to the
hearsay exclusionary rule (court can also rely on other exceptions that do not appear in 2870)
Also note that necessity is not mentioned in art. 2871 – is this an oversight by the legislator?
Like the US FRE, CCQ does not even see admissions by the parties to the lawsuit as hearsay – they are
regulated in a different section of the code (arts. 2850-2853, 2867).
Please note that out-of-court admissions can only be proved using evidence that is admissible for proving the
fact which is its object:
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art. 2867
CCQ
An admission made outside the proceeding in which it is invoked is proved by the means admissible as
proof of the fact which is its object.
This case discusses if there is residual discretion of the court to exclude a previous statement by a witness even if
the requirements for admissibility are met under art. 2871. Concludes yes.
Promutuel Drummond (Insurance Co.) v. Gestions Centre du Quebec & 9025-6835 QC Inc. (2002) – CVL
(QCA)
Facts: PD is an insurance company that insured a building owned by either GCQ or 9025 (that’s the question at
issue in the case, for insurance purposes). Building burnt down. PD tried to adduce evidence of an interrogation
of the 2 presidents of the companies (under oath, with lawyers) conducted by their lawyer and recorded by a
stenographer. Trial judge refused to admit it.
Issue: Is evidence of the interrogation admissible? Holding: No.
Reasoning:
Chamberland J.C.A. (Robert J.C.A. concurring):
 2871 CCQ: Previous statements of a witness are admissible if their reliability is sufficiently guaranteed
o In the past, previous statements of a witness were not admissible except to impeach their
credibility; now they are admissible as substantive evidence of their content as long as they are
sufficiently reliable
o Can apply in situations in which the witness can no longer remember (due to length of time or
mental deterioration), if it contains an admission they made not in court
 In this case, conditions under which the previous statements were taken make them reliable
 But the judge maintains discretion in its admissibility – permissive language in art. 2871 (efficiency
reasons, events not that far in the past so no need, etc)
 Chamberland will not disturb the trial judge’s use of his discretion to exclude the evidence
Beauregard J.C.A. (dissenting):
 The out-of-court declaration of a party to the trial has always been admissible, not only to impeach their
credibility as a witness but also as substantive evidence of its contents
 So 2871 really only applies to a witness who isn’t party to the dispute – no need for its invocation here
 But when using 2871, Beauregard does not agree with majority that judge has discretion to exclude evidence
that is otherwise proved to be sufficiently reliable
Ratio: Court’s interpretation of 2871 – even if reliability test is met, the judge has discretion to exclude the
evidence.
Bachand on Promutuel:
 The textual argument for the majority’s interpretation of art. 2871 is not that convincing – although the
French version says “peuvent” be admitted (permissive language), English version says “are” admissible
(not permissive)
 The best way to justify this holding is to refer to the judge’s general discretion to exclude relevant evidence
on the basis of cost efficiency
 Bachand thinks this case is about admissions, not hearsay – so should be admissible. Dissent almost gets
there, but not quite.
The Civil Law’s Suspicion of Testimony in General (Continental, not Quebec)


The civil law sets less store by testimony in general
o We have already seen the limitations the civil law places on the use of testimonial evidence in order
to prove a juridical act
There is no general rule limiting the admissibility of hearsay, however: this is because it’s not that necessary
o There is no cross-examination in CVL fora, anyway
o Often not all judges see a witness testify anyway (only 1 judge sees witness and then reports back)
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o
In civil law, a party will never take the stand and give a long self-serving monologue – this is totally
typical of a CML trial
 A judge will ask a witness pointed questions
 Since they are interested in the outcome, CVL accords little weight to the testimony of the
parties themselves
Commentary P-16B. In some legal systems the statements of a party are not admissible as evidence or are accorded
diminished probative weight. Principle 16.1 accords a party’s testimony potentially the same weight as
on P. 16
that of any other witness, but the court in evaluating such evidence may take into account the party’s
UNIDROIT
interest in the dispute.
IV. RULES THAT CONCERN THE USE OF REAL EVIDENCE


Real evidence is (obviously) not testimonial evidence nor is it documentary evidence
Real evidence is any object adduced in an attempt to prove facts that the fact-finder is asked to
perceive directly with their own senses
o There are no special requirements for its admissibility beyond relevance
art. 2854
CCQ
art. 2868
CCQ

The production of material things is a means of proof which allows the judge to make his own findings.
Such a material thing may consist of an object, as well as the sense impression of an object, fact or place.
Proof by the production of a material thing is admissible in accordance with the relevant rules on
admissibility as proof of the object, the fact or the place represented by it.
Real evidence, interestingly, often is thought to include photos and videos – so the best evidence rule may
apply here (see Rule 1002 USFRE).
V. AUTHENTICATION REQUIREMENTS


Basic rule: party seeking to rely on a document or real evidence must prove what it is and where it
comes from by means of independent evidence
o It is a condition of admissibility of such evidence that the party seeking to adduce it prove that it is
what they claim it is
o There is no general presumption of authenticity
Note: this has nothing to do with relevance/weight – it is a technical condition.
Civil law:
art. 2828
art. 2835
CCQ
art. 2855
A person who invokes a private writing has the burden of proving it. […]
A person who invokes an unsigned writing shall prove that it originates from the person who he claims to
be its author.
The production of material things does not have probative force until their authenticity has been
established by separate proof. […]
Common law:
Rule 901(a) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent claims.
USFRE



There are a lot of exceptions to this rule: ex. authentic acts in the civil law (art. 2813), public records in the
common law (Rule 902 USFRE)
In practice, authenticity is often (presumed to be) admitted in the pre-trial stage. There are procedural
provisions in place to ensure admission of authenticity when it is reasonable (see arts. 89, 403 CCP).
What about electronic evidence?
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o
o
I.
Reliability concerns about electronic documents are generally addressed through the reliability of the
system in which the document is contained (see s. 4(1) of the Uniform Electronic Evidence Act)
See also arts. 2837-2840 CCQ.
EXAMPLES OF RULES PRIMARILY AIMED AT ENSURING THE EFFICIENCY OF THE ADJUDICATIVE PROCESS
I. THE DOCTRINE OF RES JUDICATA AND RELATED MATTERS




Fundamental idea of res judicata: adjudicative decisions ought to be final. Relitigation of disputes ought to
be avoided as much as possible
The evidentiary perspective: generally speaking, evidence relating to matters that have been previously
adjudicated is inadmissible
The basic principle is the same in the civil law and the common law but the specific rules are quite different
See UNIDROIT Principle 28
The Common Law

There are three kinds of res judicata doctrines in the common law:
o a. Cause of action estoppel
o b. Issue estoppel
o c. Abuse of process
a. Cause of Action Estoppel (aka Claim Preclusion)





Evidence is inadmissible if it relates to a cause of action that has already been finally adjudicated
between the same parties
o A cannot pursue B for a cause of action that A has already pursued against B, and has been
determined by a court of law; the evidence adduced in such an attempt will be inadmissible, and
therefore A’s second claim will be dismissed
The difficulty with this doctrine is with regards to the concept of “cause of action” – what is it? Courts have
so far not been able to define it satisfactorily.
What if two suits originate from the same factual circumstances, but the nature of the claims is not identical?
o It is hard to tell if suit #2 is based on the same “cause of action” as suit #1
The courts will generally find that suit #2’s claim is precluded if its preclusion serves the rationales for the
rule of cause of action estoppel:
o Ensuring the finality of a tribunal’s determinations regarding the parties’ rights and obligations
 Want to avoid double recovery, conflicting judgements
 This rationale encourages a narrow view of cause of action
o Preventing multiple actions relating to the same occurrence
 The doctrine forces parties to raise all their claims in one action
 Limits the risk of harassment of defendants by plaintiffs
 This rationale encourages a broad view of cause of action
 The courts are tending towards this interpretation of claim preclusion (maintenance of
judge’s discretion to allow the second suit if it would be unjust not to)
See Danyluk for a discussion of claim preclusion
b. Issue Estoppel
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
Even if the second suit is based on a different cause of action, evidence offered in the second suit may be
found to be inadmissible if it is adduced in an attempt to relitigate issues that have already been decided in a
first suit involving the same parties
Danyluk v. Ainsworth Technologies Inc. (2001) – CML (SCC from OCA)
Facts: D worked for ATI; she claimed that they owed her $300,000 in commissions. They contested that claim,
and D filed a complaint under the Employment Standards Act. Employment standards officer took her
statement/documents, called ATI and got their documents. D heard nothing for 6 months and then received
notice that her claim was denied – had no chance to make full answer to ATI’s arguments. During the six months
where she heard nothing, she had instituted an action in civil court.
Issue: Should D’s action in civil court be dismissed because of issue estoppel? Holding: No.
Reasoning (Binnie J.):
 Judicial decisions should be conclusive of the issues decided (unless reversed on appeal); the law seeks a
finality to litigation.
 Issue estoppel: any right, question, or fact distinctly put in issue and directly determined by a court of
competent jurisdiction cannot be re-tried in a subsequent suit between the same parties (for a different cause
of action).
The 2-step test (Dickson J. in Angle) for issue estoppel:
 1. Can Issue Estoppel be Applied?
o A. Has the same question been decided?
 Cause of action: comprises every fact which it would be necessary for the plaintiff to
prove in order to support his right to the judgement of the court (cause of action
estoppel means same set of material facts)
 Different causes of action may have one or more material facts in common
 Issue estoppel means that once a material fact is judged by the court, the same issue
cannot be relitigated in subsequent proceedings between the same parties
 Issue estoppel extends to issues of fact, law, mixed fact and law that are bound up with
the determination of that issue in the previous proceeding
o B. Was the judicial decision which is said to create the estoppel final?
o C. Were the parties the same?
 2. Should Issue Estoppel be Applied?
o The rules governing issue estoppel should not be mechanically applied
o Even when the three requirements are fulfilled, the application of the doctrine of issue
estoppel is left to the discretion of the judge
o Judge must ask whether it would work an injustice to apply it
o Can also consider: purpose/wording of the legislation, availability of an appeal process,
expertise of the decision-maker
 In this case, all the requirements for issue estoppel are fulfilled, but since the first proceeding was so unfair
and the plaintiff’s case has never really been heard, will not apply it
Ratio: The application of the doctrine of issue estoppel is left to the discretion of the judge.
Bachand on Danyluk:
 D’s second lawsuit is not based on the rights and obligations stated in the Employment Standards Act; it’s
based on the common law – so cause of action estoppel is not at issue here
 When the 3 requirements of issue estoppel are fulfilled, the second judge MAY prevent relitigation, not
MUST – issue estoppel is a discretionary doctrine
 The question of discretion is crucial in this case – D’s case fulfils the three requirements, but she argues that
the doctrine should not be applied and that she should still be permitted to relitigate
o Because of the employment standards officer’s violation of due process – it would be unfair to never
let D make her case
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o SCC agrees
Bachand does not agree – D did not exhaust all her avenues of appeal; she should not be permitted to pick a
new forum in which to sue the same defendant.
o She was represented by a lawyer from the first
Bachand thinks this decision sets a poor precedent which gives judges too much discretion on the doctrine of
issue estoppel
c. Abuse of Process
Toronto (City) v. C.U.P.E., Local 79 (2003) – CML (SCC from OCA)
Facts: Oliver, a recreation instructor for the City of Toronto, was convicted of sexual assault of a young boy,
confirmed on appeal. The city fired Oliver, who contested the decision with the help of his union. Labour
arbitrator ruled that the criminal conviction was admissible as prima facie but not conclusive evidence that
Oliver had sexually assaulted the boy. No new evidence was introduced, but the labour arbitrator held that the
presumption raised by the criminal conviction had been rebutted and that Oliver was dismissed without cause.
Issue: Is this relitigation of the facts permissible? Holding: No.
Reasoning (Arbour J.):
 The admissibility of the conviction is not at issue. The question is whether the criminal conviction can be
rebutted by evidence to the contrary.
o Sometimes, yes. Especially when the conviction in issue is that of a non-party
o Sometimes, no such evidence may be tendered. If issue estoppel, collateral attack, or abuse of
process bars the relitigation of facts essential to conviction, then the evidence will not be admissible.
o So, are there any doctrines which preclude relitigation of facts of Oliver’s conviction?
 Issue Estoppel
o Is a branch of res judicata (other branch = cause of action estoppel)
o Precludes relitigation of issues previously decided in court in another proceeding
o Three preconditions: same issue, judgement final, and same parties (Angle)
o Policy is efficiency, protection of interests of parties (should not be subject to vexatious litigation)
o The first two are met in this case, not the third (mutuality of the parties)
 There has been a lot of academic criticism of the mutuality requirement – but it is not the
time to get rid of it (yet)
o Issue estoppel has no application in this case – doesn’t engage the policies of issue estoppel
 Collateral Attack
o A court order, made by a court having jurisdiction to make it, stands as binding unless it is set aside
on appeal/lawfully quashed
o Such an order may not be attacked collaterally – i.e. in proceedings other than those whose
specific object is the reversal, variation, or nullification of the order
o A judicial order should not be questioned except by courts/proceedings provided to question it
o Union here is not seeking to overturn the conviction; are contesting it for the purposes of a different
claim with different legal consequences
o Are not seeking to deprive the criminal conviction of legal force – are attacking the correctness of
the factual basis of the decisions
o Collateral attack has no application here
 Abuse of Process
o Judges have an inherent/residual jurisdiction to prevent an abuse of the court’s process; to
prevent the misuse of the court’s procedure in a way that would bring the administration of
justice into disrepute
o Flexible doctrine – does not have specific requirements of issue estoppel
o Has been applied to preclude litigation in circumstances where the requirements of issue
estoppel are not met, but where allowing the litigation to proceed would violate such principles
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as judicial economy, consistency, finality, etc
o The focus is less on the interests of the parties and more on the integrity of the judicial decision
 In this case, abuse of process applies; the interests of the integrity of the administration of justice require that
the litigation be precluded
o How can the State decide that Oliver was guilty beyond a reasonable doubt of sexual assault, and
then be forced by an administrative decision to reinstate him in a job that places him in contact with
young children?
o Arbitrator was required as a matter of law to give full effect to the conviction
Ratio: When the requirements of issue estoppel are not fulfilled, the court may invoke abuse of process to
preclude the relitigation of an issue it has already decided and it would be against the interests of justice to
relitigate.
Bachand on City of Toronto:
 Since the abuse of process doctrine arises from the inherent jurisdiction of the court, is it applicable in QC?
Not sure.
 This case concerns the use of a criminal conviction in a civil case – but the principles it enunciates are
applicable to the use of prior civil cases in new ones
 One important consideration in making the decision whether or not to allow relitigation is whether the first
case provided enough incentive to the party to present full answer and defence – if not, relitigation might be
necessary for fairness
The Civil Law
art. 2848
CCQ
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The authority of a final judgment (res judicata) is an absolute presumption; it applies only to the object of
the judgment when the demand is based on the same cause and is between the same parties acting in the
same qualities and the thing applied for is the same.
However, a judgment deciding a class action has the authority of a final judgment in respect of the parties
and the members of the group who have not excluded themselves therefrom.
The three identities (same object, same cause of action, same parties) are necessary for res judicata to be
engaged in the civil law
This is much narrower than the CML cause of action estoppel – it’s not enough to show that there is the
same cause of action and the same parties  need to also show that the thing applied for is the same
There is nothing even close to an analogous doctrine to issue estoppel in CVL
So on its face, it seems as though there is a big opening for relitigation in CVL
But the triple-identity rule is not applied strictly by the QC courts
Rocois Construction (1990) – CVL (SCC) [class case]
Facts: 1st lawsuit: taken in Federal Court, based on Combines Investigation Act; claimed $1M in damages and
special costs. 2nd lawsuit: taken in Quebec Superior Court, based on Civil Code; claimed only $1M in damages.
Both based on same factual occurrences.
Issue: Does art. 2848 apply – i.e. is this issue res judicata? Holding: Yes.
Reasoning:
- object requirement met as both suits claimed essentially (though not identically) same thing
- cause requirement also met: although legal rules invoked not the same, both sets of rules are based on same
legal principles (liability based on wrongful conduct) and effect of both sets of rules on parties’ rights and
obligations very similar.
- I.e. material facts essentially the same (the facts as seen through the legal principles are the same)
Ratio: Expansive interpretation of “cause” and “object” requirements in art. 2848. Do not need perfect identity,
substantial identity will do.
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Ungava Mineral Exploration Inc. v. Mullan (2008) – CVL (QCA)
Facts: UME sold a mining property to Canadian Royalties Inc. (CRI). CRI discovered precious metals on the
property. UME thought they knew about the metals before the sale – applied to arbitration to have the contract
annulled (rejected and judgement homologated). Applied to arbitration a second time, claiming to have new
evidence and also seeking damages in addition to annulment of the K (rejected). Also instituted an action against
CRI and its representatives for damages in superior court. Trial J. found res judicata between the second
arbitration judgement and the present action.
Issue: Is the issue res judicata? Holding: Yes.
Reasoning (Bich J.C.A.):
 Identity of cause: UME is invoking the same factual ensemble and the same legal characterization of those
facts – the facts alleged to constitute the faults in the two cases are the same (the behaviour of the
defendants)
o Doesn’t matter if UME is suing the defendants in extra-contractual liability or CRI in contractual
liability  the thing sought is the same
 Identity of object: UME is seeking the vindication of the same rights, even though it’s being used to ask for a
different consequence
 Identity of parties: UME is suing the defendants, who represented and directed CRI – are effectively the
same parties as when UME sued CRI
Ratio: Very expansive interpretation of the triple identity in art. 2848 by QCA.
Bachand on Ungava:
 This decision really pushes art. 2848 towards its outer limits – the parties are different, the nature of the
action is different (annulment of K v. damages)
 Yet the QCA finds a way to expand art. 2848 so that it applies
o Is this the right way to achieve this result? The QCA wants to avoid the waste of relitigating issues –
could have used the abuse of process doctrine put forth in City of Toronto.
 Art. 2848 doesn’t give any discretion in its language – this expansion of its wording isn’t very legitimate
Ali v. Cie D’assurance Guardian du Canada – CVL
Facts: Ali and his son were convicted of committing arson on a building they owned in order to collect the
insurance. Ali and his son are now suing the insurance company for the money!
Issue: What is the status of a prior criminal conviction in a civil trial?
Holding: It does not have the status of res judicata, but it is admissible.
Reasoning:
 The trial judge (shockingly) did not consider the criminal conviction, and on the balance of probabilities
found that the Alis had not committed the arson, and thus granted judgement in their favour
 The admissibility of a prior criminal conviction in a civil trial and its effect remain controversial questions
o For some doctrinal writers, it would be ridiculous to ignore it completely; could lead to two totally
opposing judgements
o Some say it is inadmissible, because it would lead to the appearance of the civil court questioning
the criminal court if they considered and granted it little weight
 “No one should profit from their crime” is a general principle of law however
 Judge here concludes that he has to consider the criminal conviction, but he is not bound to consider it a
“chose jugée” – he can draw the conclusions as appropriate
 In this case, huge error by the trial judge to decide (even in the absence of the criminal conviction) on the
balance of probabilities that the Alis did not set fire to the building
o On the balance of probabilities, they did
o Add this to the fact that they have previously been found guilty beyond a reasonable doubt – no
recovery for them
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Ratio: In the civil law, a prior criminal conviction does not have the status of res judicata in a civil case – but it
is however admissible, and the civil judge can draw the conclusions therefrom as he sees fit.
Bachand on Ali:
 The court of appeal here really didn’t show enough deference to the trial judge’s findings of fact – they
completely reassess all the evidence. No regard for the better position of the trial judge to assess credibility
of the witnesses.
II. THE LITIGATION PRIVILEGE/WORK PRODUCT DOCTRINE
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Basic rule: A cannot be forced to disclose to B materials or information that came into existence for
the dominant purpose of preparing for anticipated or existing litigation
The rule is typical of CML jurisdictions (including QC) – no functional equivalent in CVL jurisdictions (this
makes sense in light of the rationale for the rule)
Rationale for the rule: protection of the adversarial process. Parties will not have the freedom to investigate
any line of inquiry if they think any adverse information they find will have to be turned over to the other
party. Need a zone of privacy/secrecy so that parties can investigate their cases to the fullest extent possible.
o The truth is likelier to come to light when the parties make their best efforts to find all the relevant
information and present their cases in the best light possible
Comparison with solicitor-client privilege:
o Solicitor-client privilege is narrower: only covers communications between legal advisor and client
o But is also broader: applies to all communications even if not made for the purpose of preparing for
litigation. Also applies forever, not just for a limited amount of time.
Contemporary evolution of the litigation privilege  its scope is tending to decrease. Shift from
“substantial purpose” test to “dominant purpose” test (higher threshold) for information to qualify for
litigation privilege (Blank mentions all this).
o This makes sense in light of the trend in civil justice as a whole – less emphasis on the adversarial
nature of the proceeding, more disclosure and cooperation between the parties, less party control
o US courts now have the discretionary power to set aside litigation privilege
Exceptions to the litigation privilege: the litigation privilege will not protect disclosure of evidence of a
party’s abuse of process or similar blameworthy conduct (Blank at para. 44).
o Upon prima facie showing of actionable misconduct by the other party, litigation privilege succumbs
and access to the information may be granted
Termination of Litigation Privilege: ends when the litigation ends. But it will survive if there is
sufficiently related litigation that is pending or anticipated. The possibility in the future that more litigation
will arise does not qualify as “anticipated” (Blank at para. 43).
This is the seminal case on litigation privilege in Canada:
Blank v. Canada (Department of Justice) (2006) – CML (SCC from OCA)
Facts: The Crown charged Blank (director of a company) in criminal court with regulatory offences (under the
Fisheries Act, for pollution and reporting failures). The charges were eventually quashed. Blank then sued the
federal government in damages for fraud, conspiracy, perjury, and abuse of its prosecutorial powers. Requested
some documents from the government – they claimed litigation privilege as their reason for not disclosing them.
Issue: Narrowly, do documents once subject to litigation privilege remain privileged when the litigation ends?
Broadly, what is the difference between solicitor-client privilege and litigation privilege? Holding: Documents
subject to litigation privilege are no longer privileged once the litigation (broadly defined) ends.
Reasoning (Fish J.):
Solicitor-Client Privilege
 Justice system depends on free communication between those who need legal advice and those best able to
provide it
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 Solicitor-client privilege is a necessary condition for the effective administration of justice
 Restricted to communications between client and lawyer, made at any time
Differences between Solicitor-Client Privilege and Litigation Privilege
 1. Solicitor-client privilege applies only to confidential communications between the client and his solicitor
o Litigation privilege applies to communications of a non-confidential nature between the solicitor and
third parties, and includes material of a non-communicative nature
 2. Solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not
litigation is involved
o Litigation privilege applies only in the context of litigation itself
 3. Rationale for solicitor-client privilege is the interest of all citizens in having full and ready access to legal
advice. Aim is to protect a relationship.
o Rationale for litigation privilege is related to the needs of the adversarial process  need a protected
area to facilitate investigation and preparation of a case for trial by the adversarial advocate. Aim is
to protect a process.
 Parties to litigation must be left to prepare their contending positions in private, without
adversarial interference and without fear of premature disclosure
o Both serve a common cause of securing effective administration of justice according to law
Litigation Privilege – when it ends
 Litigation privilege arises/operates even in the absence of a solicitor-client relationship – applies to all
litigants, represented or not
 Confidentiality is not an essential component of litigation privilege
 Once the litigation is over, the rationale for the privilege is gone and it gives way. Litigation is broadly
defined – means the claim that gave rise to the litigation privilege, as well as separate proceedings that
involve the same or related parties and arise from the same or related cause of action
Litigation Privilege – when it starts and what it applies to
 Litigation privilege applies to documents created for dominant purpose of pending or apprehended litigation
Ratio: Litigation privilege, a distinct concept from solicitor-client privilege, expires when the litigation broadly
defined is terminated.
J. EXAMPLES OF RULES PRIMARILY AIMED AT FURTHERING EXTRINSIC PUBLIC POLICIES
I. RULES LIMITING THE ADMISSIBILITY OF EVIDENCE BECAUSE OF THE NATURE OF THE INFORMATION TO
WHICH IT RELATES
Communications Involving Professionals
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Every jurisdiction has rules maintaining the confidentiality of communications between professionals and
their clients  these relationships and their function are deemed more important than the search for truth
The common law and the civil law differ strongly in this area
o CVL has more professional privileges than CML, and they are more stringent
See Principle 18 UNIDROIT, IBA Rules art. 9.2(b)
1. The Common Law
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Traditionally only solicitor-client privilege existed in CML  does not mean that only lawyers had a duty of
confidentiality to clients, but only their communications with their clients were protected by the law of
evidence (i.e. deemed inadmissible)
In many CML jurisdictions, privilege has been extended to other communications involving professionals
(most often health care  doctors, psychiatrists). Often are created by judges, sometimes created by statute.
General reluctance to extend the privilege in CML, even with respect to other professionals
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a. Lawyer-Client Communications
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
Solicitor-client privilege – when does it apply?
o 1. Only applies to communications made between the client and the legal advisor (nature of the
information)
 Pre-existing documents given by the client to the lawyer are not covered – but anything said
about them is privileged
 What about communications intended to be made to the lawyer, but they never reached
them? These are privileged.
 What about communications made by lawyer to an agent of the client? Not sure, case-bycase.
o 2. Communication must have been made in confidence – parties to communication must have an
expectation of confidence (condition)
 What if others a present? Fact-specific inquiry.
o 3. Communication must have been made for the dominant purpose of seeking legal advice
(whether in the context of litigation or not) (condition)
o 4. Client must not have waived the privilege (condition)
 The client is the holder of the right of privilege – only he can waive it
 Waiver can occur tacitly
 Traditionally, CML’s position was harsh: as soon as the privileged information fell into the
hands of a third party, waiver was assumed and privilege lost
 This has been tempered by the courts
Legal advice privilege is absolute in the CML: courts have no discretionary power to set aside privilege
on the grounds that in a given case, the search for truth ought to prevail
o There is a narrow exception in criminal cases (for reasons of public safety)
England interprets the solicitor-client privilege much more restrictively than Canada:
Three Rivers District Council v. Bank of England – CML (Court of Appeal, England)
Facts: Bank was subject of a governmental inquiry. It designated 3 employees (BIU) to prepare all the materials
for the inquiry; they did so in close connection with their lawyers. Now Bank is being sued in the same matter by
Three Rivers; are claiming solicitor-client privilege for all the documents prepared for the inquiry by non-BIU
Bank employees (some prepared for lawyers, but were never sent; some not prepared for lawyers but sent; some
prepared for lawyers and sent).
Issue: Are documents emanating from third parties to the solicitor-client relationship, not in the context of
preparation for litigation, but for the purposes of obtaining advice, privileged? Holding: No.
Reasoning (Longmore L.J.):
 Bank is not claiming litigation privilege for the documents – litigation privilege only applies in adversarial
proceedings (inquiry was not adversarial)
 The privilege has been extended from covering documents purely within the context of preparation for
litigation to non-litigious advice
o Makes sense: law is opaque; people often need advice from lawyers about their rights and
obligations outside the context of threatened or pending proceedings
o Cannot make it against people’s interests to consult lawyers (because then that information can be
used against them)  people must be able to tell their lawyers the whole story so that lawyers can
give adequate advice
 Justice is better served by candour than suppression; public interest that the courts should come to correct
judgements on the basis of all relevant material
o Legal advice privilege must prevail over this consideration to a certain extent
 Three Rivers claims: privilege only covers communications between solicitor and client
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
Bank claims: privilege covers any document prepared for the dominant purpose of obtaining the solicitor’s
advice upon it
 The test is: whether the communication or other document was made confidentially for the purposes
of legal advice
 Legal advice privilege does not extend to documents obtained from third parties to be shown to a
solicitor for advice (even if it is the dominant purpose of the document’s preparation)  these do not
qualify as communications between client and solicitor
o The litigation privilege does, however, apply to these documents – the test for litigation privilege
being the “dominant purpose” test
 Are employees of a corporation who is the lawyer’s client in a different position than third parties, since they
are the agents of the client? No. Are still third parties. Only the BIU can be considered the lawyers’ clients.
Ratio: In England, the solicitor-client privilege receives a restricted interpretation.
Bachand on Three Rivers:
 The holding in this case is that employees of a corporation are not clients for the purposes of solicitor-client
privilege (has been criticized a lot)
 Canada takes a broader view than England: all communications with employees of whatever level are
privileged if the employees were acting within their responsibilities as employees and seeking confidential
legal advice for the corporation
 The English Court of Appeal also found that the documents were not communicated for the dominant
purpose of obtaining legal advice  this is a narrow interpretation of the “dominant purpose” test
 Three Rivers illustrates the CML’s traditional reluctance to recognize privileges through its strict
interpretations of the solicitor-client privilege
 Also note that this English court treats litigation privilege as closer to the solicitor-client privilege than a
Canadian court would  they are seen as totally distinct here
b. Doctor-Patient Communications
A.(M.) v. Ryan – CML (SCC from BCCA)
Facts: When she was 17, AM underwent psychiatric treatment from Dr. Ryan – he sexually assaulted her. She
later sought counselling for this harm – she was very concerned at the time that the counselling be confidential.
She is now suing Ryan for damages. His lawyers want to see the notes and reports of her therapist about their
meetings. Court of Appeal ordered disclosure, with limits: only the lawyers and the expert witnesses could see
the reports, no copies could be made.
Issue: Should the psychiatrist’s notes and records made in the course of AM’s treatment be disclosed? Holding:
Yes, with limitations (with dissent).
Reasoning:
Majority (McLachlin J.):
 Fundamental proposition: everyone owes a general duty to give evidence relevant to the matter before the
court, so that the truth may be ascertained.
 The law permits certain exceptions to this fundamental duty – are called privileges
o Permits privileges where they are required to serve a public good greater than search for truth
 Wigmore test for establishing whether a privilege exists in a certain situation:
o 1. Communication must originate in a confidence
o 2. Confidence must be essential to the relationship in which the communication arises
o 3. Relationship must be one which should be “sedulously fostered” in the public good
o 4. If all these requirements are met, court must consider whether the interests served by protecting
the communications from disclosure outweigh the interest in getting at the truth and disposing
correctly of the litigation (i.e. interest in confidentiality trumps interest in truth for this particular
case)
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
Here, it is obvious that the psychiatrist-client relationship passes the first three steps – confidentiality is
essential to continued existence and effectiveness of therapeutic relations, and society wants to foster good
mental health among all people, especially victims of abuse
 In the balancing act required by the fourth step, the conclusion does not have to be all-or-nothing –
court can make an order for partial privilege: i.e. disclosure only to the degree necessary to serve the
ends of the ascertainment of truth in the trial
o Privacy of plaintiff v. defendant’s right to make a full defence can be balanced by recognizing partial
privilege and making an order for partial disclosure
 Argument by counsel for Ryan that McLachlin J. wishes to shut down: claim that by commencing
proceedings v. Dr. Ryan, AM has forfeited her right to confidentiality
o Not the case. Claimant is just trying to get the damages that law allows her – does not give her
opponent licence to delve into private aspects of her life which need not be probed for the proper
disposition of the litigation
Dissent (L’Heureux-Dubé J.):
 There are class privileges (burden of proof on person seeking disclosure) and case-by-case privileges
(burden of proof on person seeking no disclosure)
o Notes from therapy are a case-by-case privilege
 Critique of McLachlin’s approach: doctrine of partial privilege is still ad hoc – it still fails to fulfil the
policy objectives of encouraging victims of sexual assault to seek therapy as well as redress in the form
of a civil action (because they are not assured confidentiality across the board – will have to prove it)
 She finds that the court should go through the documents requested much more carefully to screen them for
relevance, before they release them.
 This makes sure that the common law of privilege adequately balances the Charter values of privacy,
equality (to victims of sexual assault – primarily women, and the crime is much more private in nature) and
the right to a fair trial
Ratio: Psychiatric notes can be the subject of privilege, but not always.
Bachand on Ryan:
 The second psychiatrist’s notes would help the defence on the issues of causation, injury and extent of
prejudice, and quantum
 The information in the record is therefore very relevant and could be material to the disposition of the issues
in the dispute
 Ryan establishes that the courts have discretionary power to extend the scope of privilege (even though
they do not use it in this case)
 What’s the problem with the case-by-case method? Privilege needs to be a hard rule for it to be effective – if
there is even a chance that the information can be release, the uncertainty in confidentiality will create a
chilling effect on the activity
2. The Civil Law

CVL takes a totally opposite approach to CML: the general rule is that all communications between
professionals and their clients are privileged (not just legal or health professionals – all professionals)
art. 9 QC
Charter
Every person has a right to non-disclosure of confidential information.
No person bound to professional secrecy by law and no priest or other minister of religion may, even in
judicial proceedings, disclose confidential information revealed to him by reason of his position or
profession, unless he is authorized to do so by the person who confided such information to him or by an
express provision of law.
The tribunal must, ex officio, ensure that professional secrecy is respected.
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art. 2858
CCQ
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The court shall, even of its own motion, reject any evidence obtained under such circumstances that
fundamental rights and freedoms are breached and that its use would tend to bring the administration of
justice into disrepute.
The latter criterion is not taken into account in the case of violation of the right of professional privilege.
Professional secrecy: substantive obligation of the professional not to misuse the information in any context
(duty of silence in general)
Solicitor-client privilege: evidentiary exclusionary rule resulting from professional secrecy – professional is
immune from disclosure in a judicial proceeding
The limit to professional privilege is that the information must have been revealed to the professional by
reason of their professional position
o But then the confidentiality of this information trumps the search for truth
Unlike in the CML, inadvertent disclosure does not cause privilege to fall (Smith v. Belanger)
It’s not certain whether or not privilege is absolute in CVL – does the judge have the power to set aside
privilege where the search for truth ought to prevail? It is suggested in Glegg that yes, although that answer
is not certain.
o It makes sense from a policy perspective that the judge have this discretion; the privilege is so broad
in QC, the court needs a mechanism to mitigate its rigours when the search for truth demands it
a. Lawyer-Client Communications
Implied waiver of solicitor-client privilege:
Récupération Portneuf Inc. v. Saint-Alban (Paroisse) – CVL (QCA)
Facts: Company is suing the municipality, alleging they acted in bad faith in a matter. Municipality is claiming
they acted in good faith, on a direction from their legal counsel – but refuse to disclose that direction.
Issue: Can the privilege be lifted here so that the document must be produced? Holding: Yes.
Reasoning:
 The city is the one bringing up the legal advice of their counsel as an excuse – they are the ones putting it
forward as a defence
 They have explicitly made it an object of the litigation, and an issue to be determined – without seeing
the direction, the judge cannot make a decision regarding the good or bad faith of the city
 The city has implicitly waived the privilege (waiver has to be clear and precise)
 In this case, drawing negative inferences from city’s failure to produce evidence is not an adequate solution
 The city is the one putting their good faith on the basis of the legal advice in issue; if they choose to do
so, they have to submit the evidence to the contradictory principle and give it to the other party so
they can examine it
Ratio: One can implicitly waive their solicitor-client privilege by putting legal advice in issue in litigation.
Foster Wheeler Power Co. v. SIGED (Société municipale…) – CVL (SCC from QCA)
Facts: Foster & SIGED entered into Ks for Foster to build a recycling/garbage centre for SIGED. Completion of
the project was uncertain (politics); it ran into opposition, the project was cancelled, and the Ks with Foster were
resiliated. Foster sued SIGED for deliberately squashing the project (acting in bad faith). Became material to
know what SIGED’s lawyers had told the two mayors that had become heads of SIGED about the project in a
particular meeting (at which a third party was present). Mayors refused to answer the questions on discovery,
citing solicitor-client privilege.
Issue: Can the solicitor-client privilege be lifted here?
Holding: Yes, if the questions are limited in form & substance.
Reasoning (LeBel J.):
 Professional secrecy refers to the institution in its entirety: includes an obligation of confidentiality,
which imposes duty of discretion on lawyers, and creates a correletive right to their silence on the part
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of clients (1st component)
o With respect to third parties, professional secrecy includes an immunity from disclosure even
in judicial proceedings (2nd component)
 Professional secrecy is incredibly socially important (is a civil right, principle of fundamental justice) 
unless clients can trust their lawyers, will not be able to be totally honest with them, and lawyers won’t be
able to represent their clients effectively
o Is important to maintain professional secrecy of lawyers to uphold justice system and rule of law
 Lawyers’ duties are evolving/expanding  not everything they do will be subject to professional secrecy
 Need to look at a lawyer’s mandate to find out the scope of their obligation of confidentiality
 In the case of an individual professional act, person claiming professional secrecy bears the burden of
proving it applies  because it would be simple to prove
 In cases of complicated/prolonged mandates (which must be proven), a rebuttable presumption of fact arises
in favour of the person claiming secrecy that it applies to all communications between lawyer and client
o Opposing party would then have to show that the information sought is not subject to obligation of
confidentiality/immunity from disclosure, or that this is a case where the law authorises disclosure
notwithstanding professional secrecy
 Associated issue: litigation privilege  is being incorporated into civil law concept of professional secrecy
Ratio: Professional secrecy is a fundamental right of the client in Quebec, not merely a procedural rule of
evidence. Applies broadly to all communications between solicitor and client, but not all.
Bachand on Foster Wheeler:
 N.B. that the burden lies on the person trying to get the evidence to show that the privilege does not apply –
this is generally opposite from the CML (although not in cases of solicitor-client privilege)
 The presence of the third party in the room doesn’t constitute a waiver of privilege in this case (this is part of
CVL’s more robust approach to privilege)
b. Doctor-Patient Communications
Glegg v. Smith & Nephew Inc. (2005) – CVL (SCC from QCA)
Facts: G got into an accident, had to have surgery and a metal prosthesis implanted in her leg. She suffered pain
caused by the prosthesis serious enough to inhibit her from working; also developed depression. She consulted a
psychiatrist for it. The prosthesis was eventually removed, and she sued her doctors and the manufacturers of the
prosthesis, claiming pecuniary damages as well as damages for loss of enjoyment, pain and suffering, etc. The
defendants want access to her psychiatrist’s notes – she is claiming doctor-patient confidentiality.
Issue: Should the psychiatrist’s notes have to be disclosed? Holding: Yes.
Reasoning (LeBel J.):
 QC law has long recognized the fundamental importance of the physician’s duty of professional secrecy in
therapy relationships
o Includes both an obligation of confidentiality and immunity from disclosure
 But professional secrecy is not absolute – disclosure may sometimes be required to protect competing
interests; the holder of the right may also implicitly/explicitly waive it
 Waiver: must be voluntary and clear if explicit. If implicit, must be inferred from actions that are
inconsistent with an intent to maintain professional secrecy
o Once such action is to institute legal proceedings where the litigant raises his/her medical
record or state of health as a factor relevant to the case  this constitutes a tacit waiver of
confidentiality of that medical record
 In this case, G obviously raised her state of health by claiming damages for it – she implicitly waived her
right to doctor-patient confidentiality
 An express/implied waiver does not authorize unlimited access to a patient’s medical record – the limit
to the waiver is RELEVANCE
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o Access to relevant evidence is necessary to the defendant’s ability to make full answer and defence
In the context of discovery, relevance is interpreted more broadly than at trial  person seeking disclosure
just needs to show that the document will be useful for the conduct of the action (i.e. will be likely to
contribute to advancing the debate)
 How will disclosure of protected information be permitted?
o Judge can get affidavit from person objecting to disclosure as to contents of documents
o Judge can then review the evidence in private and set the conditions for access to/dissemination of
information (if necessary)
Ratio: In QC, professional secrecy is assumed. However, disclosure may be ordered when the right to
professional secrecy is waived by a litigant who puts that confidential information in issue in a legal dispute.

Bachand on Glegg: cf. Ryan
 N.B. The court does not go through the Wigmore test to see if the information is privileged here – in CVL,
assume that the information is privileged. In Ryan, the court first had to decide the information was
privileged, and then decide if it should be disclosed anyway
 Can Ryan and Glegg be reconciled on the point of implicit waiver?
o In Glegg, it seems to be a no-brainer  of course the plaintiff waived her right to doctor-patient
confidentiality, she put her state of health explicitly in issue
o How is it not the exact same situation in Ryan? No address in Glegg as to why Ryan was not treated
the same way
II. RULES LIMITING THE ADMISSIBILITY OF EVIDENCE BECAUSE OF THE MANNER BY WHICH IT WAS OBTAINED
Common Law:



The traditional common law position is that the manner of obtaining evidence has no bearing on
admissibility
Doesn’t even matter if the evidence is stolen – evidence law is not a means of disciplining litigants
Exception: the court will issue injunctions restricting the use of improperly obtained evidence that is
privileged
Civil Law:
art. 2858
CCQ
The court shall, even of its own motion, reject any evidence obtained under such circumstances that
fundamental rights and freedoms are breached and that its use would tend to bring the
administration of justice into disrepute.
The latter criterion is not taken into account in the case of violation of the right of professional privilege.
Houle v. Mascouche (Ville de) (1999) – CVL (QCA)
Facts: H was Director of the Citizens’ Office in Mascouche. She had access to confidential information
concerning a municipal development project. Her neighbour heard things were “shaking” at City Council, so he
decided to intercept and record all the phone conversations she made at home, outside work hours. He came by
some interesting material, brought it to the mayor, who told him to continue. On the basis of these recordings, H
was fired (for conveying confidential information about the project to real estate developers). She appealed her
decision to the Commission de Travail (administrative body). They ruled the evidence was admissible – she
applied for judicial review. Trial J. ruled the tapes inadmissible. This is city’s appeal.
Issue: Are the tapes admissible or inadmissible? Holding: Inadmissible.
Reasoning:
Concurrence (Robert J.A.):
 art. 2858 CCQ: any evidence obtained by the breach of fundamental rights will not be admissible if it brings
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administration of justice into disrepute.
 Two conditions: 1. Evidence must be obtained in a breach of a fundamental right 2. Its use in court
must tend to bring the administration of justice into disrepute
o Privacy is a fundamental right (protected by QC Charter, CCQ)
 H’s right to privacy was clearly and badly breached in these circumstances; it’s especially bad that she was
in her own home, talking on the phone outside work hours, with clear expectation of privacy
 N.B. Cannot allow the city to justify its actions based on what it thereby found – have to assess the breach/its
tendency to bring justice into disrepute apart from content of evidence or its probative value
 Robert J.A. will import principles developed within criminal law (s. 24(2) Canadian Charter) into his
analysis of the admissibility of this evidence in a civil trial under art. 2858
 In this case, there is no other way the evidence could have been discovered; the breach was particularly bad;
and a reasonable and objective person would conclude that the administration of justice would be more
brought into disrepute by admitting evidence of this nature than by excluding it
Majority (Gendreau J.A. + 1):
 For a very long time, evidence was admissible in a civil trial regardless of how it was obtained art.
2858 changed this situation
 Majority will not apply the principles derived within a criminal law context to the civil context with which
they are faced  there are too many differences between civil and criminal context
o The foremost being that there is no reason to favour the defendant in a civil context: they are not
protected from self-incrimination at all in civil court
o What is inadmissible in a criminal trial may very well be admissible in a civil trial
 Article 2858 introduces an exclusionary rule of evidence in order to protect the higher value of the
integrity of the system of civil justice
o Its purpose is not to compensate a victim whose fundamental rights have been infringed
o The provision imposes the obligation on the court to exclude relevant evidence if it has been
obtained under circumstances which violate fundamental freedoms, but only to the extent that its
admissibility would tend to bring the administration of justice into disrepute
o Evidence may be admissible if it was obtained in violation of fundamental rights
o The criterion that must be satisfied is that of bringing justice into disrepute
 Confidence of the public in the civil justice system depends upon maintaining a balance between the
protection of fundamental rights on one hand and the seeking of truth on the other hand
 First factor to review = seriousness of the breach  the more serious it is, the more chance that the
general rule of relevance will be overridden (here, was very serious)
 Second factor to review = the lawful interest or motivation of the author of the breach for violating the
other party’s rights (i.e. their good or bad faith)
o Method used to carry out the breach might be relevant here (if it is itself a crime, will obviously be
deemed more serious infraction of the right)
 Not all breaches, even if serious, necessarily entail the exclusion of evidence
 The big question to ask: “Taking into account the nature, purpose, motivation and lawful interest of the
author of the breach and, considering the methods of gathering such evidence, was the breach of
fundamental rights so serious that it would be unacceptable for a court of law to authorize the party having
obtained the evidence to use it in order to advance its private interests?”
o If the judge thinks the evidence obtained in breach of fundamental rights constitutes an abuse of the
legal system because it lacks a sufficient legal justification, he should disallow the evidence
 In this case, the neighbour had no lawful interest and the mayor’s motives or methods were not better
 Evidence is inadmissible
Ratio: Evidence obtained in the breach of fundamental rights, if its use by the court would tend to bring the
administration of justice into disrepute, is inadmissible.
Bachand on Houle:
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

The court says the tapes are inadmissible  they completely sacrifice the search for truth
Neither outcome is satisfactory, obviously:
o Court can admit evidence obtained in gross violation of human rights
o Or court can reinstate a crook in municipal office (this is the option they choose)
Bachand on art. 2858:
 Although the civil law of Quebec used to take a position closer to that taken by the CML, the enactment of
art. 2858 brought QC law closer to the traditional civilian position  improperly obtained evidence is more
readily considered inadmissible
 There is a two-step analysis:
o 1. Was the evidence obtained in a manner that breached a fundamental right?
o 2. If so, would the use of the evidence bring the administration of justice into disrepute?
 1. What counts as a fundamental right?
Bellefeuille v. Morisset (2007) – CVL (QCA) [class case]
Facts: B worked for M – quit. Was trying to a get a new job, but never had any success. Began to suspect she
was the victim of a smear campaign by M, conducted through reference calls. So B gets one of her friends to call
M, posing as a future employer of B, and records the conversation: M is taped saying all sorts of horrible stuff
about B. B sues M for defamation, and seeks to bring the tape as evidence.
Issue: Is the tape admissible? Holding: Yes.
Reasoning:
 The tape was not really obtained in breach of fundamental rights.
 The right to privacy? Not really applicable here – one does not expect employee reference calls to be held to
a strict standard of confidentiality making it a fundamental right
 The right to good faith (obligation in the other party)? The right to have the other party act in good faith is
not a fundamental right, says QCA.
 Fundamental right should be read restrictively – doesn’t need to be listed in a Charter, but the right has to
have the protection of human dignity as its purpose.
Ratio: “Fundamental right” in art. 2858 should be interpreted restrictively – the right doesn’t need to be listed in
a Charter, but it does need to have the protection of human dignity as its purpose.



2. What does “bring the administration of justice into disrepute” mean?
o The focus must be on the civil justice system (cf. majority and dissent in Houle)
o In Houle, the QCA says that the purpose of art. 2858 is not to sanction breaches of fundamental
rights (there are other legal mechanisms that can do that)
o Bachand says that the QCA reads 2858 as mandating exclusion when the evidence was obtained in a
manner breaching a fundamental right, and the breach was particularly serious
o Bachand says this is not convincing  the focus is not on the breach, but on the civil justice system
and its integrity
Art. 2858 applies regardless of whether the victim of the breach or the perpetrator of the breach are parties to
the action or not
Bachand says that another way to read art. 2858 is as mandating procedural loyalty – meaning the second
part of the test is always and only met when the party seeking to rely on the evidence participated in the
violation of rights (irrespective of whether the victim is the opposing party or not)
o Could have a safety valve of judge’s discretion to allow the evidence if necessary
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