Civil Evidence – Fall 2007; Prof. F. Bachand
Introduction................................................................................................................................................................................................ 5
A. The Law of Evidence: Generalities ................................................................................................................................................................... 5
i) Definition and Scope ............................................................................................................................................................................................................... 5
a. The law of evidence is mostly concerned with the factual information on the basis of which adjudicative decisions are made, i.e. with the fact-finding
phase of adjudicative means of dispute resolution ................................................................................................................................................................. 5
b. Civil matters ....................................................................................................................................................................................................................... 6
ii) Nature of rules of evidence (overview) .................................................................................................................................................................................. 6
Draft Rules on Transnational Civil Procedure with comments: Introduction .................................................................................................................... 6
iv) Objectives of the Law of Evidence ........................................................................................................................................................................................ 7
a. Discovery of the true facts of the case ................................................................................................................................................................................ 7
“Truth in Adjudication”, Mirjan Damaska ................................................................................................................................................................... 7
“A Comparative View of Standards of Proof” by Kevin Clermont and Emily Sherwin ......................................................................................................... 9
II. Explanation of Historical Divergence ........................................................................................................................................................................... 9
A. Inattention to the Problem............................................................................................................................................................................................. 9
B. Insignificance of the Problem ....................................................................................................................................................................................... 9
C. Avoidance of the Problem............................................................................................................................................................................................. 9
Michele Taruffo, Rethinking the standard of proof [optional reading, WebCT] ........................................................................................................ 10
Auberge des Pins Inc. ................................................................................................................................................................................................. 12
b. Furtherance of public policy goals deemed more important than the search for truth ..................................................................................................... 13
c. Ensuring the efficiency of the adjudicative means ........................................................................................................................................................... 13
B. Overview of relevant sources ........................................................................................................................................................................... 13
i) Fact finding before courts ...................................................................................................................................................................................................... 13
ii) Fact-finding before quasi-judicial tribunals .......................................................................................................................................................................... 14
iii) Fact-finding before consensual arbitral tribunals ................................................................................................................................................................ 14
C. Structure of the Course: Three Fundamental Questions .............................................................................................................................. 15
1.
What kind of information is the adjudicative process concerned with? .......................................................................................................................... 15
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What kind of information are adjudicators allowed to base their decisions on? ............................................................................................................ 15
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What are they allowed to consider when they are drawing conclusions of fact? ............................................................................................................ 15

What are they allowed to consider when they draw conclusions of law? ........................................................................................................................ 15
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?......................................................................................................................................................................................................... 15
3.
How may such information be used by adjudicators? ..................................................................................................................................................... 15
1. What Kind of Information is the Adjudicative Process Concerned With? ........................................................................................ 15
A. Evidence Relating to Adjudicative Facts ........................................................................................................................................................ 15
i) Evidence Relating to Facts Directly in Issue (Material Facts) ............................................................................................................................................... 15
ii) Evidence Relating to Circumstantial Facts (Evidentiary Facts) ........................................................................................................................................... 16
a. The Fundamental Requirement: Relevance ...................................................................................................................................................................... 16
Cloutier v. The Queen, [1979] 2. S.C.R. 709 ....................................................................................................................................................................... 18
Anderson (Guardian ad litem) v. Erickson (BCCA, 1992) .................................................................................................................................................. 19
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b. The regulation of inferences that may be drawn from circumstantial facts: presumptions .............................................................................................. 20
Crispino c. General Accident Insurance Company (QCCA, 2007)...................................................................................................................................... 20
1) Permissible Inferences – Presumptions of Fact: .......................................................................................................................................................... 21
Fontaine v. B.C. .......................................................................................................................................................................................................... 21
2) Mandatory Inferences – Presumptions of Law: ........................................................................................................................................................... 22
Banque Nationale du Canada v. Soracchi, (QCCA, 2000) .................................................................................................................................................. 23
iii) Hard Evidence (as Opposed to Opinion) ............................................................................................................................................................................. 24
a. The problematic and increasingly irrelevant distinction between fact and opinion .......................................................................................................... 24
Strong, J.W. (ed.) McCormick on Evidence [C.B. page 513] ..................................................................................................................................... 25
R.v. Graat [1982] SCC, [page 221 C.B.] .................................................................................................................................................................... 26
b. Expert Opinions and the Difficulties Regarding Its Use .................................................................................................................................................. 27
When and how to use of expert-opinion ..................................................................................................................................................................... 27
Latimer owed explanation, judge suggests [p. 529 C.B.] ........................................................................................................................................... 29
When is Expert Opinion Admissible? ............................................................................................................................................................................. 29
R. v. Mohan [1994] 2 S.C.R. 9 [C.B. p.285] .............................................................................................................................................................. 29
HOW IS EXPERT EVIDENCE PRESENTED? .......................................................................................................................................................................... 33
George C. Harris, “Testimony for Sale” (2000) ......................................................................................................................................................... 34
Strong, McCormick on Evidence, “Proposals for Improvement of the Practice Relating to Expert Testimony”, p. 533 ........................................... 35
Anderson, “Proposals for Improvement of the Practice Relating to Expert Testimony”, p. 387 ................................................................................ 35
iv) Facts that Need Not Be Proven ............................................................................................................................................................................................ 37
a. Formally Admitted Facts .................................................................................................................................................................................................. 37
b. General Facts that Cannot Reasonably be Disputed ......................................................................................................................................................... 38
R.v.S. (R.D.) (SCC, 1997), p. 239 .............................................................................................................................................................................. 40
B. Information Relating to Normative Facts (Information Relating to the Context of Legal Rules) ............................................................ 42
i) Legislative Facts: ................................................................................................................................................................................................................... 42
a. Legislative Facts as Distinguished from Adjudicative Facts ............................................................................................................................................ 42
b) Difficulties Regarding the Treatment of Legislative Facts in Adjudication..................................................................................................................... 43
Willick v. Willick [1994] 3 SCR 670 [P. 369] ............................................................................................................................................................ 44
Woolhander; Rethinking the Judicial Reception of Legislative Facts [p. 537 C.B] ................................................................................................... 45
Baar; Criminal Court Delay and the Charter: The Use and Misuse of Social Facts in Judicial Policy Making [p.499] ............................................. 46
R v. Spence, [2005] 3 S.C.R. 458 ......................................................................................................................................................................................... 48
ii) Formal legal Sources ............................................................................................................................................................................................................ 49
a. Domestic Sources ............................................................................................................................................................................................................. 49
R. v. Evgenia Chandris, [1977] 2 SCR 97 [p. 271] ..................................................................................................................................................... 52
The Judge’s Task as Law-Finder: Judicial Notice of the Law ............................................................................................................................................. 53
b. Foreign Legal Sources ...................................................................................................................................................................................................... 54
Ordon Estate v. Grail, [1998] 3 R.C.S. 437 [p. 251 C.B.] .......................................................................................................................................... 57
The entire purpose of this case seems to be the fact that Canadian courts will draw on international law when deciding what to do about Canadian
law  make it fit with the international legal community.......................................................................................................................................... 57
F. Bachand, “The proof of foreign normative facts which influence domestic rules” ................................................................................................ 58
II. What are the role and responsibilities of the adjudicator and the parties in the fact-finding process? .......................................... 60
A) The Adjudicator’s Role vis-à-vie the Parties ................................................................................................................................................. 61
i) The Common Law Tradition: Adversarial Model ................................................................................................................................................................. 61
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a. Historical perspective ....................................................................................................................................................................................................... 61
b. Contemporary views......................................................................................................................................................................................................... 62
Brouillard v. The Queen [SCC, 1985] [p. 55] ............................................................................................................................................................. 63
c. Quasi-judicial and inferior tribunals ................................................................................................................................................................................. 64
ii) The Civil Law Tradition: “Quasi-Inquisitorial” Model ........................................................................................................................................................ 64
a. Historical perspective ....................................................................................................................................................................................................... 64
b. Contemporary views......................................................................................................................................................................................................... 64
Kotz, H., “Civil Justice Systems in Europe and the United States” ..................................................................................................................................... 66
iii) Quebec: More Passive than the Civil Law; More Active than the Common Law ............................................................................................................... 67
Technologie Labtronix inc. c. Technologie Micro Contrôle inc. et D. Lamothe, p. 303 ............................................................................................ 69
iv) Before Inferior Tribunals ..................................................................................................................................................................................................... 70
Rivest c. Bombardier .................................................................................................................................................................................................. 71
v) Before Arbitral Tribunals ...................................................................................................................................................................................................... 72
B) The Parties’ Role Vis-à-Vie Each Other: The Burden of Proof ................................................................................................................... 73
Civil law ............................................................................................................................................................................................................................... 74
Caisse Populaire de Maniwaki v. Giroux (SCC, 1993), p. 61..................................................................................................................................... 74
CML application .................................................................................................................................................................................................................. 75
Hollis v. Dow Corning Corp., 1995, SCC (p. 145) ..................................................................................................................................................... 76
III. How May Evidence be Used to Prove Facts ..................................................................................................................................... 77
A. Examples of Rules Primarily Aimed at Elucidating Truth ........................................................................................................................... 78
i) A preliminary—yet fundamental—question: are these rules really necessary? ..................................................................................................................... 78
Cross and Taper on Evidence: Proceedings in Non-Judicial Tribunals of a Quasi-Judicial, Administrative and Legislative Nature (p. 219) ........... 79
Dufraimont, Evidence Law and the Jury: A Reassessment (p. 459) ........................................................................................................................... 80
ii) Rules Which Concern the Use of Documentary Evidence ................................................................................................................................................... 80
a. The Civil Law Tradition’s preference towards documentary evidence to prove juridical acts ......................................................................................... 81
1. The general requirement that juridical acts be proved with documentary evidence .................................................................................................... 82
Guerin v. The State Life Insurance Co. (QSC, 1911), p. 141 ..................................................................................................................................... 83
2. The prohibition of testimonial evidence aimed at contradicting or varying the terms of documents setting forth juridical acts ................................ 85
Valuex Inc v. Richmond Transport Inc (QCCA, 1980), p. 367 .................................................................................................................................. 87
Lloyd’s of London v. Pécherie Nicole Desois ............................................................................................................................................................ 87
3. Types of Documents that Can Be Used to Prove Juridical Acts .................................................................................................................................. 88
Salomon c. Pierre-Louis, p. 297.................................................................................................................................................................................. 91
Bertrand Durand inc. v. Aribec, p. 53 ......................................................................................................................................................................... 91
Dans l’affaire de la faillite de : C.D.I. Industries Inc. (9037-1006 Québec Inc.) (QCSC, 2003) ........................................................................................ 93
b. The Common Law’s Traditional Approach to the use of Documentary evidence to Prove “Juridical Acts” ................................................................... 94
1. The best evidence/ “original document’ rule (also applies in CVL) ............................................................................................................................ 94
T. B.-V. v. L.B., (Court of Québec, 2004), p. 301 ................................................................................................................................................................. 98
2. Parole evidence rule..................................................................................................................................................................................................... 99
Cross and Taper on Evidence, p. 519........................................................................................................................................................................ 100
Canadian Newspaper Co. v. Kansa General Insurance Co., [1996] 30 O.R. (3d) 257 (C.A.) ............................................................................................ 100
c. Overview of issues relating specifically to electronic evidence ..................................................................................................................................... 101
iii) Rules which concern the use of testimonial evidence ....................................................................................................................................................... 102
1. Definition of Hearsay ................................................................................................................................................................................................ 103
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Morrow v. Royal Victoria Hospital (SCC 1974), p. 287 .................................................................................................................................................... 103
2. Overview of Traditional Exceptions to the General Exclusionary Rule .................................................................................................................... 106
3. Contemporary evolution and future of the hearsay exclusionary rule ....................................................................................................................... 108
R. v. Starr (SCC, 2000), p. 255 ................................................................................................................................................................................. 110
R. v. Khelawon, [2006] 2 S.C.R. 787 ................................................................................................................................................................................. 111
Promutuel Drummond v. Les Gestions Centre du Québec Inc. [2002] R.R.A. 695 (Qué. C.A.) ....................................................................................... 114
b. Testimonial Evidence in the Civil Law Tradition .......................................................................................................................................................... 117
iv) Rules which concern the use of real (material evidence) ................................................................................................................................................... 118
v) Authentication requirements ............................................................................................................................................................................................... 119
B. Examples of rules primarily aimed at ensuring the efficiency of the adjudicative process ..................................................................... 121
i. The Doctrine of Res Judicata ............................................................................................................................................................................................... 121
Danyluk v. Ainsworth Technologies Inc. 2001, SCC on appeal from Ontario, p. 111 ............................................................................................. 122
City of Toronto v. C.U.P.E. (SCC, 2003), p. 329 ..................................................................................................................................................... 125
Rocois Construction Inc. v. Québec Ready Mix Inc (SCC, 1990) (not in Casebook) ................................................................................................... 128
Ungava Mineral Exploration Inc. v. Mullan (QCCA, 2008), p. 367 ............................................................................................................................ 128
Ali c. Compagnie d’assurance Guardian du Canada, p. 21 ....................................................................................................................................... 132
ii. The Litigation Privilege/work product Doctrine ................................................................................................................................................................. 134
Blank v. Canada (Minister of Justice) SCC, 2006 (not in Casebook) ....................................................................................................................... 136
C. Examples of rules primarily aimed at safeguarding extrinsic public policies ........................................................................................... 137
i) Rules that limit admissibility of evidence because of the nature of the information to which the evidence relates ............................................................ 137
a. Communications involving professionals ....................................................................................................................................................................... 138
Imwinkelried, E.J., “The New Wigmore”: An Essay on Rethinking the Foundation of Evidentiary Privilege” (p. 483) ......................................... 140
1. Lawyer-client communications ................................................................................................................................................................................. 141
Three Rivers District Council v. Bank of England ................................................................................................................................................... 142
Foster v. Société intermunicipale de gestion et d’élimination des déchets (SCC from Quebec) .............................................................................. 145
2. Doctor-patient communications................................................................................................................................................................................. 148
A. (M) v. Ryan (SCC from B.C., 1997) (CML), p. 9 ................................................................................................................................................ 148
Glegg v. Smith & Nephew Inc. (SCC, 2005) from Quebec (CVL), p. 135 ......................................................................................................................... 150
ii) Rules limiting the admissibility of evidence because of the manner in which it was obtained .......................................................................................... 151
Houle v. Ville de Maschouche .................................................................................................................................................................................. 151
Morissette, Y.-M., “L’influence du droit français sur le droit de la preuve au Québec” .................................................................................................... 154
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Introduction
A. THE LAW OF EVIDENCE: GENERALITIES
i) Definition and Scope
a. The law of evidence is mostly concerned with the factual information on the basis of which adjudicative decisions are made,
i.e. with the fact-finding phase of adjudicative means of dispute resolution
1) Adjudicative means of dispute resolution
In every legal system, there are 2 basic ways through which legal disputes can be resolved (i) negotiation and (ii) adjudication.
i. Negotiation [most common]

Leads to what civil lawyers will call a transaction and what common lawyers would call a settlement.

It’s either direct or assisted (with the help of a 3rd party, called the mediator or conciliator). Most claims in Quebec are settled through direct negotiation.
ii. Adjudication [when negotiation fails]
 Adjudication= dispute resolution means that leads to a final and binding decision rendered by a third party.
 It essentially consists in litigation in the public judicial system, which consists in courts but also quasi-judicial tribunals. They are growingly present in
administrative disputes opposing the state and a citizen (e.g. tax issues) as well as disputes to which the state is not a party (e.g. régie du logement,
commission des relations du travail).
 Quasi-judicial tribunals are similar to courts but differ in 2 main ways (1) They are not really part of the judicial branch, and we often think of them as part
of the executive branch. (2) They have a focused/very specialized jurisdiction.
 That said, private adjudication is also possible.
 For instance, in consensual arbitration you contract out of the public traditional system and undertake to be judged in a private setting by an arbitrator.
 Parties increasingly resort to private arbitration for three reasons: 1) Dissatisfaction towards the judicial system seen as too long and costly; 2) The
intrinsic features of arbitration such as flexibility; 3) It is private and confidential (huge advantage in a commercial setting)
2) Fact-finding, a necessary aspect of adjudication
Every means of dispute resolution has a fact-finding phase: the main concern is ascertaining facts as opposed to ascertaining law. Why is that so? It is now
universally accepted (in common law and civil law) that all adjudicative processes contain a fact-finding phase. This is because:
1. Legitimacy of adjudication: For adjudication to be legitimate, it is essential that the result of the dispute does not solely depend on the arbitrator’s
subjective opinion on who should win. Facts are an objective input.
2. Facts are a key component of rules: Substantive legal rules are structured in such a way that they dictate certain circumstances will follow from certain
facts.
3. Arbitrators don’t know the facts of the case: To make adjudication legitimate, we require of adjudicators that they be independent and impartial, and that
implies they don’t know the facts of the case and must be informed of them.
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b. Civil matters
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Civil matters are mostly disputes involving private law rather than public law. In common law, it will be understood to include commercial matters (not in
classic civil law).
Excludes issues that are specific to penal/criminal proceedings. There are big differences btw penal\criminal rules of evidence and the civil one:
Idea of fairness to the accused in criminal and penal prosecutions
Idea that the parties are on an equal footing in civil law
Presence of the jury in criminal law
Civil matters also exclude all the evidentiary issues relative to non-penal administrative disputes i.e. those with or between public entities (different levels
of government).
ii) Nature of rules of evidence (overview)
a. Substance or procedure?


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On the one hand, asking to prove your right is the same thing as having that right, so one could say that the law of evidence is concerned with substance.
But on the other hand, we are concerned with the procedure, and it does not affect the merits of the decision, therefore, one could say that the law of
evidence deals with procedure
This matters a lot in international disputes. It is possible that a judge sitting in one jurisdiction be required to resolve the dispute in accordance with another
law. The question that will then arise is whether the judge ought to apply the procedural rules of the foreign jurisdiction as well.
Art. 3130 CCQ provides that “evidence is governed by the law applicable to the merits of the dispute,” unless Quebec law is more favourable to
establishing evidence. For the CCQ, at least, this is distinct from procedure, which is “governed by the law of the court seised of the matter.” (CCQ 3132).
Thus, there is a tendency in Quebec civil law to characterize rules of evidence as substantive.
b. Mandatory or not?


At various points, we will come across issues and will have to decide whether the rules of evidence are mandatory or not. To answer that question, we
need to think of the basic underlying policies.
For example, in the rules dealing with hearsay, there appears to be some discretion; thus, it appears certain rules of evidence involve some discretion.
Draft Rules on Transnational Civil Procedure with comments: Introduction
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Harmonization of procedural law has made less progress than the harmonization of substantive law because there is the assumption that national procedural
systems are too different from each other and too embedded in the political history of and cultural tradition to permit reduction or reconciliation of
differences among legal systems.
This project endeavours to draft procedural principles and rules that a country could adopt for adjudication of disputes arising from international
commercial transactions.
Fundamental similarities in procedural systems: although there are differences, there are also similarities, like the establishment of facts through proof…
The differences are, along one division, differences between common law systems and civil law systems, for instance, the judge in civil law systems, rather
than the advocates in common law systems, has primary responsibility for development of the evidence and articulation of the legal concepts that should
govern the decision.
The Principles express basic concepts of fairness in resolution of legal disputes prevailing in modern legal system… “The rules are a suggested
implementation for the principles, providing greater detail and illustrating concrete fulfillment of the Principles. Both principles and Rules seek to combine
the best elements of the adversary procedure in the common law tradition with the best elements of judge centered procedure in the civil law tradition.”
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iv) Objectives of the Law of Evidence
What does this area of the law fundamentally seek to achieve? There is a plurality of objectives, here. Sometimes these conflict. Conflict of principles.
Evidence law has a plurality of competing objectives.
a. Discovery of the true facts of the case
Damaska says truth should be the central objective of the law of evidence in both civil law and common law tradition even if we have some serious doubts about
whether or not it is possible to know the truth in an objective sense.
“Truth in Adjudication”, Mirjan Damaska

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“One of the working assumptions of the practice of adjudication is that truth is in principle discoverable, and that accuracy in fact-finding constitutes a
precondition for a just decision”.
Two problems with this:
o Uncertainty about the ability to find objective truth (i.e. post-modernism)
o Realization about the fallibility of our fact-finding methods, particularly when the object is human behaviour
However, Damaska says that truth should be the objective of fact-finding, even though we have serious doubts about whether it is possible to know
the truth in an objective sense (what would be the alternative way of administering justice?) Adjudicators can strive to know the truth within the
constraints of a socially-constructed world.
o The only place this really breaks down is when society is divided and the culture that controls the court system is different from the one that is
subject to it.
o Law deals with “a jumbled mixture of matters of unequal ontological status” and treats them all on the same level. This may be appropriate,
though. Subtleties and conceptual refinements that are of interest to academic disciplines may be irrelevant for law’s purposes.
There are certain situations however where law comes face-to-face with glaring uncertainty:
o predictions of the future: e.g. in assessing long-term injury in tort cases
o socially constructed concepts: assessing someone’s motives or intentions; whether someone is behaving reasonably; moral prejudice
o scientific uncertainty—absence of evidence even though proof is theoretically possible
Damaska also notes that the truth-seeking goal of adjudication may clash with other goals:
o Law-making: may be subordinated to the goal of setting a precedent for other cases.
o Dispute resolution: In minor cases, the judge relies on evidence presented by the parties. Even if neither case is convincing, the judge will rule in
favour of the more convincing case (on the basis of probability).
Damaska calls for greater attention to the diverse goals of legal proceedings and their sensitive relationship to fact-finding
Should always study the institutional milieu when looking at evidentiary issues
Our doubts on the feasibility of discovering the true facts come from the difficulties we encounter when dealing with both future and past/present events. For
example:
 Future events. When the fact-finding process concerns future event, we can only expect reasonable predictions. (E.g.: adjudicator has to evaluate
prejudice in a civil liability case, and in doing so he needs to evaluate issues relating to future revenues, and incomes…)
 Past/present
 “Socially constructed facts”=socially constructed facts don’t exist in the physical world and therefore cannot be verified the same way hard facts can
(E.g. Somebody’s intention cannot be accurately verified; whether something can be classified as harassment; whether the person was negligent).
 “Hard facts” = facts which in theory could be capable of accurate verification [where was a car parked…]. In practice, it is not always the case, because:
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

“Specialized hard facts” cannot be verified at this point in history because of limitations of human knowledge.
“Simple hard facts” can face adjudicators with very practical problems. We always will have doubts on the reliability of the evidence adduced to prove
something. Testimonial evidence is never entirely reliable; distortions and mistakes are always possible; furthermore, the authenticity of digital technology
is never certain. Also, the evidence may not be available or may not exist
Are these doubts of our ability to achieve truth enough to rethink the place of truth in evidence law?
  Bachand and Damaska say no!
 Some argue that all facts are solely socially-constructed. Objective reconstruction of facts is seen as a mere illusion. This view has a hard time insuring the
legitimacy of the decisions.
 According to Bachand, on the other hand, adjudication as we know it today is seen as sufficiently legitimate. The real crisis rather relates to the lawmaking aspect of adjudication.
 Even though we must concede that objective truth can never be ascertained accurately in all cases and remain aware of our own shortcomings, we have a
sufficient belief in objective knowledge (according to Damaska) and in our ability to reconstruct objective knowledge. This view advocates the legitimacy
of adjudication.
Given our doubts about the possibility of finding truth, it wouldn’t make sense to require adjudicators to find absolute truth: adjudication would be impossible,
and all rights would be virtually unenforceable through the adjudicative system because the burden of proof would be impossible to meet. As such, both CVL and
CML never speak of truth of adjudicative facts in terms of absolute certainty. Instead, we speak of truth in terms of probability. In other words, the “standard
of proof” is not and never is absolute certainty.
The question is whether this lower standard effectively discards ideals of determining truth – at the very least the fact that we admit that doubt may exist shows
awareness of our limits and some concern with results of fact-finding.
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“A Comparative View of Standards of Proof” by Kevin Clermont and Emily Sherwin
Introduction
• The authors argue that unlike the common law tradition, civil law countries require plaintiffs to convince the trier of fact that his or her assertions are true.
• Assuming that the standards of proof operate in practice as they are stated in the texts, the difference between CML and CVL has great practical importance
and suggests a basic difference in attitudes toward the process of the trial.
I. Comparative Observations:
• In CML countries the degree of probability required in civil cases is lower than that called for in criminal matters.
• In the U.S. different civil and criminal standards clearly exist, with lots of attention expended over the years on what that standard should be.
II. Explanation of Historical Divergence
• A preponderance of the evidence, or balance of probabilities, standard now governs in Quebec, as it does in the rest of Canada.
• There is a correlation between the existence of a civil jury and the development of the preponderance standard: because of the jury’s need for instruction, the
common law had to acknowledge the role of uncertainty in decision-making—while the civil law could sweep such matters under the rug and so freeze in
time underdeveloped notions of probability.
Why have CVL retained this higher standard (which is closer to absolute accuracy)?
A. Inattention to the Problem
• Authors argue that this topic is not a serious subject in the university curriculum in France but is in fact studied in other countries, like Japan.
• They offer another weak possibility: civilian scholars misunderstand the probabilistic character of decision-making.
B. Insignificance of the Problem
• Authors do not buy the idea that “whatever civil-law and common-law courts say about the level of proof required, they may find facts and decide civil cases
similarly in actual practice.” It has practical consequences in some cases.
• Existing empirical data indicate that standards of proof CAN make a practical difference.
• The difference is significant because it affects how people feel and think about adjudication.
• Uses the O.J. case as an example of how each standard can lead to very different conclusions.
C. Avoidance of the Problem
D. Purposiveness Behind Standards (Reasons why the CVL might wish to retain its high standard in civil cases)
•
•
•
Authors note that a high civil standard, combined with a burden of proof that requires plaintiffs to prove the elements of their claims, quite obviously makes it
difficult for plaintiffs to succeed.
Authors reject a number of reasons. They think that it is hard to believe that civil-law societies, otherwise so similar to common law societies, would reach a
different general conclusion about the relative merits of plaintiffs and defendants. Further, although litigation costs are a real worry, they hardly justify
skewing outcomes without regard to the merits. Lastly, a high standard of proof would be a clumsy way to restrain judges.
Authors believe that legitimacy may be the reason. The civil law may retain its high standard with the aim of increasing the apparent legitimacy of judicial
9
•
•
decisions.
As no court has unlimited time and resources, however, this standard cannot conceivably advance truth the practical effect of this high standard is not that
truth will prevail, but that the party favored by the burden of proof will enjoy a huge advantage.
Authors compare the civilian standard to the common law standard: CML obtains more accurate results, by determining the most probable state of affairs in
each case. It also permits the court to maintain a more impartial stance toward litigants, because it equalizes the litigants’ positions.
Conclusion
• Authors argue that the best explanation is that the different civil standards employed by civil-law and common-law courts conform to subtle differences in the
procedural objectives of the two systems. The civil law seeks the legitimating benefits of the myth that their courts act only on true facts and not on mere
probabilities. Common-law courts seek legitimacy elsewhere, perhaps in other myths, and thus are free to adopt the standard of proof that more fairly and
efficiently captures the real truth of the case.
Michele Taruffo, Rethinking the standard of proof [optional reading, WebCT]
Author criticizes Clermont and Sherwin article on the following grounds:
1. A reductivist fallacy
o It is an unwarranted inference to take France as an example and extend it to other civil law systems because France is not representative of the
civil law world; it many regards, it is unique.
o Civilian inattention to matters of procedure and evidence is not true in other European countries, such as Italy, Spain…
2. Lack of adequate specific information
o On both sides of the America v. the rest of the world divide, things are very complex and diversified.
3. Theoretical inadequacies
 Not true that civil law countries apply the same standards of proof in both civil and criminal cases.
 They do not offer preponderant evidence supporting their claim and there is a need for empirical evidence
 No rule, in any law system, requires the courts to apply in civil cases the same standard as applied in criminal cases
 Even assuming that there it no clear distinction between civil and criminal standards of proof, this does not imply that the civil standard is equivalent to that
of the proof beyond reasonable doubt.
 Clermont and Shermont argue the standard of “intime conviction” is equivalent to the standard of proof beyond reasonable doubt, which is not the case. The
standard stresses the value of the subjective intimate persuasion of the judge but does not mean the judge must base himself on a high standard.
 Sherwin and Clermont rely on a statistical and or quantitative probability standard but the evaluation of truth requires much more sophisticated concepts.
 Rules concerning the allocation of burdens of proofs should not be confused with the standards for determining the weight of proof that is required in order
to consider a fact as proved.
Procedural systems in search for truth?
 It is reasonable to assume that all procedural systems are basically aimed at the resolution of civil disputes, and that the function cannot be considered a
peculiar feature of litigation in civil law systems.
 There is no logical contradiction between the search for truth and the resolution of disputes, since disputes may well be solved also on the basis of truthful
decisions.
 The only relevant problem is that the goal of dispute resolution can be achieved in different ways, depending on the structural and functional characters of
the various procedural systems.
 The American system is not especially oriented to the search for truth b/c:
o It does not include search for truth among the main goals of litigation
o A wide set of exclusionary rules such as those of the American law of evidence is hardly compatible with an effective search for truth
o One may wonder whether the American discovery, with all its known abuses, is really aimed at the search for truth
10
o
o
One may wonder whether cross- examination is really the best legal engine ever invented for the discovery of truth or whether it is a mental duel
in which the lawyer’s main purpose is to destroy the witness when he is telling the truth
The jury-trial system is not an efficient method for achievement of truthful decisions since we never know what standard the jury applies and
what are the reasons underlying its decision.
Bachand’s comments:
 Bachand does not think absolute truth is the standard in civil law jurisdictions. The point is simply that the standards are different. The proof of fact has to
be based on a high degree of probability.
 EU scholars have said, as mentioned in the article, that the difference is merely formal because in practice, judges will function in a very similar way, and
the standard they apply is similar.
 For example UNIDROIT’s Principle 21.2 states, “Facts are considered proven when the court is reasonably convinced of their truth.” The adoption of this
principle did not cause too much “remue-ménage” which tends to confirm that the Taruffo was indeed right: there is not a big difference, in practice,
between the standards.
 UNIDROIT’s Rule 28.2: “The court must determine factual issues…according to the standards of proof under forum law.”
Which approach is more desirable? Should we move from the balance of probabilities standard to a more stringent one?
Stringent standard is good!
 A high standard of proof can be a good instrument to limit the amount of frivolous litigation, which is good if you consider lawsuits are to be avoided for
social reasons.
 A higher standard has the advantage of increasing the legitimacy of adjudication. It reduces the risk that an unfounded claim will succeed and thus
reduces the risk of improper use of the state force of power
 A more stringent standard can increase objectivity and limit the possible misuse of state power. That is a traditional justification in the civil law tradition
because we are less comfortable with the idea of subjectivity.
Stringent standard is bad!
 The drawback is equally important. Increasing the standard of proof tilts the balance too heavily in favour of the defendants (Sherman) in uncertain cases –
in favour against whom rights are being asserted.
 Well-founded claims may not succeed. In such a system, there most often will be a decision favouring the defendant rather than favouring the party
which has the most probably truthful claim. You are left to adopt a system where you are favouring a party – rather than favouring a claim which is most
probably true
 Hampers access to justice
There is no valid reason to have the balance tilted towards the defendant in civil matters.
In criminal matters, we agree that is perfectly fine to let a criminal free if it entails a significant reduction of the risk that an innocent will be convicted. In the
criminal context there is an imbalance between the state and the suspect. It leaves us to believe that it is fine to favour one over the other because it is good social
policy. Even if that means that a criminal may go free.
In civil matters, it makes more sense to treat the parties equally so that they bear equally the burden in the fact finding process. The best way is to adopt a
standard which focuses on the parties whose factual claims are the most probable as opposed to the parties against whom the legal rights are being claimed.
 Think of the relationship between the applicable standard of proof and the values that we are promoting. These rules are not merely procedural rules
but are also based on important substantive rationales – truth is valued more in a system of lower standard of probabilities than a higher one and conversely,
legitimacy can sometimes be a more important objective than overall truth.
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What is the purpose of the adjudication?
 Finding the truth?
 Putting end to a dispute?
 Preservation of public order?
The burden of proof in Québec
The common law inspired standard of probability is the one applicable in Quebec. As spelled out in 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”.
Higher standard of proof in “special” civil cases
Although generally speaking, the balance of probability standard is applied in civil law disputes, there are exceptions. Authorities, in several common law
jurisdictions stand for the adoption of a more stringent standard when important interests are at stake.
o The US Supreme court has recognized that there is a second standard, higher than balance of probabilities, which requires clear and convincing evidence. It is
applied in special cases, for e.g. cases that raise issues of civil fraud or quasi-criminal wrongdoings (parental rights, civil cases concerning commitment to a
mental hospital).
o English case law is not as clear: few lower courts decisions suggested a second standard may exist. Basically, U.K. law is moving in the same direction but has
not reached the point that has been reached in US law at this point.
o In Canada, the situation is unclear at best. The Auberge des pins case is an illustration of this confusion.
o See also Technologie Labtronix, where the Quebec Court of Appeal held the trial judge to a higher standard (actually overturning a finding of fact without a
palpable and overriding error) because of the potential impact on a lawyer’s career of finding evidence of attempted bribery
Auberge des Pins Inc.
Facts:
 Auberge des Pins served as a hotel. Its owner was trying to sell it. It was destroyed by fire. The insurance company refused to pay the assuree, claiming he
had lit the fire himself.
 The insurance company appeals claiming the judge made a mistake on the standard of proof to be applied: “l’application d’un critère inapproprié pour
déterminer la nature du fardeau de l’incendiat…Ils reprochent au premier juge d’avoir appliqué un critère intermédiaire entre la norme habituelle de la
preuve civile, celle de la prépondératrice de la preuve ou de la balance des probabilités,et le critère pénal, c’est à dire la preuve hors de tout doute
raisonnable”.
Issues: What is the standard of evidence in civil disputes involving criminal or more serious issues?
Superior Court decision:
 The Superior court refused the claim, saying the evidence was not sufficient to prove on a high balance of probabilities, that the owner of the Auberge had
lit the fire.
 The court applies a “forte prépondérance des probabilités” standard. It relies on a 1982 Supreme Court Case, Dalton, which stated that: “dans une poursuite
civile comme la notre, c’est ce fardeau de preuve qui imcombe aux assureurs mais le degré de prépondérance des probabilités doit être encore plus grand à
cause du caractère criminel de l’incendie reproché à l’assuré, soit pour l’avoir allumé lui même ou fait allumer par un autre pour son compte et bénéfice”.
Court of Appeal decision:
 Confirmed that there is only one standard: BoP, even when concerns proof of a criminal act. Standard is lower than in criminal cases because the defendant's
liberty is at stake, and the same moral blameworthiness will not attach; the consequences are only patrimonial.
 However, it says the judge can scrutinize the evidence with more care depending on the nature of the act to be proven: “ les degrés de probabilité varient
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


selon la nature du fait à prouver…ainsi les tribunaux sont plus exigeants sur la qualité de celle qui est requise pour établir un acte criminel dans un procès
civil” (para 176).
The court says the superior court judge was misguided in his application of the standard of proof. The issues at stake in civil actions remain mostly
patrimonial and in no way require the application of a high standard of proof similar to the criminal one.
This mistake led the court to mis-appreciate all the elements of the evidence. It disregarded some ocular evidence. Therefore, the court overturns the
decision.
Thus, only one standard of proof in QC but court can “scrutinize evidence with greater care” (whatever that means) where sensitive issues are in play (eg,
accusations that impugn one's character)
Comments:
 The reading is unclear. The court of appeal had an opportunity to clear up the state of the law, but it did not. The unclarity remains today in Quebec civil
law.
 The more general point to draw from this discussion is that despite the fact that things are evolving in different manners, there seems to be an emerging
consensus to the effect that in exceptional cases, it may not be appropriate to apply the balance of probability standard because those are cases where it
makes sense to consider that one party deserves more protection than the other. If you are in one of those cases, and you can make an argument that there is
a valid justification for setting aside the equal footing principle, then you can argue that the evidence should be scrutinized more carefully.
Common law Canada: F.H. (SCC, October 2008)
 Suing for sexual assault in a residential school
 Court said that there is only one standard, but also that context is important and that judges should be mindful of the seriousness of the allegations and
the impact that the finding on the defendant
 So we have officially one standard, but the judges are also supposed to be mindful of the situation
ALI/UNIDROIT 21.2: “facts are considered proven when the court is reasonably convinced of their truth”.
b. Furtherance of public policy goals deemed more important than the search for truth

Truth is not an absolute objective of the law of evidence. Sometimes, it is outweighed by public policy concerns. For instance, privileges exclude all
information which would normally lead to more accurate conclusions; also, improperly obtained evidence.
c. Ensuring the efficiency of the adjudicative means

Some adjudicative rules are there to assure the efficiency of the adjudicative means. This is why we have the res judicata rule; even if a court got in
wrong in the first place, we are denied the opportunity of appealing on facts because we need efficiency.
B. OVERVIEW OF RELEVANT SOURCES
When it comes to the formal sources of the law of evidence, we can distinguish between those applicable to courts, quasi-judicial tribunals and consensual
arbitral tribunals.
i) Fact finding before courts

In civil law, the primary source of evidence rules that apply to courts are contained in the Civil Code (sec. 2803-2874) and the Code of Civil Procedure.
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

In common law, there is a hybrid nature of the source of evidence laws. It’s traditionally a judge made body of law. Nonetheless, many statutes and
statutory instruments have been enacted in an attempt to codify the law of evidence. However, these texts don’t intend to be exhaustive and replace judge
made law; rather, they exist because a need has been felt to clarify or reform the common law of evidence on certain points.
The only exception to this is the American codification. The Federal Rules of Evidence comes much closer to an exhaustive codification of the procedural
rules. This raises the question of whether US law is even common law, given the increasing importance of codification.

Now, in both the civil and the common law traditions, there are several rules that you find in substantive fields of the law (divorce law, family law…).

Finally, there is also constitutional law. The general principle is that matters of private law fall within the provincial competence. The exception to that is
that the federal government can theoretically adopt rules of evidence when the dispute deals with civil disputes that have a federal matter (maritime law for
e.g.). In practice, however, the federal government has never occupied this field and this means that a question can arise in practice as to which rules of
evidence would apply. Section 40 of Canada Evidence Act provides for the subsidiary application of provincial evidence law.

Sec. 40 Canada Evidence Act: “In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which
those proceedings are taken …subject to this Act and other Acts of parliament, apply to those proceedings“.

Example: Consider a divorce case heard before a QC court – do you apply QC or Federal rules with respect to evidence? The issue concerns constitutional
legislative jurisdiction. This jurisdiction over a substantive area of the law allows the province to enact rules of evidence that are intended to apply to the
resolution of disputes that concern such matters. Parliament has elevated jurisdiction in certain areas like bankruptcy, divorce, etc. that allows it to enact
evidentiary rules applicable in such case. So, which law will apply to evidentiary issues not specifically addressed by the Canada Evidence Act or the
Divorce Act? S.40 of CEA allows looking by default at law of evidence in province in which action was launched. First apply federal statutory
provisions in the Divorce Act. If the act is silent on evidentiary rules, then refer to QC procedural rules.
ii) Fact-finding before quasi-judicial tribunals

Generally speaking, most of the rules are the same but there are some exceptions because we got rid of exclusionary and technical rules.

An Act Respecting Administrative Justice: The Act establishes the general rules of procedure applicable to individual decisions made in respect of a
citizen. Such rules of procedure differ according to whether a decision is made in the exercise of an administrative or adjudicative function, and are, if
necessary, supplemented by special rules established by law or under its authority.(art.1)
iii) Fact-finding before consensual arbitral tribunals



Party autonomy is the key principle: parties can--to large extent--decide what rules of evidence will be (if no choice, arbitral tribunal decides what rules
will be)
This is an important point: “gaps” are not filled by the CCQ or CML, but rather gives discretion to the arbiter
E.g.: the Éditions Chouette case (SCC, 2003)
o In this case, the issue was whether the parties could by agreement exclude the evidence of witnesses (in order to have a faster trial)
o CA said that you couldn’t contract out of the right to adduce testimonial evidence, for reasons of natural justice, etc.
o SCC reverses this: says that different standards apply to apply to arbitral tribunals than to courts – broad discretion given to the parties to
decide the terms of their own arbitration
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C. Structure of the Course: Three Fundamental Questions


This outline might not exactly fit the structure of evidence law in either the civil or the common law tradition because they have very different approaches.
CVL approach = narrower:
o Evidence law seen as limited to substantive rules telling the fact-finder what use can be made of the evidence (rules named at elucidating truth);
o Rules on privileges and public policy are not seen as evidence rules
o The role of courts is seen as a procedural question rather than a question of evidence
1. What kind of information is the adjudicative process concerned with?



What kind of information are adjudicators allowed to base their decisions on?
What are they allowed to consider when they are drawing conclusions of fact?
What are they allowed to consider when they draw conclusions of law?
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?
1. What Kind of Information is the Adjudicative Process Concerned With?
A. EVIDENCE RELATING TO ADJUDICATIVE FACTS
When drawing conclusions in relation to adjudicative facts (who did what where when and so on), adjudicators may rely on:

Evidence relating to material facts that was submitted at trial

Evidence relating to circumstantial facts that was submitted at trial

General facts that are beyond reasonable dispute
o Doctrine of “judicial notice”
i) Evidence Relating to Facts Directly in Issue (Material Facts)
Material Facts
 The basic facts that the plaintiff must prove in order to establish the right s/he asserts AND
 The facts that the defendant must prove in order to establish the defense s/he decides to put forward
 E.g.: material facts in simple medical liability case
o Plaintiff argues that defendant botched an operation
 Must prove fault (botched operation), injury, causation  these are all critical material facts
 This is given to us by substantive law
o Defendant contests these arguments
o AND defendant argues that the case is time-barred by prescription
 This is also a material fact
o Thus, the case has at least four material facts that must be considered
Direct Evidence
 E.g. Arson
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o
o
Key material fact to prove: X willingly set his own house on fire
Direct evidence could include witness testimony that X set his house on fire, a video showing X setting his own house on fire, and an email in
which X admits that he set his own house on fire
Material facts, in short, are basic facts at issue in light of the applicable substantive rules. Adjudicative process is first and foremost concerned with these
facts. These are the facts to which the parties and arbitrators will rely on. Direct evidence is, therefore, admissible in any adjudicative proceeding.
ii) Evidence Relating to Circumstantial Facts (Evidentiary Facts)
Also known as Evidentiary Facts
 Material facts can also be proven indirectly by circumstantial facts. Think of this as indirect evidence.
 Parties submit these in an effort to prove indirectly the existence or non-existence of a material fact.
 Reasons:
o No direct evidence available
o Faced with facts that, by their very nature, can only be proven indirectly (fault in medical context is a good example of this)
General Rule: adjudicators may rely on indirect evidence – i.e. it is ADMISSABLE – only if it meets a fundamental requirement of
RELEVANCE
NOTE: Relevance does not go to the weight of the evidence itself, or how convincing it is; it merely relates to the inference – i.e. the relationship –
between the evidence and the issue we are trying to figure out.
a. The Fundamental Requirement: Relevance
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Relevance goes to the relationship between the material fact and the circumstantial fact relied upon in an attempt to prove/disprove that material fact.
 Relevance concerns the relationship between the material fact and the circumstantial fact relied upon in attempt to prove/disprove that material fact
o It has nothing to do with the reliability of the evidence
o I.e. we are not judging whether the video was authentic, reliable, etc. – but whether the fact that X’s car left the scene right after the fire started
can be relied upon to prove he burned his own house
****Inferences are drawn from Circumstantial Facts****
3 points on the “relevance” requirement:
1) The basic threshold, at least in common law jurisdictions, is very low.
 Evidence relating to a circumstantial fact is admissible if that circumstantial fact has tendency to render existence of the mat. fact sought to be proved more
probable or less probable
 Don’t need to show that the evidence WILL or WILL PROBABLY have an impact on the adjudicator’s decision, only that there is a reasonable
possibility that the fact that the car left when it did could make the possibility that the defendant lit the fire more or less easy to prove
o Note that just because judges allow the admission of the evidence does not mean they will use it when making their judgment  the reason for
excluding evidence is really based on efficiency (need to limit the length of trials)
2857 CCQ: All evidence of any fact relevant to a dispute is admissible and may be presented by any means.
US FRE (401): Relevant evidence = “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”.  this rule can be used in any CML
setting because it is the codification of a basic rule
IBA Rules, 9(2): The Arbitral Tribunal shall…exclude from evidence or production any[thing]…for…(a) lack of sufficient relevant or
materiality…



Cloutier v. The Queen (1979) case: Prosecution tried to show that because Cloutier was a user of marijuana, it is more likely that he knew of the content
of a drawer full of weed. Court refuses to admit that as evidence. Relevance has not been met.
Every piece of evidence doesn’t have to have a plus-value to be considered relevant (Anderson – see below)
One of the arguments raised was that it would make sense for courts to have a more stringent standard and ask not whether there is a possibility, but
whether there is a probability. The court refuses this argument: What matters is the possibility (and not the probability) that on the basis of a single
circumstantial fact, that the court will be influenced in making its decision as to whether the material fact has been proven or not
2) Relevance is assessed according to common sense
 In order to establish if the evidence is relevant, the adjudicator must apply basic common sense. It does not require legal reasoning at any point. This
allows for different interpretations.
 In Cloutier, for example, amongst the 13 judges that heard the case, 6 said the evidence was relevant and 7 said it was not. At the Supreme Court level
there was still a disagreement between the judges sitting on the bench.
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Cloutier v. The Queen, [1979] 2. S.C.R. 709
Facts
• Cloutier was charged with importing a narcotic into Canada.
• The evidence was that the merchandise was concealed in the false bottom of a dresser, which the appellant asked his mother to store in
her home.
• The issue was whether he knew there was pot in the dresser (The Crown had to show knowledge)
• There was no direct evidence that he was aware of the contents
• One of the circumstantial facts was that the crown wanted to rely on the fact that Cloutier smoked pot.
• The questions raised by this appeal concerned the correctness of the procedure followed
• The trial judge refused to admit in evidence a number of exhibits tending to establish that the accused was a user of marijuana.
Issues
Should the evidence of marijuana use be adduced at trial?
Holding
No, there is no connection or nexus to the material fact (importing marijuana).
Reasoning
Majority: Pratte J
 The general rule as to the admissibility of evidence is that it must be relevant This is the principle states in Halsbury’s Laws of
England: What is relevant (namely what goes to the proof or disproof of a matter in issue) will be decided by logic and human
experience, and facts may be proved directly or circumstantially.
 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.
 The fact that the accused uses marijuana does not create a logical inference that he knew or ought to have known that the dresser
contained a narcotic at the time it was imported “To me there is no connection or nexus between either or these two facts.”
 The use of marijuana by the accused had no probative value in relation to the guilty knowledge, which must be proven by the
prosecution.
Ratio
Comment
Dissent: Pigeon J.
 An evidentiary fact is admissible if the conclusion contended for is one which is fairly and reasonably probable. It need not be the only
conclusion possible.
 In the case at bar, I find a clear connection between the fact that the accused was a user of a prohibited narcotic and the presence of a
quantity of that narcotic concealed in a piece of furniture that was imported from a country in which this narcotic is produced.
 Provided that there is some connection, such evidence must be admitted for what it is worth.
The general rule as to the admissibility of evidence is that it must be relevant.
Is there a relationship between frequent use and the material fact, which is the knowledge of the content of the dresser? How do you
determine? Relevance is not assessed in light of legal rules. It’s only common sense and general knowledge that you can turn to, to
determine relevance. This reality explains why 13 judges at the SCC were split evenly in this case. It is your knowledge and background that
will form your opinion on whether it is relevant.
3) Exclusionary discretion




Finding the basic relevance threshold has been met does not necessarily end the analysis. The law gives to fact finders the discretionary power to
exclude evidence otherwise relevant for policy reasons that relate to a cost/benefit analysis: are the benefits we get from accepting this evidence greater
than the prejudicial effects it might have?
By prejudicial effects, we mainly mean a prejudicial effect on the other party.
In Anderson, the risk was that jury would improperly draw the inference that by making subsequent repairs to the dangerous intersection, the
municipality had admitted its liability = risk that jury would come to incorrect conclusion based on circumstantial evidence.
403 US FRE: “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.
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



…danger of unfair prejudice, confusion of issue, misleading the jury = considerations having to do with search for truth
…undue delay, waste of time or needless presentation of cumulative evidence” = considerations having to do with efficiency of
adjudicative process
 Some uncertainty re: whether efficiency concerns can justify exercise of exclusionary discretion in civil matters in Canada
According to most authors, this codifies a basic common law rule. Some have doubts as to whether the second part applies in civil matters, but the
majority view is that it does.
Bachand thinks it is legitimate for judges to have this particular power: otherwise it would be difficult for judges to prevent a party from bringing in 100
witnesses all saying the same thing
Québec law
 Art. 3041, Avant-projet de loi portant réforme au Code civil du droit de la prevue et de la prescription en droit international privé: “Le tribunal peut
declarer irrecevable un élement de preuve dont l’importance paraît minime et négligeable par rapport à la question principale en litige, si cette prevue est
susceptible d’entraîner la confusion ou de causer un prejudice grave à la partie adverse”
 Since this rule mentioned clearly the existence of a discretion to exclude evidence on basis of prejudice was not included in final Civil Code of Quebec
(why?), some have said the exclusionary power does not exist in civil law. But it does exist, it is simply not codified.
Anderson (Guardian ad litem) v. Erickson (BCCA, 1992)
Facts
• Car accident – dispute as to whether the city’s placement of a stop sign constituted negligence
• A neighbour, Arcand, wanted to testify that:
o There were lots of accidents before the stop sign was moved (evidence admitted)
o There have been no accidents since (evidence ruled inadmissible)
Issues
Should the judge have allowed Arcand to testify (which would served as circumstantial evidence to the fact)?
Holding
Yes. The trial judge had erred in excluding the evidence and the jury's decision would not necessarily have been the same if the evidence
had been admitted
Reasoning
 The judge begins with the fundamental proposition that evidence which is relevant, and which is not excluded by any rule of evidence,
is admissible.
 Was the evidence relevant?  YES
o 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
o Evidence which tends to make the existence of a fact in issue either more or less probable is logically probative of that fact
o In this case, it is essential fact to be proved is that the stop sign was difficult to see at the time of the accident
o Arcand’s evidence was logically probative of that fact, in that it could reasonably support the inference that the sign used
to be less visible to drivers
 Was the evidence inadmissible by virtue of any exclusionary rule?  NO
o Canada does not use a “supercharged” theory of evidence whereby every piece of evidence must have a plus value before
it can be conceived as evidence
o “Repairs” exclusionary rule doesn’t apply in Canada
o There is an exclusionary rule, which is a general discretion, which a trial Judge is said to have, in a civil case, to exclude
evidence the relevance of which is overshadowed by its prejudicial effect.
o “The exact scope of the discretion of the court trying a civil case, to exclude otherwise relevant evidence because of its
prejudicial effect, is a complex question that can be left for another day. I am satisfied that whatever that scope may
be, it was exceeded in this case.
o Only potential prejudice was that the jury might infer that by moving the sign the city was admitting negligence – and the
jury could be told not to make that assumption (thus there wouldn’t be a prejudice that could justify the exclusion)
Ratio
Evidence which is relevant, and which is not excluded by any rule of evidence, is admissible. The standard is very low. The discretion a
19
court has to exclude evidence based on the prejudicial rule is narrow.
Thus, the exclusionary discretion is important for two reasons: (1) to avoid any prejudicial effect; and (2) to promote efficiency. The judges will conduct
a cost-benefit analysis: if the costs of admitting the evidence will outweigh any benefit in the fact finding process, the evidence will be excluded.
b. The regulation of inferences that may be drawn from circumstantial facts: presumptions




While relevance is about whether circumstantial facts can bear on adjudicator’s decision, the topic of presumptions concerns how circumstantial facts
will bear on adjudicator’s decision  i.e. what kinds of inferences the court can draw from them
The general rule is that fact-finders have the discretion to decide what inferences will be drawn.
However, some rules derogate from this general principle by telling the adjudicators what inferences to draw: presumptions.
Defined by Cornu (p. 448)
C.C.Q. Provisions:
2846. A presumption is an inference established by law or the court from a known fact to an unknown fact.
2847. 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.
2849. Presumptions which are not established by law are left to the discretion of the court which shall take only serious, precise and concordant presumptions
into consideration.
US FRE 301. Presumptions in General 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 nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
ALI/UNIDROIT 21.3: When it appears that a party has…relevant evidence that it declines without justification to produce, the court may draw adverse
inferences…
Crispino c. General Accident Insurance Company (QCCA, 2007)
Facts
 A building is burned down deliberately (this is common ground) and the owner (Crispino) sues the insurance company for a payment
 There was no direct evidence that Crispino set the fire
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
Issues
Holding
Reasoning
Ratio
However, there were a number of circumstantial facts:
o The appellant’s key was in the lock
o The appellant mentioned different reasons to police for being at the scene of the crime
o The appellant, upon hearing of the fire, prepared breakfast for his wife before going to the scene
o Etc.
 The trial judge says that no one factor would have convinced her that Crispino set the fire, but all of them together make it more likely
that he did than anyone else (a “burden” Crispino did not discharge)
 The trial judge makes a presumption that the Crispino set the fire, and so denies recovery
Did the trial judge’s presumption satisfy the standards “serious, precise and concordant” set out in art. 2849?
No, the trial judge erred in law in making presumptions that didn’t satisfy this standard (or maybe not even applying the principles of 2849)
 Evidence about the key: some probative value, but not sufficient
 Evidence about the changing story: might have a bearing on Crispino’s credibility, but has little if any probative value as to whether he
set the fire
 Evidence about the breakfast: doesn’t mean he set the fire, maybe he was just nice!
 Trial judge’s assumption that no one else could have set the fire was untested
 Respondent had burden of proof, not appellant – this was not discharged
 Trial judge also failed to take lots of other relevant factors into account, including Crispino’s good financial situation, the fact that a fire
put his other buildings (and their rents) at risk, etc.
 Reference to the fact that where a criminal act has been committed, “the proof must be of sufficient quality to permit the inference to be
drawn”
Evidence which is relevant, and which is not excluded by any rule of evidence, is admissible. The standard is very low. The discretion a
court has to exclude evidence based on the prejudicial rule is narrow.
2 types of presumptions : (1) Permissible and (2) Mandatory
1) Permissible Inferences – Presumptions of Fact:
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
Effect: authorize (not oblige) adjudicator to conclude from proof of a certain Circumstantial Fact that a Material Fact has been proved
o i.e. rules that set out permissible inferences
o i.e. Circumstantial Fact 1 is sufficient basis to infer that Material Fact 1 proved
o All it is saying is that it is not an error of law for the adjudicator to draw this inference.
Art. 535.1. para 4 of the CQQ is a good example of this: when the court is seized of any action concerning filiation, it may order the analysis of a sample
of bodily substance so that the genetic profile of the a person involved in the action may be established. “The court may draw a negative presumption
from an unjustified refusal to submit to the analysis ordered by the court”.
However, presumptions of fact are mostly found in common law jurisdictions  rare in CVL jurisdictions
These presumptions were developed on the basis of frequently recurring fact patterns.
Their goal is to achieve certainty and predictability in the fact-finding process.
535.1. …The court may draw a negative presumption from an unjustified refusal to submit to the analysis ordered by the court.
Fontaine v. B.C.
Jurisdiction
Facts
1998 SCC
 Appellant claimed damages with respect to the death of her husband, who was found dead in an overturned truck (no one saw the accident)
21
Issues
Holding
Ratio
after a storm
 She alleged that the fact that the vehicle left the highway is prima facie evidence of the driver’s negligence, on the basis of res ipsa loquitur
Is the res ipsa loquitur a presumption of law or fact? (note: res ipsa loquitur – the thing speaks for itself)
Is a presumption of fact.
Major J:
 The doctrine of res ipsa loquitur is not a presumption of law, just a permissible presumption of fact. It allows the fact-finder to draw an
inference of negligence from circumstantial evidence, but it does not compel such an inference.
 The doctrine of res ipsa loquitur traditionally applied:
o (1) When the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for
whom he is responsible or whom he has a right to control;
o (2) The occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on
a balance of probabilities, that the defendant must have been negligent.
o (3) There must have been no evidence as to why or how the occurrence took place (if there is, then appeal to res ipsa loquitur is
inappropriate, for the question of the defendant’s negligence must be determined on that evidence)
 In any case, the doctrine of res ipsa loquitur is more or less redundant, and should be treated as expired.
 After all, this doctrine was nothing more than an attempt to deal with circumstantial evidence.
 That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to
determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the
plaintiff has done so, the defendant must present evidence negating that of the plaintiff or the plaintiff will succeed.
 The court said that, in the present case, the defence succeeded in producing alternative explanations of how the accident may have occurred
without negligence. These explanations were grounded in (direct) evidence and were adequate to neutralize whatever inference the
circumstantial evidence could permit to be drawn.
Bachand
 Adjudicator MAY infer from (i) proof of control of thing that cause the prejudice (Circumstantial Fact 1) (ii) proof that prejudice would not normally
occur without negligence (Circumstantial Fact 2) that defendant was indeed negligent (Material Fact 1).
 Thus, it appears that this rule still exists, but the judge still has the discretion to conclude that there are other facts that override the presumption.
2) Mandatory Inferences – Presumptions of Law:

Presumptions of law are mandatory inferences that compel the fact finder to draw specific inferences from circumstantial facts.
There are two types of presumptions of law: (i) rebuttable and (ii) irrebuttable
(i) Rebuttable Presumptions
There are two types of rebuttable resumptions:
 “Weak” rebuttable presumptions are extinguished if the other party provides any evidence to rebut them. Otherwise, the fact-finder has an obligation to
draw a certain inference. In Bachand’s words, Material Fact 1 is considered proved unless there is evidence that tends to disprove the Material Fact 1
o I.e. evidence on the basis of which adjudicator could conclude to non-existence of Material Fact 1
o If this is done, the adjudicator is back to square 1: the presumption is gone, and the adjudicator is free to use his own discretion
o These are only found in the common law tradition (and in Quebec).
o Some would argue that these are not really presumptions of law.

“Strong” rebuttable presumptions shift the burden of proof to the other party. The fact-finder must draw a certain inference unless the other party can
provide evidence which rebuts the presumption on the balance of probabilities – actually must establish the non-existence of Material Fact 1 on a Balance of
Probabilities
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o
Civil law is typically concerned with strong presumptions—usually those that shift the burden of proof
(ii) Irrebuttable
 Some presumptions of law are supposed to be “absolute” or “conclusive.” Thus, if the circumstantial fact has been established, the adjudicator MUST hold
that the material fact has been established, irrespective of any proof to the contrary.
 Prof. Bachand doesn’t like absolute presumptions: He says that one can always find another way of getting to the same result without same risk of
injustice – seen as fictions that make the law not transparent and not predictable.
 Some authors say that absolute presumptions are not presumptions at all; they are substantive law.
 Bachnd believes that irrebuttable presumptions can be contrary to the rule of law, as the judge can be convinced (ex. 95% sure) about a certain material
fact, but that have to, because of the irrebuttable presumption, conclude in a certain manner.
Banque Nationale du Canada v. Soracchi, (QCCA, 2000)
Jurisdiction Quebec Court of Appeal
Facts
 Soracchi and Bitar were getting divorced.
 During the proceedings, Bitar agreed to transfer some mutual funds to Soracchi.
 Bitar was insolvent, and Soracchi knew this, but there was clear evidence on the balance of probabilities that she acted in good faith.
 The Banque Nationale, which was one of Bitar’s creditors, argued that the agreement had to be deemed fraudulent under Art. 1632 CCQ.
Moreover, CCQ 2847 (an interpretive rule) says that “…a presumption concerning deemed facts is absolute and irrebuttable.”
Issues
1) Does article 1632 of the CCQ entail an irrebuttable presumption of law? (i.e. is the presumption of fraud rebuttable or irrebuttable?)
2) Can the wife rely on the fact that she acted in good faith despite the absolute nature of the presumption as outlined in Art. 1632?
Holding
1) No; 2) Yes.
Reasoning
Forget J (majority):
 The presumption of fraud has been successfully rebutted.
 Wife acted in good faith even though she must have been aware that her husband would become insolvent pursuant to the
agreement.
 Under the old code, the presumption was rebuttable. While the intention to defraud the creditor was assumed given the knowledge of
insolvency, evidence of good faith could be adduced to rebut the presumption. (Judge cites Beaudouin et Jobin)
 Court rejects the Banque’s interpretation. The agreement was in the public domain and there was no indication that anything was trying to
be hidden. To accept the Bank's argument would mean that all payments that to the creditor's knowledge led to a debtor's insolvency would
have to be considered fraudulent
 Court says the legislature did not clearly express its intention to make the presumption in 1632 irrebutable. “S’il fallait retenir
l’interpretation suggeree par la Banque, il faudrait conclure que tout paiement qui entraine l’insolvabilite du debiteur, a la connaissance du
creancier, serait necessairement frauduleux meme s’il est fait dans le cours ordinaire des affaires (…) Je ne peux me convaincre que tel etait
le but envisage par le legislateur.” (Page 77)
 Legislature couldn’t possibly have intended this result – result-based reasoning
Comments
Chamberland J (dissent):
 The legislature’s intent with respect to Article 1632 was clear.
 While there may be good reasons to interpret the article as Juge Foret did (i.e. he state of the law under the old Code where the presumption
was rebutable), it is not the role of the courts to substitute their version of what the law should be.
Proof that evidence law can be flexible (or at least presumptions can be!)
If you can figure out good policy reasons to make it a rebuttable presumption, you can convince the court to ignore the language of the provision
and the rule of interpretation
23
Questions you should ask when faced with a presumption:
 Is it a presumption of fact or law? Fontaine
o Would be unfair to the defendant to compel judges to find in favour of the plaintiff – better to allow discretion
 Is the presumption of law rebuttable or not?
o Banque nationale
o Court twists its way out from a seemingly oppressive provision – cites a drafting mistak
 (In common law jurisdictions) Is rebuttable presumption of law ‘”weak” or “strong”?
o At common law, no general rule to provide guidance – courts have to figure it out on their own; hence USFRE R. 301 = they are “weak”
(unless otherwise indicated)
 It’s often difficult to distinguish between weak rebuttable, strong rebuttable, and conclusive
Theories of Presumptions
 Often justified by combo of probability, efficiency and fairness.
o Common sense tells us that there is a probative relationship between Circumstantial Fact 1 and Material Fact 1 and it is efficient and fair to assume
upon proof of Circumstantial Fact 1 that Material Fact 1 exists.
o Also, need for fairness for the other party where specifically difficult to prove the Material Fact 1
 But some presumptions are based also (if not exclusively) on other considerations
o E.g. when 2 people die in circumstances that make it impossible to determine who died first, the oldest person is presumed to have died first –
reason here: just need to decide.
 Based on efficiency: we need SOME means of deciding these intractable issues
 No probative relationship whatsoever
o E.g. child born during marriage, spouse of child’s mother is presumed to be father (probability and social considerations)
 Some probative value, but also concerned with historical social issues
o E.g. absentees are presumed dead if absent for 7 years.
o Note: irrebuttable presumptions are in this category.
iii) Hard Evidence (as Opposed to Opinion)
a. The problematic and increasingly irrelevant distinction between fact and opinion
Definition of Opinion Evidence: statements about inferences that should or should not be drawn from circumstantial facts.
COMMON LAW:
Typical/traditional common law approach
 The typical common law position is that the fact-finding process is not concerned with people’s opinion but only with the facts they have directly
perceived. There is a difference between stating facts and proposing an inference to the judge (“he was drunk” vs. “he smelt beer, and talked
incoherently”).
 The reasons standing behind this rule are:
o Efficiency: Drawing conclusions is the heart of the fact-finding process and the judge is more efficient than the witnesses at doing it.
Otherwise, trials would be longer and this could negatively impact the fact-finding process.
o Search for truth: It was considered there was a risk of confusing the jury (jury had to make its own inferences)

In practice, however, the rule’s operation turned out to be problematic:
 It was too difficult to draw the line between what was an opinion and what was a fact, and the rigid rule led to exclusion of evidence that should have
24


been considered by the trier of facts.
It is often difficult for witnesses to express themselves clearly and completely by sticking to factual assertions. Thus, there was a risk of presenting
incomplete testimony.
These practical problems led scholars to rethink this rigid rule. Today, there is no more strict opinion exclusionary rule in the common law world. The
law has evolved so as to grant the fact finder the power to decide whether a specific witness should express an opinion.
Current common law position
Opinion evidence is admissible if:
 Inferences are based on hard facts perceived by a witness (first hand knowledge)
 They are reasonable
 They are useful or helpful to the finder of fact.
R. v. Graat: witness may state opinion if facts from which he/she received an impression were too evanescent in their nature to be recollected, or too
complicated to be separately and distinctly narrated
U.S.FRE, R. 701: “ If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those questions or
inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination
of a fact in issue, and (c) not based on a scientific, technical, or other specialized knowledge with the scope of the rule”.
Bachand: these two standards are not significantly different; the underlying rule seems to be helpfulness – how much the testimony will help the fact-finder
Strong, J.W. (ed.) McCormick on Evidence [C.B. page 513]
The rule against opinions
 Old opinion rule= the witnesses must give facts and not their inferences, conclusions or opinions. The doctrine is based on the assumption that fact and
opinion differ and are easily distinguishable. As this premise is an illusion, the non-opinion rule was proved to be of the clumsiest tools for regulating the
examination of witnesses.
 For those very practical reasons, the standard was slowly relaxed.
 A norm excluding opinion except in instances of strict necessity survives as the rule in a few states courts.
 Even in states that have not adopted the Federal Rules of Evidence or anything similar, courts sanction the admission of opinions on grounds of expediency
or convenience rather than necessity.
 “Convenience” is the standard codified in sec. 701 of the Federal rules of evidence. Rule 701 authorizes the receipt of any lay opinion “helpful” to the trier
of fact. The value of opinions to the jury is the principal test of the Federal Rules of Evidence. It is thus a rule of preference, and not a rule excluding
opinions. The more concrete description is preferred to the more abstract.
Unidroit
R.29-G: The opinion of a witness may be admitted when it will clarify the witness’s testimony. In the recollection of facts, knowledge and memory are often
inextricably mixed with judgments, evaluations, and opinions, often elaborated unconsciously. Sometimes a “fact” implies an opinion of the witness, as for
instance when the witness interprets the reasons for another person’s behavior. Therefore a rule excluding the opinions of witnesses is properly understood as
only prohibiting comments that do not aid in the reconstruction of the facts at issue.
Canadian law
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R.v. Graat [1982] SCC, [page 221 C.B.]
Facts: Gratt was charged for violation of sec. 234 of the criminal code because he was driving a vehicle while impaired by alcohol. Constables saw him driving at high
speed, crossing the centre line, and driving on the shoulder of the road. They noticed the smell of alcohol and a wavy walk. No breath samples were taken. Gratt was
with 2 friends, namely Wilson, who testified that if he had thought Gratt was not in a fit condition to drive, he would have asked him to stay at his house.
Judicial history The trial judge preferred the evidence of the police witnesses to the evidence of Graat and Wilson and therefore he accused Gratt of driving while
impaired. An appeal to the County Court was dismissed. An appeal to the Ontario Supreme court was granted but dismissed.
Issue: On a charge of driving while impaired, can the court admit opinion evidence on the very question to be decided, namely, was the accused’s ability to drive
impaired by alcohol at the time and place stated in the charge? Yes
Decision: Appeal dismissed.
Ratio:
Law of evidence is burdened with cumbersome rules  want to make things more flexible/give judge more control over the trial
2 criteria for the admission of an opinion-evidence: 1) Helpfulness: Is the evidence relevant? + 2) Exclusionary discretion: Is there a ground for excluding the
evidence, thought probative, by a clear ground of policy or of law such as:
 It unfairly surprises a party who had not had reasonable ground to anticipate that such evidence would be offered
 The adducing of the evidence necessitates undue consumption of time
 It usurps the functions of the jury (because the trier of fact is in a better position to decide)
More generally, the court accepts the following as a good statement of the law: “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, a witness may state his opinion or impression. He is better
equipped than the jury to form it, and it is impossible for him to convey an adequate idea of the premises on which he acted to the jury.” (p.225).
Application to the case at bar
 There is a direct and logical relevance between (1) the opinion of a police officer that a person’s ability to drive was impaired by alcohol (2) the ultimate
probandum of the case. The probative value of the evidence is not outweighed by policy considerations. Wilson’s testimony is therefore admissible.
 A non-expert witness can give evidence that someone was intoxicated because it might be difficult for the witness to narrate his factual observations
individually.
 Deciding whether someone is drunk does not call for a specialist.
 Of course, witnesses cannot give evidence as to legal issues (such as whether someone was negligent), only about factual issues (such as whether they were
drunk)
 There may be a tendency for judges and juries to let the opinion of police witnesses overwhelm the opinion evidence of other witnesses, but the opinion of the
police officer is entitled no special regard.
For the foregoing reasons, the court decides the trial judge was correct in admitting the opinions of the police officers and Mr. Wilson.
Comment: Graat denotes a shift, in the SCC jurisprudence, from a rigid exclusionary rule, to a principle rule that delegates a lot of power to the judge. The court
acknowledges that the law of evidence was unclear: “We start with the reality that the law of evidence is burdened with a large number of cumbersome rules, with
exclusions, and exceptions to the exclusions, and exceptions to the exceptions.” Efficiency concerns lead the court to adopt the following principle-rule: in determining
whether an opinion is admissible, the judge shall take the “helpfulness” standard as a general guide, and exercise his judicial discretion.
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In Graat, the Supreme Court’s view of the law of evidence and the move away from “pigeon-hole” approach towards “principled”, discretion-based approach
Conclusion on the reception of opinions in common law: The US rules of Evidence, the Unidroit principles and the Gratt case illustrate a consensus towards a
simplified principled approach: Opinions offered by laypersons can be considered evidence if: inferences are based on hard facts perceived by a witness (first
hand knowledge), and they are reasonable, and they are useful or helpful to the FF.
Québec law
Art 2843 C.c.Q: “Testimony is a statement whereby a person relates facts of which he as personal knowledge or whereby an expert gives an opinion. To make
proof, testimony shall be given by deposition in a judicial proceeding unless otherwise agreed by the parties or provided by the law”.
 This seems to imply that layperson can only testify with respect to factual knowledge and that non-experts may not give opinion – the strict exclusionary
rule still applies.
 QCA has yet to rule on this, but Bachand would be surprised if it stuck to such a literal interpretation, because of the fact that throughout the CML world,
the distinction between fact and opinion is no longer drawn. Also, because of judges’ role as professional FF, and his ability to question witnesses, there is
less of a chance of being misled – a bright line rule is not needed to know that hard facts are more reliable than opinion evidence (a principled approach).
PRACTICAL TIP
There is a basic suspicion about opinion evidence – courts are still on guard when lay witness stops the hard fact and moves to opinion. Judges don’t really like it.
From a tactical perspective to boost credibility of witness when preparing them, still should stick to hard fact.
THE TRANSYSTEMIC FOOTNOTE
Civil law jurisdictions have never been as troubled as Common law jurisdictions insofar as the fact/opinion issue is concerned. CML texts will have a chapter on
opinion. CVL texts will not.
 See paragraph on UNIDROIT principles and the distinction between the systems. The explanation could be that, in the CVL law tradition, there are (1)
no juries; and (2) no inquisitorial process, and so there are very few opportunities to object. Also, witnesses aren’t prepared or coached.
 Also, in CVL jurisdictions, it is the judges who examine the witnesses. Thus, the judges are the ones who decide what – and how – to question the
witnesses.
 In Graat, Justice Dickson says that the law of evidence is burdened with a large number of cumbersome rules, with exclusions, and exceptions to the
exclusions, and exceptions to the exceptions. This case represents a move towards a more discretionary approach. The rules were too technical before.
b. Expert Opinions and the Difficulties Regarding Its Use
When and how to use of expert-opinion
When
Mainly 5 criteria: coming from Mohan case (leading decision in Canada on expert opinion)
1) The expert-opinion must be relevant (relevance requirement often subsumed under the necessity requirement)
2) The expert-opinion must be necessary to establish the facts. (US courts have interpreted this as a broader helpfulness standard)
3) The expert-opinion must be reliable.
a. In both US and Canadian contemporary law, the reliability is assessed by the judge who acts as a gatekeeper, according to
3 factors: 1) has the theory been tested?; 2) has it been subjected to peer review or publication? 3) is there an error rate?
b. Formerly, under US law, reliability was assessed by a strict general acceptance standard.
4) The expert must have sufficient qualifications (have expertise that goes beyond the triers of fact)
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5) Is the admissibility of the evidence prescribed by any discretionary exclusionary rules?
How
In common law system, expert is appointed by the parties, although most jurisdiction recognize the court’s prerogative to appoint experts.
In civil law systems, experts are appointed by the court.
ALI/UNIDROIT Principle 22.4
22.4. The court may appoint an expert to give evidence on any relevant issue for which expert testimony is appropriate, including foreign law.
22.4.1. If the parties agree upon an expert the court ordinarily should appoint that expert.
22.4.2. A party has a right to present expert testimony through an expert selected by that party on any relevant issue for which expert testimony is appropriate.
22.4.3. An expert, whether appointed by the court or by a party, owes a duty to the court to present a full and objective assessment of the issue addressed.
IBA RULES
Art. 5 procedure re: party-appointed experts
Art. 6 procedure re: court-appointed experts
Ontario Rules of Civil Procedure
Art. 52: procedure re: court-appointed experts
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
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Expert opinion = specialized knowledge made available to adjudicator to allow him/her to draw accurate inferences from certain circumstantial facts
We are trying to determine whether circumstantial facts are relevant. The threshold question: is expert opinion needed to assess connection between
circumstantial fact(s) and fact (s) sought to be proved?
Expert opinion may be needed in any type of adjudicative process
 This is obvious with courts, with its generalist judges
 However, may also be needed in cases with expert arbiters
See R. v. Abbey: “With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert’s
function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are
unable to make”. (Cited in Mohan, C.B. p.288)
[Note that it is not allowed on domestic sources of law and their meaning – see judicial notice section below]
When deciding whether to allow expert opinion, courts must balance the search for truth with the efficiency of the process.
Pros and cons of expert opinion (relates to the pros and cons of a more lenient “helpfulness” standard for admitting expert evidence) (see below)
 Pros:
o The search for truth (militates for admitting more expert opinion)  enlarges or restricts the scope of inferences that can reasonably be made
by the fact-finder
 More accurate fact-finding
 Latimer example
 Cons:
o More costs
 Affects efficiency
 Also effects fairness: gives a huge advantage to parties who can afford lots of experts
o Risk of less accurate fact-finding:
 Mohan: “There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific
language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to
be accepted by the jury as being virtually infallible and as having more weight than it deserves”
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o
 Bachand: especially true in jury trials, but can also be a risk in non-jury trials
 The experts are paid by the parties who heavily edit their reports.
Don’t want to reduce the fact finder’s role to simply choosing between alternative experts – they are supposed to determine the facts
themselves
 This would undermine the legitimacy of the adjudicative process  don’t want trial by experts
 Judges have been selected by a very rigorous independent process – held to a very high moral standard – strictly vetted by
society
 Experts, on the other hand, have not been vetted for this job  what if experts are bringing in a whole lot of prejudices?
 Mohan: “too liberal an approach could result in a trial’s becoming nothing more than a contest of experts with the trier of fact acting
as referee in deciding which expert to accept”
 ***Adams
The judiciary may have problems understanding scientific evidence, and expert testimony may help in this respect:
Latimer owed explanation, judge suggests [p. 529 C.B.]
J. Binnie admits the courts have to be more science friendly. Latimer case shows the judiciary’s scientific illiteracy because the court mentioned a painkiller drug
that might not even exist.
When is Expert Opinion Admissible?
When deciding whether to allow expert opinion, courts must balance the search for truth with the efficiency of the process. So, before admitting expert opinion,
courts should consider four substantive requirements which are specific to expert opinion:
1) Helpfulness or Necessity of expert opinion;
2) Relevance of the testimony.
3) Reliability of methodology;
4) Expert’s qualifications or experience;
1) Necessity




The threshold question: is expert opinion needed to assess connection between circumstantial fact(s) and fact (s) sought to be proved?
The “necessity” question raises difficult policy issues because it implies a tension between the search for truth and the efficiency of the fact- finding
process.
There is no consensus, amongst common law jurisdictions on when an expert opinion will be considered necessary.
The question you must ask is: could a non-expert reach a reasonably accurate conclusion using only general knowledge/common sense?
Canadian Approach
Mohan (Sopinka) and the necessity standard in force in most common law jurisdictions
 Mere “helpfulness” sets too low of a standard; necessity is the proper standard
 Expert opinion admissible where non-specialists wouldn’t be able to draw (reasonably accurate) inferences using general knowledge/ common sense
R. v. Mohan [1994] 2 S.C.R. 9 [C.B. p.285]
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Facts:
 The respondent, a practicing pediatrician, was charged with four counts of sexual assault on four female patients during medical examinations conducted in his
office.
 He intended to call a psychiatrist who would testify to the effect that the perpetrator of the alleged offences did not have the characteristics attributable to any of
the three groups in which most sex offenders fall.
Issue: Under what circumstances is expert evidence admissible to show that character traits of an accused person do not fit the psychological profile of the putative
perpetrator of the offences charged?
Ratio:
Admission of expert evidence :
Depends on the application of 4 criteria:
1) Relevance:
 Relevance is a matter to be decided by the judge as a question of law
 Prima facie admissible if logically relevant
 BUT other considerations come into play, namely a cost-benefit analysis, cost being seen as the impact on the trial process
 Logically relevant evidence may be excluded if its probative value is overborne by its prejudicial effects, if it involves an inordinate amount of time, or if it is
likely to misguide the jury (“mystique of science”)
2) Necessity in assisting the trier of fact:
 “Helpfulness” sets too low a standard
 But “I would not judge necessity by too strict a standard”
 The opinion must provide information which is likely to be outside the experience and knowledge of a judge or jury
 Expert opinion admissible where non-specialists wouldn’t be able to draw (reasonably accurate) inferences using general knowledge/ common sense
3) The absence of any exclusionary rule
4) A properly qualified expert:
 The evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on
which he or she undertakes to testify. Expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny
Application to this case
 Nothing in the record supported a finding that the profile of a pedophile or psychopath has been standardized to the extent that it could be said that it matched
the supposed profile of the offender depicted in the charges.
 The expert's group profiles were not seen as sufficiently reliable to be considered helpful. In the absence of these indicia of reliability, it could not be said that
the evidence would be necessary in the sense of usefully clarifying a matter otherwise inaccessible, or that any value it may have had would not be outweighed
by its potential for misleading or diverting the jury.
Comment: This case illustrates that the traditional common law position on the admissibility of expert evidence: it must be necessary. However, it must be kept in
mind that this is a criminal law case; therefore, it might not apply entirely to cases in civil matters (presence of the jury).
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Note: In Quebec, the CCP deals with experts at Art. 413.1 and following.
US Approach


Helpfulness Standard: Even if non-specialists could draw reasonably accurate conclusions on their own, exp. evidence nevertheless admissible if it
would help fact-finder draw more accurate conclusions
702 FRE: admissible if would “assist the trier of fact to understand the evidence or to determine a fact in issue…”
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
Jurisdiction US
Facts
The right tire of Carmichael’s minivan blew out causing the death of one passenger.
Carmichael claimed that the tire blew out because it was defective and not because of the tire’s age and history  Suit against tire maker + distributor
claiming failed tire was defective.
Rested case in significant part on depositions of tire failure analyst’s expert opinion
 Opinion was based on visual and tactile inspection, and upon the theory that in absence of at least two to four specific, physical symptoms
indicating tire abuse, the sort of tire failure that occurred was caused by defect. Kumho moved to exclude expert testimony on ground his
methodology failed to satisfy Fed Rule of Evidence 702 re admissibility of expert testimony.
US FRE 702: Expert opinion is admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue,” even when
laypersons can draw some conclusions.
Issues
Holding
Reasoning
How does R702, as expanded by Daubert, apply to the testimony of engineers + other experts who are not scientists?
Held: R702 doesn’t distinguish between scientific, technical or other specialized knowledge but makes clear that any such knowledge may become
subject of expert testimony.
 Daubert held R702 imposes a special obligation upon trial judge to ensure that scientific testimony is not only relevant, but reliable. Pointed to 4
factors which might help in determining reliability of particular scientific theory/technique: (1) testing, (2) peer review, (3) error rates, and (4)
“acceptability” in relevant scientific community.
 Daubert factors may apply to testimony of engineers and other experts who are not scientists. “Gatekeeping” obligation applies to all expert
testimony and R702 doesn’t distinguish b/w scientific, technical or other specialized knowledge but makes clear that any such knowledge may
become subject of expert testimony. The word “knowledge” in 702 establishes standard of evidentiary reliability.
 The rule requires a valid connection to the pertinent inquiry as a precondition to admissibility. The objective of this requirement is to ensure the
reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.
 R702-703 grants all expert witnesses testimonial latitude unavailable to other witnesses on assumption expert’s opinion will have reliable basis in
knowledge and experience of his discipline.
 Trial J determining admissibility of engineering expert testimony may consider Daubert factors, however R702 inquiry is flexible and the factors
are not a definitive checklist/test. The inquiry must be tied to particular facts. Consider Daubert factors only where they are reasonable measures of
reliability.
 Court of Appeal must apply abuse-of-discretion standard in reviewing trial court decision to admit/exclude expert testimony. Whether Daubert
factors are, or are not, reasonable measures of reliability is a matter that law grants trial judge broad latitude to determine.
 Decision, in this case, not to admit expert testimony was lawful. Q was whether expert could reliably determine cause of failure of particular tire.
Expert here failed to satisfy Daubert factors or any other set of reasonable reliability criteria. No indication other experts use this particular
approach, no references to articles validating it…
 The court excluded the expert’s testimony, although he was highly qualified, because it found the methodology used to analyze the data (visual
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inspection) and the scientific basis to be unreliable  The court found that the expert could not reliably determine the cause of this tire’s separation
(may be due to the abuse of the tire by the plaintiff)

U.S. FRE; R 702: 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, education, may testify hereto 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; (3) the
witness has applied the principles and methods reliably to the facts of the case”.
UK law: Does not adhere to the helpfulness standard because of the risk it will usurp the jury’s role in the fact-finding process. Inferences drawn by experts
should not replace common sense.
R v. Adams, [1996] (Engl. C.A.), p. 209
Jurisdiction English CoA
Facts
 Adams convicted of rape on basis of DNA evidence (statistical probability).
 Issue in the case was the identity of the perpetrator.
 Both parties sought to rely on statistical evidence about what had really happened.
 Defence brought in expert mathematician who reduced the rest of the evidence to a question of statistical probabilities.
Issues
Is the evidence admissible?
Holding
No.
Reasoning
 “…We have very grave doubt as to whether that evidence was properly admissible, because it trespasses on an area peculiarly and
exclusively within the province of the jury, namely the way in which they evaluate the relationship between one piece of evidence
and another.”
 The apparently objective numerical figures used in theorem may conceal the element of judgment on which it entirely depends  it
is not appropriate for use in jury trials, or as a means to assist the jury in their task
 Jurors evaluate evidence and reach a conclusion not by means of a formula, mathematical or otherwise, but by the joint application
of their individual common sense and knowledge of the world to the evidence before them.
 Juries can look to scientific evidence as proof of a particular fact, or as proof of the probability of a particular fact. But their job
can’t be reduced to calculating relative probabilities based on a mathematical formula. Judge misdirected jury around this
evidence, so conviction quashed.
Ratio
Expert opinion cannot be accepted if its only role is to usurp the FF’s role (i.e. have expert act instead of FF, tell him what conclusion to
reach).
Practical differences between the Necessity and the Helpfulness standards
 Example: a case that rested on an eyewitness report
o If the Helpfulness Standard applied, you could bring in an expert to talk about the general unreliability of eyewitness testimony
o If the Necessity Standard applied, you probably couldn’t, since it isn’t NECESSARY to have expert testimony to evaluate the credibility of a
witness – judges do this all the time  maybe not quite as well, but still adequately
 Example: an expert talking about human behaviour in determination of questions of duress, or the effect of warning signs on human minds
2) Reliability
How is the reliability of the expert opinion to be assessed?
US LAW
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First approach: “general acceptance”
 US law used to favour the strict rule of “general acceptance” under which it had to be shown that the underlying theory had gained sufficient acceptance in
the particular field from which it emerged. In order to assess this, adjudicators would consider the level of acceptance of a theory amongst a community of
people who had relevant expertise.
 Benefit  Greatly simplifying the judge’s task, serves efficiency
 Drawback May be too strict a test, can lead to exclusion of novel theories which, even though haven’t reached general acceptance standard, may
nevertheless be sufficiently reliable
o This is what explained the shift in US law to a second approach.
Second approach: “gatekeeping” approach
 The responsibility of deciding on the admissibility of a theory was shifted to the judges, who were said to act as gatekeepers. Their main concern would
then be whether the given theory, on a balance of probabilities, was capable of producing helpful and credible results.
 Certain relevant factors in this evaluation:
o 1) Can it be tested from a scientific point of view?
o 2) Has the theory been subject to peer review and publication?
 General acceptance is no longer the determinant factor but rather one of the relevant factors);
o 3) Is there an error rate and if so, what is its effect on the reliability of the theory?
 Adopted in the US (see Kumho Tire Co.), Canada (Mohan; R. v. J.-L.J., SCC 2000)
 Benefit  Opens up possibility of novel theories being accepted as evidence
 Drawback Judges don’t have specialized knowledge, so how can they make such a decision?
o Also sacrificing efficiency because they might have to appoint a court expert to help judges!
o Judges have said that things haven’t really changed much under this new approach. There is grave doubt of the relative effectiveness of this
approach.
UK LAW The state of the law is mixed and unclear. There is jurisprudence showing the US ‘gatekeeping’ standard has been adopted but Bachand does not think
it’s important enough to show the standard has indeed been adopted in English law.
3) Qualification
Tactical question: do you attack the evidence’s admissibility at the outset by arguing that the expert has insufficient qualifications, or do you let it in but try to
dispute it during cross-examination?
 Judge may be reluctant to tell a well-known professor or doctor that he has no qualifications
4) Relevance
The general requirement of relevance also applies to expert evidence.
HOW IS EXPERT EVIDENCE PRESENTED?
This concerns the manner in which expert opinion ought to be brought to the attention of the fact-finder.
A. The typical civil law approach (excluding Quebec, using France as example)
 Court appoints expert (can do it on its motion)
 Courts have lists of potential experts in specific fields
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Experts remain completely impartial (i.e. like judges). This is a duty.
Courts will determine whether an expert ought to be appointed on the basis of a necessity-like standard
o Unidroit principles, Rule 26.1. provides that the court can appoint an expert/panel of experts if it considers that it might be helpful .The
comments make it clear there was a will to adopt the civil law tradition. Can we conclude from 26.1. that helpfulness is the standard
applicable in the civil law world? Bachand says this is not enough. His guess is that French judges don’t refer to experts as much as US courts,
so the French standard would be closer to a necessity standard.
The court defines what the expert’s mission is. The parties will be heard and have an opportunity to make suggestions to the courts; however, essentially
the court calls the shots.
Expert will make factual enquiries (always respecting due process, cannot have communication with any one party; if there is communication with one
party, all parties have to put on notice and have an opportunity to participate)
Expert prepares draft report, then submits it.
There’s no cross-examination but parties can submit comments to draft report and expert take these into consideration (or not)
Note: at no point in this process are any fees being paid to experts by parties, so reinforces objectivity and impartiality
Final (non-binding on the judge) report is then issued
B. The typical common law approach
 The expert is appointed, hired, coached, and directly paid by the parties. He becomes a member of the team and elaborates a report in close
collaboration with the clients.
 Experts nevertheless are supposed to remain neutral and impartial. So, despite the close proximity with the clients and the lawyers, the experts actually
have to tell the truth.
 The trial starts with the qualification phase: parties call your expert on the stand and ask questions to establish his qualifications, in order to see if the court
accepts this expert as being properly qualified to give an opinion. Then the expert says what he has to say. Once he is done, the other party can challenge
him during cross-examination. At the end of the process, the judge is never bound by anything the expert has said.
o This means that the expert essentially recites everything that is in their (possibly very long) report – think about costs
 Common law courts can appoint experts on their own motion, but rarely use this prerogative. Most of the time, the parties call their own witness because it
is believed the litigants have the freedom to present their case as they wish. This is why the judge is more passive.
o US FRE 706 allows for court-appointed expert witnesses; however, US courts rarely appoint their own experts. US FRE 706 contains all sorts
of safeguards to allow for cross-examination of court-appointed experts; it also says that “Nothing in this rule limits the parties in calling expert
witnesses of their own selection.”
o Rule 52 of the Ontario Rules of Civil Procedure allows for court-appointed experts
c) Pros and Cons of Expert Evidence
George C. Harris, “Testimony for Sale” (2000)
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Harris argues that the common law model of party-appointed and -paid experts has too great a potential for distorting the truth. The sources of the distortion
are largely hidden from the adjudicator.
U.S. courts rely heavily on expert opinion. A California study found that experts testified in 86% of civil jury trials; on average, 3.8 experts were used in each
trial.
U.S. courts rarely appoint neutral experts, except when a particular judge is responsible for a series of similar, scientifically-complex cases (e.g., breast
implant litigation).
Lawyers are technically prohibited from making their payments to experts contingent on the substance of their testimony or the outcome of the case. But in
practice, experts are first approached as “consulting” experts, and they know that they will only be hired as “testifying” experts if their testimony supports the
party’s case.
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Discovery, cautions put to the jury and cross-examination are insufficient to correct for these distortions, because they don’t address the expert selection
process.
Harris proposes a reform which would avoid leaving expert selection in the hands of courts:
 Before a party could ask an expert for her or his opinion on any case-specific matter, it could identify that expert to the opposing party.
 Both parties would have equal access to any experts who were appointed, and experts would be encouraged to communicate among themselves and reach
a consensus.
 All communications with experts would be fully discoverable.

Strong, McCormick on Evidence, “Proposals for Improvement of the Practice Relating to Expert Testimony”, p. 533
 Common law countries employ the contentious or adversary system of trial, in which the opposing parties, not the judge as in other systems, have the
responsibility and initiative in finding and presenting proof.
 Two main weaknesses:
o The choice of experts is controlled by the parties, who are naturally interested in finding not the best scientist, but the best witness;
o The adversary method of eliciting scientific testimony is ill-suited to the dispassionate presentation of technical data  overemphasizes
conflicts
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Potential remedies and their critiques
o Solution to the first problem:
 Use of trial judges’ common law power to call experts
 Currently judges rarely do this because they were once litigators and the adversarial mode is deeply ingrained
 Establishing panels of impartial experts designated by groups in the appropriate fields from which panel courts appointed experts
would be selected
 Problem: that there is no such thing as an impartial expert. Even if there were, the courts lack the ability to identify and locate them.
 It could influence the jury because once it learns that one expert is the court’s expert, the jurors might leap to the conclusions
that they should accept her opinion.
o Solution to the second problem: court could require a conference of the experts – allows them to resolve their differences of view (may settle
the issue or at least narrow it
There are other problem areas with the existing system:
o 1) the unsuitability of the jury, a body of lay persons usually required to be unanimous, as a tribunal for assessing scientific evidence;
o 2) the rules of privileges;
o 3) the employment of legal standards of civil and criminal liability which do not accord to with the scientific standards which the experts are
accustomed to (e.g. “understanding of right and wrong” in test for legal sanity)
Anderson, “Proposals for Improvement of the Practice Relating to Expert Testimony”, p. 387
 R. v. D.D.: SCC acknowledges that a lack of expert independence can lead to a miscarriage of justice
 Two problems
o Expert dishonesty
o Adversarial attitudes and expectations  the structure of the system encourages experts to be partisan, even if not dishonest
 Belief that the truth will emerge where advocates of different positions compete, this belief is questionable  some say that advocates are only
“coincidentally engaged” in the search for truth
 Expert evidence is especially apt to undermine search for truth because it is outside the purview of juries and judges
 Difficulties of bringing science to the law (list of 4, p. 389)
 Mohan concerns about expert evidence (list of 7, p. 390)
 Suggestions:
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o
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o
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o
o
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o
o
Prospective expert witnesses should be educated about the proper role of experts (possibly even with training courses – Woolf Report)
 Duties of experts (list of 7, p. 393)
Rules of CP should include statements of overarching objectives – perhaps amend to say truth is the overarching objective
 Suggested duties (Woolf) (list of 4, p. 394)
Court-appointed experts? No, this is premature
Lawyers need to be reoriented so that their pre-eminent duty is to the court, not their client  should have to advice a prospective expert about
impartiality and have a good-faith basis for believing he is not biased or dishonest
Judges should endorse duties and responsibilities in Woolf
Judges should not be so delicate in dealing with biased or dishonest experts
Judges should award costs based on improper use of expert evidence, including use of biased experts
Bias should not only go to the weight given to expert evidence, but to its admissibility
Professional societies should promulgate these views – rein in dishonest experts
Which approach is best?
Pr. Bachand urges us to make up our minds about this. The appropriate way to do this, according to him, is by thinking of the objectives the law of evidence is
trying to achieve. The question thus becomes: what is the best system having in mind the search for truth, and what is the best one having in mind efficiency?
Search for truth
 In the civil law system, experts will be more neutral and objective than they are in the common law system because there are less incentives for distorting
the truth.
o Rebuttal: cross-examination is a way of safeguarding against this
 Counter rebuttal: cross-examination is costly, time-consuming, and bad for access to justice in that it favours the party with more
resources
o Rebuttal: unconscious bias of court-appointed experts (Anderson)
o Rebuttal: usurpation of the role of the trier of fact (Anderson)
 The disadvantage is that because there is no extensive cross-examination, there is a risk that mistakes made by experts will not be corrected as often as they
would be in a common law system – in practice, the opinion of the court-appointed expert is almost always followed
 A traditional critique of the judge appointed-system has been to say that the lay persons constituting the jury will give more weight to what the expert says
knowing he has been appointed by the court. This critique may stand in criminal law, but in civil litigation in a civilian tradition, there is no jury.
Therefore, this critique does not stand.
 In the common law, you can assume from the start the experts are not neutral because the incentives for perjury are too great. Then, the question is whether
you believe in the cross-examination as a powerful and effective process that it annuls the initial problems of proximity and impartiality. (Bachand does
not)
 Risk that court will not be presented with all the range of relevant opinion if it relies on a single expert
o Rebuttal: as long as the parties have the opportunity to attack the expert’s work, the court should be able to find out any problems with the
expert’s view
o Also, court can perhaps get a second or third opinion in cases where the stakes justify it
Costs and efficiency considerations
 We are tempted to say the civil say system is more efficient because there is only one expert appointed by the court. Practically, however, if the parties
have the resources, and if the issues at stake are important, the parties will have their own experts working in the background. Therefore, we cannot
assume the expert appointed by the court will be the only one working on the case. There is a potential of up to 3 (one for each party and one appointed by
the court) experts working on the case, as opposed to 2 in common law (one for each party).
 There have been complaints in France that experts appointed by the courts will not work as fast and efficiently. This issue can easily be addressed by
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having rules setting out the terms of reference of the expert.
From a common law perspective, there are concerns relating to costs and time, which obviously relate to the amount of control the parties have over the
trial. The risk of things getting out of hand is much greater.
Sross-examination is costly, time-consuming, and bad for access to justice in that it favours the party with more resources
In common law systems, the control the parties have on the trial extends to the cross-examination, that can be just as long and inefficient. For instance,
there is a commercial trial in Montreal that has been going on for 7 years. It is a very complex fraudulent bankruptcy case. One expert was cross-examined
for more than two years, and we can imagine the costs related to that. On the other hand, they did an anti-trust trial to Microsoft in 6 months.
Art 413.1 CCP : judge has power to ask or order party-appointed experts to help the court by narrowing the scope of disagreement and to consult in order
to get to a consensus.
In civil law, expert is not cross-examined, so it’s more efficient (cross-examination takes time).
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Middle-ground solutions
 A flexible approach: retain system of party-appointed expert, but give court power to order (at its discretion) that only one expert will intervene and to
control scope and costs of expertise (e.g. 35.7 of the English Rules, currently considered in Québec)
o Bachand: if the culture, history-bound English can do it, why can’t we?
 Eliminate examination-in-chief, limit cross-examination
o Note that the expert intervenes at two phases in the trial: first he files a written report, during trial he essentially reads it out verbatum
 Give courts power to order meeting between experts, to find common ground and narrow the issues (eg. 413.1 CCP, 35.,12 English Rules)
 Harris’s proposal: retain system of party-appointed expert, but increase transparency + access by opponent with a view to reducing bias/distortions
 See also Anderson’s suggestions re: problem of bias (in the readings)
o Be very clear to the experts about their duty, and make them sign a statement of impartiality
o Also make the expert’s role clear to lawyers
 Adopt the CVL system?
iv) Facts that Need Not Be Proven
The underlying assumption so far: conclusions re: adjudicative facts must be based on evidence adduced at trial (evidence relating either to material facts or
circumstantial facts)
But: adjudicators are allowed to rely on some types of information that were not proved nor debated at trial
 Exception to principe de la contradiction, which prohibits adjudicator from relying on information not submitted for debate at trial
o The principle exists to ensure that the parties have a chance to hear and contest all the evidence that is used to make a decision about their affair
We need to distinguish between two categories of such facts: (a) formally admitted facts and (b) reasonably incontestable facts of a general nature.
a. Formally Admitted Facts
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E.g. a person sued for $100 might admit he was at fault, but dispute the quantum
Court will not go into the process of finding fault
o In this case, the trial would only be about the quantum
o The judge WOULD make a formal finding of fault, based on the admission and not testing the accuracy of the finding (?)
In this case, efficiency considerations override the search for truth
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o
o
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The fact that judges are bound by the parties’ formal admissions reveals that – at least in civil matters – the State has no independent/superior
interest in establishing the true facts of the case
Judges often try to get parties to agree on as many points as possible before 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
As a general rule, adjudicators must base their decisions on the evidence that was actually adduced at trial and evidence that was thus subject to a debate
(principe de la contradiction). This idea of the parties being able to debate is paramount and seen as a basic and necessary requirement of procedural justice.
 Example: In the elevator, one judge says to another judge that a witness is a liar. This information acquired outside the courtroom should not be taken into
account. It would be unjust and unfair, and contradicts the principe de la contradiction.
 However, not Bombardier – if the parties saw the facts being gathered (at least in an administrative setting), they may not have the right to raise principe
de la contradiction
However, general facts that cannot reasonably be disputed are an exception to this rule
Consider Scenario 1: Very often judges decide which witness they are willing to believe. If the witness was incoherent, the judge can rely on the fact that people
who are incoherent are more likely to be lying, and as such not give so much weight to the testimony.
Consider Scenario 2: The case of the house that burnt done in Longeuil. The defendant claims he couldn’t have burned the house down because he was in the
Plateau an hour before the fire. But we know that you could get from the Plateau to Longeuil in less than an hour.
Why are such facts an exception to the rule?
a. Adjudication would not be possible if the principe de la contradiction was absolute.
i. For example, you would have to prove the meaning of words before judges could draw conclusions from statements made by witnesses!
ii. The analysis of evidence can only be made using general knowledge (common sense).
b. If a fact can’t reasonably be disputed, there’s no point in debating it at trial (even though no one has showed evidence supporting the
general fact, it can be relied upon).
i. The fact that it is possible to go from Le plateau to Longeuil in an hour or less cannot really be disputed.
Positive Law:
 Common law tradition: doctrine of judicial notice
o
201 USFRE: A judicially noticed fact must be one not subject to reasonable dispute in 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.
 Example of fact that is generally known within the territorial jurisdiction: In Montreal, it is known that you can get from the
Plateau to Longeuil in less than an hour
o However, can’t expect a B.C. judge to know whether it is possible to go from Le Plateau to Longeuil in an hour
 Examples of facts that are capable of accurate and ready determination: November 22, 1986 was a Saturday.
 Note that the judge CAN put a judicially noticed facts to the parties to debate (if there is any doubt), but he doesn’t HAVE TO
 Problems with stereotyping, etc., which may lead to injustice
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
Civil law tradition: doctrine of judicial notice unknown, per se, but result is nevertheless similar.
o
In the civil law, there is typically no formal recognition of the doctrine of judicial notice.
o
However, Bachand says this should not lead us to conclude civil law judges are not free to look at reasonably incontestable facts of a general
nature because adjudication is not possible without this power of the judge to look at facts that have not been debated at trial. This ability must
thus be considered a power inherent to adjudicators.
o
The issue of what we call judicial notice in common law has not attracted a lot of attention in civil law, but the few scholars who have thought
about it agree there is a functional equivalent in civil law: judges are able to use freely sufficiently un-debatable facts.
o
Even though the doctrine is not official, in reality the concrete result is the same.
o
Quebec is clearly a CML jurisdiction with respect to this area of the law; we have a doctrine of judicial notice. Although it seems that CCQ
2809 refers only to facts that are generally known within the territorial jurisdiction, it is poor drafting. It includes also facts that are capable of
accurate and ready determination.
CCQ 2806. No proof is required of a matter of which judicial notice shall be taken.
CCQ 2808. Judicial notice shall be taken of any fact that is so generally known that it cannot reasonably be
questioned.
US FRE R 201. Judicial Notice of Adjudicative Facts
(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
(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.
Example: In the Willick case, L’Heureux-Dubé writes it is crystal clear that she is taking judicial notice of two things: (1) significant levels of child poverty in
single parent families; and (2) court’s failure to contemplate hidden costs in their calculation of child support awards.
According to Bachand, this is an example where a judge got it wrong as to whether a fact is of general knowledge. The dissent amongst judges sitting on the
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bench shows people can disagree.
The following case illustrates that even once judge have decided to take judicial notice of some facts, the basic threshold of relevance nonetheless applies.
Judges cannot use that information just as they want to.
R.v.S. (R.D.) (SCC, 1997), p. 239
Facts: A white police officer arrested a black 15 year old who had allegedly interfered with the arrest of another youth. The police officer and the accused were the
only two witnesses and their accounts of the relevant events differ widely. The Youth Court Judge weighted the evidence and determined that the accused should be
acquitted. While delivering her oral reasons, the judge remarked that police officers:
 Have been known to mislead the court in the past
 Have been known to overact particularly with non-white groups, and that that would indicate a questionable state of mind
 This is in keeping with the prevalent attitude of the day
The Crown challenged these comments as raising reasonable apprehension of bias.
Note that the appeal was not put forward as engaging the doctrine of official notice  rather, it was presented as the judge “simply using her background, experience
and knowledge of social conditions to assist her in the analysis of the persons involved in the case.”
Issue: Did the judge’s remarks on racism amongst the police officers in Halifax raise a reasonable apprehension of bias? No (6/3)
Ratio
Major, Sopinka and Lamer (dissenting)
 The trial judge did made an error of law that is irreparable, and thus a new trial should be allowed.
 Trial judges have to base their decisions on the evidence before them.
 It was open to the appellant to introduce evidence that this police officer was racist and that racism motivated his actions or that he lied.
 This was not done. For the trial judge to infer that based on her general view of the police or society is an error of law.
 The trial judge’s comments give rise to a reasonable apprehension of bias. It seems that the trial judge was basing her comments on her life experience.
 Although of a great help in deciding cases, her life experience is not relevant in reaching conclusions for which there is no evidence. Her comment fall into
stereotyping the police officer; judges cannot assess credibility based on the irrelevant witness characteristics. All witnesses must be placed on equal footing
before the court.
Heureux Dubé and McLachlin
 There is no clear evidence of prejudgment required to sustain a reasonable apprehension of bias
 In alerting herself to the racial dynamics of the case, the judge was simply engaging in the process of contextualized judging, which is proper and conductive to
a fair and just resolution of the case before her
 The judge’s assertions just show she was attuned to the well-known racial dynamics that exist between cops and minorities
Cory and Iacobucci
 “On one hand, the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness
of a particular witness on the basis of such factors as testimony and demeanour”  “On the other hand, the judge must avoid judging the credibility of the
witness on the basis of generalizations or upon matters that were not in evidence”
 Can’t subject a particular category of people (e.g. cops) to an automatic characterization of credibility
 Even if racism is a given, there was no evidence to allow Judge Sparks to conclude that racism influenced this particular officer’s reactions
 The generalized remarks about a history of racial tension between police officers and visible minorities were not linked by the evidence of the actions of the
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police officer here. There are worrisome and close to the line. Yet, however troubling when read individually, they are not made in isolation and must be read in
the context of the whole proceeding, with an awareness to all the circumstances that a reasonable observer would be deemed to know.
A reasonable person would not conclude that they gave rise to a reasonable apprehension of bias or that they tainted the earlier findings of her credibility. The
high standard for a reasonable apprehension of bias has not been met.
Comments:
 The only evidence in the case is the irreconcilable evidence of the accused (kid) and the police officer that arrested him
 Note that both testimonies are direct evidence: don’t relate to circumstantial facts
 Judge believes the kid, finds him to be more credible
 Noting the piece of circumstantial fact that the accused was black, she takes judicial notice of the fact that there is racism in the Halifax police force – a
fact that was not proven at trial!
o Or did she? She actually mentioned this fact AFTER delivering her verdict while responding to a question – not clear whether this was a factor
in her verdict (though higher court judges treated it as though it was)
Two step process to test the legitimacy of a judicially noticed fact:
 Is the fact that there is racism in the Halifax police force sufficiently generally known in the area, or capable of ready and accurate
determination?
o Need someone from Halifax who can tell you
o Higher courts didn’t really dispute this
 Even assuming it is true, is the fact relevant?
o The judge could take judicial consideration of the fact that Mars is a planet, but that has no probative relationship to the question of what
occurred between the cop and the accused in this specific instance
o Similarly, there is an insufficient probative relationship between the general trend of racism and the specific considerations of this case
o Major: this is like assigning liability in a car accident entirely on the basis of the youth of one driver
o The problem was thus not the judicial notice of the fact, it was the use of the fact: to assess the particular cop’s credibility
In the present case, the court splits on the use the trial judge made of the fact.
 Major says stereotypes have no place in courtrooms. Even if the problem of racism is real, this fact should not have an impact on the witnesses’
credibility (cannot or should not take judicial notice of them?)
 Cory agrees with Major on the general principle that stereotypes should not have an impact of the credibility of witnesses. However, he is not sure what
the impact of the stereotype has been on the trial’s judge decision.
 McLachlin says it was not improper for the trial judge to take the fact into account because this is what contextualized reasoning is.
Just because a fact can be accepted under the doctrine of judicial notice does not mean that that same fact can be admitted into the adjudicative
process.
RDS should have been pleaded as a decision on relevance.
Here some judges say that the fact is to general to conclude that this cop had overreacted or was misleading the court. Others say this is modern adjudication that
takes into account social contexts  these are 2 fundamentally different methods of dealing with social contexts.
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B. INFORMATION RELATING TO NORMATIVE FACTS (INFORMATION RELATING TO THE CONTEXT OF LEGAL RULES)
Introduction to Normative Facts:
 Normative facts are information relating to the contents of legal rules. Normative facts are “facts” relied upon by adjudicators while drawing conclusions of
law
 When adjudicators make conclusions of law, they are not free to reach any conclusion that they deem to be fair. Adjudicators are constrained by special rules
– rules that tell you how to interpret the law.
 These rules are important, as it is important to avoid having interpretation being arbitrary.
Normative facts relate to the content of legal rules. We can distinguish (i) legislative facts, and (ii) formal legal sources.
i) Legislative Facts:
a. Legislative Facts as Distinguished from Adjudicative Facts
Adjudicators do not merely apply rules that exist “out there” and that have a pre-determined meaning. They also make law; they determine the meaning and
scope of rules. When doing so, they are not operating in a social vacuum; they are making law in a particular social context. Facts very different in nature from
adjudicative facts (who did what, where, when and why? OF THE PARTICULAR CASE and so on…) may then be resorted to in order to establish the meaning of
rules
Legislative facts are social facts (as opposed to formal sources of law) that are taken into consideration by adjudicators when they draw conclusions of law. They
are facts involved in decisions of policy or law.
 The term “legislative fact” is a common expression but Bachand does not think it accurately describes the category of information we are talking about
Legislative (socio-economic) facts that adjudicators rely on when they draw conclusions of law
 E.g.: empirical social data regarding court delays in criminal matters relied on by the Court in Askov while determining effect of S. 11b) of Charter
o Note that this had nothing to do with what happened in the case, but only on the effect of a Charter position
o The court has been heavily criticized for doing this
 E.g.: fact that that where the complainant and a juror are members of the same visible minority, racial bias can affect the fairness of a criminal trial (Spence)
 E.g.: in Willick [1994] 3 S.C.R. 670, i) fact that there are significant levels of poverty among children in single parent families; ii) fact that courts have
generally speaking failed to contemplate various hidden costs in their calculation of child support awards (reasons of Justice L’Heureux-Dubé)
o Is this going to far? L’H-D’s colleagues thought so!
In Common law, the prevailing view is that social facts fall in the ambit of the doctrine of judicial notice.
Civil law judges seem more reluctant to recognize their law making function.
The SCC recognizes that judges MUST rely on social context when interpreting rules:
 With respect to constitutional rules, the court said: “This Court has emphasized that close attention must be paid to the factual and social context in which an
impugned provision exists at each stage of the Charter’s s. 1 analysis”.
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With respect to the common law, the SCC said: “Judges can and should adapt the common law to reflect the changed social, moral and economic fabric of
the country” (Salituro, SCC 1991).
With respect to statutory rules, the contextual approach is preferred: “The words of an act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of parliament”. Includes consideration of social context.
b) Difficulties Regarding the Treatment of Legislative Facts in Adjudication
Key Question: how should these facts be treated in adjudication? Can/should judges be able to take judicial notice of such facts?
If so, this would mean that:
 Judges would be able to base legal conclusions on socio-economic facts within their personal knowledge (not such a problem, selon Bachand)
o Would be able to go and do research independently of what the parties brought to court, giving them a much more active role in the trial
 Judges would not have to give parties opportunity to challenge accuracy and impact of such facts on legal conclusions to be drawn (big problem, selon
Bachand)
o Judges could do their investigation and then NOT bring the information back to courts – leads to the possibility of serious muck-ups, as in
Askov
REQUIRMENT OF SUBMITTING TO THE PARTIES FOR COMMENT – Principe de la contradiction.
 Doesn’t the principe de la contradiction require – at the very least – that info relating to such legislative facts that was obtained independently by court,
be submitted to parties for comments?
 L’H-D answers at para. 51 of Willick: judges can – but do not have to – give parties opportunity to comment on such info when it is feasible
 Bachand asks: when is it not feasible?
 Bachand is bothered by the L’H-D decision and with social science info as with judicial notice in general.
 When judges are reaching conclusions of law and get it wrong, this could have potentially large consequences. Askov is the obvious example.
 If the facts were beyond reasonable dispute, then the parties should not be able to comment, as it would be useless to hear from the parties if the facts
are, in reality, accurate.
 However, we can all agree that not all social facts can be said to be beyond reasonable dispute. Thus, it is important to give the parties the
opportunity to respond to the factual propositions made by the court.
 As Askov and Spence make clear, facts about society are not always beyond reasonable dispute. Thus, there is a risk to litigants that the courts can get it
wrong; and, there is a risk to society as a whole that courts can get it wrong, as a decision can create injustices in future decisions.
Possible Solutions:
 Allow judges to go beyond what was invoked/relied upon by the parties at trial, but require that when results of independent inquiry by court are not
beyond reasonable dispute, parties be given the opportunity to comment.
 Bachand believes that it is essential that parties be given the opportunity to respond to inferences relating to social context.
 Since courts are supposed to be able to rule on the law, the judge ought to be allowed to bring information into the debate that was not
necessarily raised by the parties.
 Thus, if the judge sees that there is a relevant legislative fact, he should be allowed to explore it so as to increase the fairness to all parties
involved (as well as society as a whole).
 Spence, and the more cautious approach now adopted by the SCC.
 In this case, the SCC said that courts need to be careful when dealing with legislative facts.
 The SCC was not ready to come to the conclusion that, when a juror is a member of the same race as the victim, it will impact his ability to
render a fair decision.
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The SCC said in Spence that courts need to ask themselves whether the fact really is beyond reasonable debate. In addition, the SCC said that, when the
fact relates to the directly to the issue in question, the reliability of the legislative fact will be more heavily scrutinized. On the other hand, if the fact
relates to a background issue, the reliability test will be less stringent.
 Test from Spence: In dealing with “legislative” facts and “social” facts, greater scope may be given to judicial notice, but a court must
still ask itself whether the alleged fact would be accepted by reasonable people who have properly informed themselves on the topic as
not subject to 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 issue in question. [65]
Willick v. Willick [1994] 3 SCR 670 [P. 369]
Facts: the parties entered into a separation agreement, pursuant to which the respondent agreed to pay the appellant 450$ a month for each of their 2 children and
$700 per month spousal support. The appellant learned the respondent’s income has augmented. In November 1989 a divorce judgment was granted, incorporating
the support provisions of the separation agreement. Two years later, the appellant demanded an increase in the amount of child support. The chambers judge granted
the application, increasing the child support to 850$ per month. The Court of Appeal allowed the respondent’s appeal, holding that the conditions for a variation
order under s. 17(4) of the Divorce Act had not been met.
Issue: How should judges interpret the Divorce Act: with statutory rules of interpretation or extrinsic social evidence?
Held: With extrinsic social evidence. The appeal should be allowed.
Ratio:
Heureux-Dubé
 The task of statutory interpretation requires that the courts discover the intention of the parliament. The interpretation and application of family law requires
sensitivity to the social realities experienced by the most affected.
 The distinction between legislative facts and adjudicative facts demonstrates that law and society are inextricably interdependent, and that social facts
constitute an integral part of the lawmaking process. Where social data and research are relevant to the creation of a rule of law, they constitute part of the
authority on which the rule of law is founded. Therefore, the courts have the power and even the responsibility to actively inform themselves of authority that
will aid in evaluating the merits of the legal arguments before it and in ultimately reaching its legal conclusions.
 Even when a rule of law is not at issue, it has been recognized that social research can still greatly aid a court by illuminating the social framework in which
the facts of the particular case are to be adjudicated.
 The court must take judicial notice of two general facts, which are totally beyond dispute: 1) the significant level of poverty amongst children in
single parent families and 2) the failure of courts to contemplate hidden costs in their calculation of their calculation of child support awards.
Contemplation of these factors ensures the court’s decision will address and interpret the law placed within its social context.
 The ordinary rules of interpretation do not give adequate consideration to the degree to which a particular intervention is consistent with the Charter values.
 This interpretation leads the court to conclude that the objective of the Divorce Act is to recognize the former spouses’ joint financial obligation to the
children and to proportion that obligation between the former spouses according to their relative abilities.
 The court should thus calculate the appropriate quantum, under the Paras formula, by arriving at a sum which would be adequate to care for, support and
educate the children and then should divide the sum between the former spouses in proportion to their respective incomes and resources.
 “By the remarks above, I do not mean to say that a judge's power to take notice of social authority relevant to legal interpretation should be
untrammelled. I share my colleague's concern that this power be exercised prudently by judges and that, where feasible, the parties should be
accorded the opportunity to comment if the matter is susceptible to dispute” (Willick, par. 51)  BACHAND: WHEN IS IT NOT FEASIBLE?
Sopinka
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Sopinka reaches the same conclusion as L’Heureux Dubé but on the basis of the rules of statutory interpretation and without resort to extrinsic materials.
Sopinka does not disagree that a contextual approach to the interpretation of the statutory provisions is appropriate. However, he concludes that the intention
of the parliament is clear; given the narrow focus of the case, it does not require an intensive examination of the broad policy grounds to which Heureux-Dubé
refers. There is the risk that the legislature’s intention would be headed off by a benign interpretation, and the result would be to prevent the legislature from
exercising the full extent of its powers.
Comments:
 L’HD relies on the traditional CML presumption that legislative facts can be taken freely under judicial notice. Does this go too far? Is the evidence she
relies on really beyond reasonable contestation?
 The split in the court indicates the SCC’s willingness to reconsider the traditional assumption that all legislative facts fit into judicial notice – and so judges
are free to do whatever they want with it. Four of the seven judges refused to consider the use that can be made – as raised by L’Heureux-Dubé.
Basically, there is a debate on whether there should be a different /more rationalized process for the judicial reception of the social facts.
 Woolhander: No, the current system is better because it creates its own incentives for correction.
 Baar: Yes, because SCC obviously misuses social facts.
Woolhander; Rethinking the Judicial Reception of Legislative Facts [p. 537 C.B]
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Legislative facts are facts that inform courts on questions of law and policy (contrast with adjudicative facts, which are facts about “what parties did, what the
circumstances were, what the background conditions were”)
No federal rules for the reception of legislative facts – whereas in administrative process, the reception of legislative facts is regulated.
Reformists argue court should be more open on the reception of legislative facts
 Author’s point: The current method of receiving legislative facts is preferable to a more rationalized approach to judicial reception of legislative facts.
Reformers say that a more rationalized approach to judicial reception of legislative facts will lead to more judicial facts being used. Woolhander agrees, but
disagrees that this outcome is desirable. The current haphazard system for receiving legislative facts creates its own incentives for counter-presentations over time is
better.
Paradigms of legislative and adjudicative facts
 The paradigm of adjudicative fact is a description of the past, individual or mental phenomenon, the proof of which is the record. The retrospective and
discrete nature of the inquiry gives a sense that it is the true version of what has happened.
 A paradigmatic legislative fact is one that will show the general effect a rule will have and is presented to encourage the decision maker to make a particular
legal rule.
o E.g. “strict liability leads to efficient resource allocation”
 The key difference between adjudicative and legislative facts is not the characteristics of particular versus general facts, but between evidence whose proof
has a more established place and more predictable effect within a framework of established legal rules (adjudicative) as distinct from evidence that is more
manifestly designed to create rules (legislative)
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To the extent that non-pragmatic reasoning informs judicial decision making, legislative fact-finding is less important.
Even when pragmatism plays an important place in judicial decision making, the effect of a particular showing of legislative fact on a decision is inherently
unpredictable.
The very idea of legislative fact assumes that the legal rules are not formulated in advance, since the evidence is presented to assist the court in its normative
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function of making up such rules.
There is no special need to adopt formal procedures for the judicial reception of legislative facts because explicit judicial reliance on unbalanced information
created its own incentive for correction and it is unlikely that over time a constable scientific or social scientific study that is made the explicit basis of a
court’s decision will remain unchallenged.
The normative component of legislative fact-finding enhances the unpredictability of the effects of showings of legislative facts. This unpredictability
discourages attorneys from presenting legislative facts, which in turn discourages lawyers from formalizing procedures for their reception.
Formalizing the process of judicial reception of legislative facts will increase the hegemony of pragmatic balancing at the expense of other process of
judicial reasoning. Increasing the influence of pragmatic balancing in judicial decision-making will make the judicial process look more like the
legislative and administrative processes, which will undermine the legitimacy of the courts.
When the reformists claim that legitimacy will come from the increased accuracy of judicial decisions, they are claiming that science can neutrally answer
legal questions.
o But this argument fails because legislative facts, in their nature, are disputable. They cannot neutrally answer to legal questions.
Other claims rely on judicial fairness. This might be true if we consider that pragmatic balancing is the best way for courts to make a decision, but this needs
to be questioned.
o Maybe this will make courts too “poly-centric” – should the determination of whether to enforce a criminal anti-smoking ban be informed by issues of
air pollution, health, compliance machinery, etc.
o Doesn’t this imply courts are going too far into legislative/administrative territory?
According to Bachand, Woolhandler’s argument is strong if the legislative facts are always those that are beyond reasonable contestation – if they aren’t, then
two problems occur:
1. With justice or legitimacy seen from the perspective of the litigants, if the facts are reasonably disputable, they must be submitted to debate at trial, like
other types of facts, unless you believe that there is something specific about them which would make it improper for the “principe de la contradiction” to apply.
 Clearly, L’Heureux Dubé thinks this is the case. See para 51 in R v.DS: “I share my colleague’s concern that this power should be exercised prudently by
judges and that, where feasible, the parties should be accorded the opportunity to comment if the matter is susceptible to dispute”. According to her, when
it is not feasible to subject the social facts to debate, we should not do it. It is difficult to see a case where that would not be feasible.
 Binnie disagrees: “The concept of legislative facts does not provide an excuse to put before the court controversial evidence to the prejudice of the
opposing party without providing the opportunity for its truth to be tested.” – principe de la contradiction should matter in respect of legislative facts.”
[para 5]
 From the perspective of the litigants, the idea that judges ought to be completely free to do what they want is troubling – unless we can come up with a
convincing reason why the facts are such that the principe de contradiction should have no place.
2. Injustice may be more far reaching when judges reach an inaccurate conclusion on legislative facts since they will be used to create legal rules that will
continue to effect society into the future (through precedent – even in CVL).
 Courts are not merely dispute resolution services – serving private interests. Their decisions have a legal component. Conclusions of law are likely to
influence future disputes. It matters greatly that like cases be treated alike.
 Consider the case of Askov where the court’s misuse of social evidence led to 50,000 charges being dropped in Ontario. Despite the objection that we can
raise, much may be gained by getting rid of the idea that all legislative facts should fall under the ambit of judicial notice.
Baar; Criminal Court Delay and the Charter: The Use and Misuse of Social Facts in Judicial Policy Making [p.499]
Author argues that social science played a role in both Askov and Morin but was misused. This, according to him, calls for a more effective use of social facts.
Askov case:
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SCC rules Askov and his his co-accused were deprived of their right to trial within a reasonable time under section 11(b) of the Charter and ordered the
charges against them to be dismissed.
The SCC went beyond the facts in Askov, and beyond the materials proposed in the affidavits, to establish principles of law not necessary for the decision of
the immediate case and founded on incomplete and incorrect analysis of the material before it. Cory proceeds to spell out a number of months that might be
deemed to be the outside limit of what is reasonable: in range from 6 to 8 months.
The court referred to Montreal data which raises many problems, namely that the data was never presented at trial. The SCC took those figures and used them
to generate a constitutional standard without giving the parties to the case an opportunity to analyze them.
By doing its own research, the court missed the critical review of an effective adversary process could have provided. The court made insufficient need of the
process. Also, by devising a general formula, the court created a standard without evaluating its impact.
This decision caused thousands of withdrawals, resulting in more costs and delay. This became a public relations disaster for the judiciary in Canada.
Morin case
 Sopinka’s majority judgment reinforced some elements of the Askov case. It also made some modifications to it, the most important one being the extension
of the 6-8 months to an 8-10 months period.
 The case also presented the same mistakes as to the use of social facts, although it was not that obvious.
 Morin provided a guideline based on erroneous factual assumptions but also a degree of flexibility that is unnecessary and unwise. By the time the SCC
decided Morin, the damage from Askov was already done, in the sense that the large number of unforeseen dismissals had already occurred.
 Rather than clarifying Askov, Sopinka created an approach with so much flexibility that a principled approach for individual cases was lost
Conclusion:
3 lessons to take from those cases:
 Lesson 1: make full use of the adversary process  should have brought the parties and interveners back to argue for a fixing of a time limit
 Lesson 2: avoid dependence on the adversary process  experts should be able to be called upon directly by the courts, but any information from such an
expert should be subject to testing by all parties
 Lesson 3: develop practices and consider guidelines to increase the effectiveness of social science evidence in general and quantifiable data in particular
From perspective of the parties and societal interests at large, the principle of procedural fairness should apply in all cases where the legislative facts are not
beyond reasonable contestation.
 Woolhandler’s position that the causal relationship between legislative facts and outcome is so unpredictable that there is no use in regulating them is
not strong enough to overcome the need for procedural fairness.
 The traditional position is based on the CML belief that we should not tie judges’ hands to only what is presented at trial (like adjudicative facts).
However, the realist position is not that judges shouldn’t be allowed to consider these facts; it is that if they do, and when they are not beyond
reasonable contestation, it should be made clear to the parties what is being used and their should be opportunity for debate.
Concluding Remarks on Legislative Facts:
 Courts increasingly acknowledge the role of legislative facts in interpreting legislation.
 Tendency in common law jurisdiction to take for granted these facts falls in the category of judicial notice, but we still have to look at how these facts are
used.
 Some members of the SCC, and some commentators are staring to have doubts about the assumptions that the doctrine of judicial notice applies to all
legislative facts.
 Bachand thinks they have a point: we can be very critical about the treatment of legislative facts in the common law position, especially for the parties who
want to have an opportunity to refute the conclusions.
 In commonL, the process is party-law in the sense that the parties are responsible for seeking out and adducing evidence relating to legislative facts.
According to Bachand, it would not make any sense that the parties be in control of the handling of legislative facts because there is the rule that courts
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must get it right on legal rules; courts must always have the last word on what sort of information they will be take into account when interpreting rules. If
it were not the case, there would be a risk the parties would get it wrong because the parties have not done their job.
Courts must be able to go beyond those legal authorities, because ultimately, they are trying to figure out the meaning of the legal rules. Not to allow them
looking at other sources might be preventing them from taking the good decision.
Things are Changing
R v. Spence, [2005] 3 S.C.R. 458
Facts
 A black man was charged with robbing an East Indian man.
 At trial, defence was permitted to challenge potential jurors for cause on the basis of bias re: the accused’s race.
 However, the defence was disallowed from asking the following question to potential jurors: “Would your ability to judge the
evidence without bias…be affected by the fact that the accused person is a black man charged with robbing an East Indian
person?”
 The defence argued that it should have been permitted to ask this question because of the possibility of racial bias among jurors of
certain racial backgrounds (most notably, there was concern that jurors of the same racial background as the complainant might be
biased against the accused).
Issues
Did the TJ err? Should the Court take judicial notice of racial prejudice/partiality (particularly in cases where the jurors are of the
same racial background as the complainant)?
Holding
No. No.
Reasoning
Binnie J.
 Problems with judicial notice of what “everybody knows”
o It may be wrong
o Problem of trial fairness – where do these facts come from, and how may the parties address them?
o Courts can disagree on what “everybody know”
 While courts have taken judicial notice of racism, there is no similar consensus that “everybody knows” a juror of a particular
race is likely to favour a complainant or witness of the same race.
 “I believe the court ought to ask itself whether such “fact” would be accepted by people who have taken the trouble to inform
themselves on the topic as not being the 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.
 Here, this is an issue that is central to the case.
 Thus, Binnie applies the traditional test and concludes as follows: “I do not think…race-based sympathy for victims is so
notoriously correct as “not to be the subject of debate among reasonable persons”. Nor is it capable of immediate demonstration
by resort to “readily accessible sources of indisputable accuracy”.
 When the facts are “adjudicative” in nature and they do not satisfy the above test, the Court will simply not take judicial notice of
them.
 When the facts are “legislative” in nature (as in this case), the above test is not determinative. However, the test still has great
weight when the legislative facts approach the dispositive issue (as they do in this case, since taking judicial notice of racial
partiality would be dispositive of the appeal).
Ratio
A stricter approach to judicial notice is required where the (legislative) fact to be judicially noticed is central to the matter at hand.
Comments on Spence:
 Judicial notice does not necessarily extend to all legislative facts.
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Thus, if we’re talking about a legislative fact that is not the center of the case, but merely a background issue, then judges can be flexible and can
take judicial notice of these facts. But…the closer we get to the central issue of the case, the stricter we need to be about the requirements when
taking judicial notice. Must apply the traditional requirement whereby the fact must be beyond reasonable dispute.
Court uses a sliding scale – gets rid of the idea that judicial notice is only appropriate if the fact is beyond reasonable dispute
Compare with Askov – court adopts a middle ground position.
The important point is the evolution in the court's thinking:
 Increased importance on getting close to a unitary treatment of the doctrine of judicial notice irrespective of the nature of the fact at issue
 No more strict divide between adjudicative and legislative fact – which FB thinks is a good thing
Bachand: this is a positive development
 Courts have to be mindful and avoid what happened in Ascoff
 But they still have room to maneuver – not a strict test
ii) Formal legal Sources
See also Strong, “McCormick on Evidence”
a. Domestic Sources
General rule (same in both traditions): adjudicators are deemed (irrebuttable presumption) to know the contents of domestic rules (CVL phrasing), i.e.
rules in force in legal order in which they’re operating (including regulatory instruments of government agencies, etc.)
 Bachand: better to say deemed knowledge of domestic sources, rather than deemed knowledge of domestic rules
 Another way of putting this is that courts can – must, in fact – take judicial notice of the legal sources (CML phrasing)
o Parties don’t have to prove that the National Assembly passed such and such a law, or that the CA wrote X in a particular judgment
 Foreign legal sources (including Ontario legislation for Quebec judges) must be pleaded
Art. 2807 al 1 CCQ
S. 18 of the CEA
(see ss. 17-22)
“Judicial notice shall be taken of the law in force in Quebec.”
“Judicial notice shall be taken of all Acts of Parliament, public or private, without being specially pleaded.”
Two important implications:
1.
Parties don’t need to prove domestic rules/formal sources from which such rules arise; no point in devoting time/resources to proving domestic
sources.
2.
Expert opinions on points on domestic law are inadmissible. Since judges are deemed to know about domestic law, there is no point in having
others testify about it.
o If you accept the fiction that judges know the law, or at least are able to get the facts they need very easily, then it’s easy to understand why
expert opinion should never be necessary
o Caveat re: opinions by profs in civil law countries (not Quebec)
 CVL professors do not go in as EXPERTS, rather, they deliver ready-made doctrinal answers
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o
o
o
Can’t have Hogg in court commenting on the legal ramifications of the particular facts your case, but you can cite his books, or get him to
plead your case
Note that social science experts can intervene re: legislative facts; but jurists can’t offer opinion re: formal legal sources
Bachand: thinks it would be better to give the judge the power to appoint particular legal experts to deal with tough questions at his discretion
 Probably wouldn’t cost much, because profs would do it for free
Should experts be allowed to intervene and give their opinion on the law?
 In civil law jurisdictions, in France for instance, there are no limitations as to the experts.
 Bachand does not think the parties should be able to control the adducing of expert evidence.
 Yet, he recognized it would sometimes be profitable for the court to benefit from the opinion of an expert. Therefore, he advocates for a hybrid/ middle
ground approach whereby the court would be making the final decision as to whether the parties can bring in expert opinion on domestic law.
Advantages
 It would be profitable because in our system, judges being generalists and not specialists, the idea of a deemed knowledge is a fiction. Judges are first and
foremost expert of the legal reasoning. They do not, and cannot be expected to, know everything about everything.
 Such a system would work nicely because jurists (profs) would be pleased to help the court, and would probably do it pro bono. This would reduce the
efficiency and cost concerns.
 Another way would be that the court appoints an amicus curiae, i.e. someone who is not a party to the litigation but who believes that the court’s decision
may affect its interest. The problem then is that linking or teaching law might not or does not qualify as a sufficient interest.
Disadvantages
 Issues of equality and additional costs because a party with more financial resources will be able to make a stronger point.
 The French approach also leaves too much maneuver as to when and who to ask for an opinion.
 This is what we have the appeal process for; if the lower court makes a mistake in law, then the appeals court will remedy this mistake. According to this
argument, there are sufficient legal minds in the system, and there is no need for further experts.
Adjudicators are never bound to draw conclusions of law on the sole basis of the sources that the parties have specifically provided
 They are free to go beyond what the parties have invoked at trial. Their hands are not tied in the same way that they are in respect of adjudicative facts.
 What if during its deliberation the court finds a crucial precedent that the parties have not addressed in their pleadings? Should it be free to base its
decision on it, without giving an opportunity for parties to make relevant representations, or does the principe de la contradiction require that it lets the
parties know of that case first?

Legal jurisdictions answer differently to that question. Yet, the split is not tradition specific.
o Canada: There is no problem if the court relies on cases that have not been debated
o UK: House of Lords came to the opposite conclusion: the court should bring the precedent to the attention of the parties.
o Other common law traditions: They follow the Canadian approach
o France: Courts can base their decisions on sources the parties have not considered, but when they do so, they must ensure compliance with the
principe de la contradiction.
o Unidroit: Seems to follow the French position: R. 22.1. “The court is responsible for determining the correct legal basis for its decision, including
matters determined on the basis of foreign law. The court may rely on a legal basis not advanced by the parties only upon giving them opportunity
to comment

The basic idea seems to be that since people cannot contest the content of judicial reports, precedents are not reasonably disputable, and therefore can be
judicially noticed.
Problems with ignoring the principe de la contradiction with respect to legal sources:
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Bachand really thinks there is a problem with the assumption in Canada that courts can base their decisions on cases the parties have not considered.
o It might depend on the hierarchical position of the court. Maybe the SCC should always comply with the principe de la contradiction because its
decision may have large implications.
It may be perceived as an offense to natural justice to base a decision on a case that the parties have not had the chance to discuss. Having known the case,
maybe they would have tried to distinguish it.
The possibility of appeal does not solve the issue; it prolongs the case, involves more costs and then there is also the question of whether there is a question
of law; plus an appellate judge cannot take into account a case that was not taken into account by the lower judge.
Hoechong v. Cargil Hong Kong Ltd., (UK) decided by the privy council: court said that the parties should be given the opportunity to intervene when new
sources of law are introduced into the case:
o It does of course happen from time to time that a Court comes to learn of a statute or authority bearing importantly on an issue canvassed in
argument but through an oversight not then brought forward. The Court may wish to take the new matter into account. Before doing so it should
always ensure that the parties have an opportunity to deal with it, either by restoring the appeal for further oral argument, or at least by drawing
attention to the materials which have come to light and inviting written submissions upon them. The present case required even more meticulous
procedures, for what the Court introduced was not new material on the existing issue but an entirely new question of law and fact.
Dell:
o
o
o
o
o
o
o
o
o
o
Plaintiff wanted to sue Dell in Quebec courts
But the contract of sale had a clause forcing consumers to go to arbitration with Dell
The consumer argues the arbitration clause is ineffective because of 3149 of the CCQ
 A Québec authority also has jurisdiction to hear an action involving a consumer contract or a contract of employment if the consumer or
worker has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer or worker may not be set up against him.
The SCC gives to this article an entirely new interpretation that hadn’t been argued by any of the parties  said it only applied to disputes that have
some connection to a foreign legal order
On this basis, it says that the consumers do not have a case
However, the SCC COMPLETELY OVERLOOKED THE FACT THAT DELL’S HEAD OFFICE IS IN TORONTO
Every commentator said this was wrong – this is the prototypical foreign legal order case
Had the court properly applied 3149, the case would have been decided completely differently
Would have been so simple to avoid this mistake
Bachand: this case shows that the principe de la contradiction DOES matter, and should be heeded
Legislation
 Common law’s tradition position is that judicial notice was taken of public or general statutes but not of private enactments nor of subordinate legislation
such as in orders or regulations.
 However, there are now various statutory provisions intended to extend the doctrine of judicial notice to regulations because the traditional stance makes
less sense with the technological process that allows for indisputable accuracies and access
 For example, the Canada Evidence Act
Canada Evidence Act
17 – Judicial notice shall be taken of all acts of Imperial Parliament, of all ordinances made by the Governor in Council, or the lieutenant governor in council of
any province…in Canada and all acts of any such province …whether enacted before or after the passing of the Constitution Act 1867.
18 – Judicial notice shall be taken of all Acts of Parliament, public or private, without being especially pleaded.
19 – Every copy of any Act of parliament, public or private published by the Queen’s printer is evidence of that act and of its contents and every copy
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purporting to be published by the Queen’s printer shall be deemed to be so published unless the contrary is shown.
20 – Imperial proclamations, orders in council, treaties, orders, warrants, licenses, certificates…may be proved: (a) in the same manner as they may from time
to time be provable in any court in England, (b) by the production of a copy of the Canada Gazette (or another copy), (c) by the production of a cope of them by
the Queen’s printer…
22 – (1) Evidence of any proclamation, order, regulations…may be given in all or any of the following ways: (a) by production of a copy of the official gazette
for the province…, (b) by the production of a copy of the proclamation, etc. published by the government or the Queen’s Printer for the province, (c) by the
production of a copy or extract of the proclamation, etc. purporting to be certified to be true by the clerk of the executive council…(2) evidence of any
proclamation, etc. made by the Lieutenant Governor of territories may be given by a production of a copy of the Canada Gazette
 Very often, these provisions cause problems of interpretation. The split of the CSS in the Chandris case is illustrative of this difficulty.
R. v. Evgenia Chandris, [1977] 2 SCR 97 [p. 271]
Facts
Majority
Dissent
Comments
o
 C discharged pollutant into St John Harbor – charged with s. 5(b) of (Fed) Oil Pollution Prevention Regulations
 These regulations were not introduced formally as evidence at trial: the Crown counsel neither asked that judicial notice be taken of them nor
implied they had been published.
 The Crown now requests that judicial notice be taken of them.
 Trial Judge – could not take judicial notice and dismissed
 Court of Appeal upheld Trial Judge
De Grandpré J:
 Common ground is that regulations are statutory instruments
 S. 23(1) Statutory Instruments Act 1971 says that a statutory instrument that has been published in Canada Gazette shall be judicially noticed.
The rule of judicial notice is limited to those instruments which in fact had been published in the Gazette, but this fact needs no proof.
 This meaning is the result of Parliament’s decision to place on the same footing the statutory instruments published in the Canada Gazette and all
Acts of Canada public or private.
 Therefore, Canada Evidence Act and Statutory Instruments Act can be interpreted to allow judicial notice of statutory instruments.
 Notes that he does not understand, why as a matter of courtesy, counsel did not offer to the judge and to the defence a copy of the Regulations:
this would save the court a lot of time as judges are not really expected to keep statutes in their heads.
Laskin CJC:
 “The factual circumstances underlying this question are beyond belief.” Crown screwed up and doesn’t deserve indulgence.
 Judicial notice is obligatory with respect to all statutes (public or private) so not necessary to produce text to piece of legislation to court.
 However, this is not the case with respect to subordinate/delegated legislation like orders and regulations where there is no such mandatory
general provision with respect to judicial notice.
 In such cases it’s not enough that they be published; they actually have to be shown to the judge.
 Crown now relied on sec. 715 (2) of the criminal code, but this section only applies in criminal matters by way of certiori, habeas corpus,
mandamus and prohibition.
 Bachand agrees with dissent: thought it was unacceptable that the SCC’s resources would be wasted on a case like this, and that it would lead to
a split decision.
 This almost never happens in civil matters in practice; parties will agree on authenticity of a copy of a regulation, and then it becomes a formally
admitted fact.
From this case we learn that at common law, there is no judicial notice of delegated legislation.
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o
o
o
o
o
o
Judicial notice applies to statutes, constitutional texts, cases, but not delegated legislation.
Therefore, parties have to prove content of delegated legislation. This made sense because access to these documents was relatively difficult. This makes less
and less sense given that access to authoritative sources is very easy using internet.
Regardless, we would often see legislation that would extend the reach of the CML doctrine of judicial notice.
Although statutes now fill the gap, they doesn’t always do so very clearly…The fact that this case had to go to the SCC demonstrates this!
The statutes don’t indicate exactly what is necessary to prove the delegated regulation.
But statutes have now filled the gap – now extended to all things in the Canada Gazzette
In Québec, art 2807 CCQ provides that “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 […] shall be pleaded.”
The Judge’s Task as Law-Finder: Judicial Notice of the Law
McCormick on Evidence, §335 (p. 535)
The normal method of finding applicable law is by informal investigation of any sources satisfactory to the judge (i.e. brought by counsel or sought out by
judge). This process is described as the judge taking judicial notice of the law applicable to the case at hand.
Originally, when the source material was not accessible (as in the case of foreign law or city ordinances), these laws required formal proof
However, as these materials become more accessible, the tendency is toward permitting judges to rely on the diligence of counsel to provide the
necessary materials, and take judicial notice of ALL law
Domestic Law:
 Judge is required to take notice of domestic law (though if counsel has failed to call it to attention, a party may be precluded on appeal to complain that
the judge has failed to notice a statute).
 In the US context, when a required pleading and proof of the foreign law (i.e. other states) has been overlooked, the danger of injustice is mitigated by
the presumption that the law of the sister state is the same as the local law.
 A party who intends to raise a legal issue of a sister state should give notice of intention to do so, and the court determines the tenor of what actually will
be noticed about the sister state’s law, and the court may go beyond the materials furnished it by the parties.
Law of Foreign Countries
 At common law, foreign law was treated as a matter of fact: Pleading and proof were required, and the jury decided what the foreign law was. Proving
foreign law was accomplished by taking the testimony in person, or by deposition of an expert in the foreign law. This process maximizes expense and
delay and hardly seems best calculated to ensure a correct decision by our judges on questions of foreign law.
 The reason for conceiving foreign law as a fact that needed to be proved is rooted in the fact that sources of extranational law were not easily accessible.
 Courts are often unwilling to take notice of foreign laws. These creates three possible results:
o Court may decide an issue against a party for failure of proof.
o Court may apply the local law on the ground that no other law is before it.
o Court may presume law of the other country is the same as the local law.
International and Maritime Law
 The rules, principles and traditions of international law will be noticed in Federal and state courts. Maritime law is subject to judicial notice insofar as
those rules have become part of the general maritime law.
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
The presumption of identify of foreign law with local law has been narrowly restricted in the maritime field.
The Future of Judicial Notice of Law
 As all law, including the law of foreign countries, becomes more accessible, judges have tended to assume the duty to rule on the tenor of all
law, and the notion that this is part of the process of judicial notice has become anachronistic.
 Evidence involves proof of facts. How the law is fed into the judicial machine is more appropriately conceived as pertaining to procedure.
b. Foreign Legal Sources
These are bodies of rules emanating from legal order different than the one in which adjudicator is sitting – conflict of law rules arise. To what extent are foreign
sources objects of proof? This is considered from two perspectives.
(1)
When foreign law (body of law from outside the jurisdiction in which the adjudicator is sitting) is applied to the substance of the dispute
(2)
When foreign/transnational sources are used to interpret domestic rules
1. When foreign law is applicable to the substance of the dispute
Key Idea: Adjudicator is not deemed to know the content of foreign rules, so they need to be proved, i.e. they are treated like adjudicative facts.
However the analogy must be nuanced.
 Exception: Your opponent may formally admit the content of French rules, there is no need to have a debate about the content of the foreign rule at
issue.
 Exception: When the content of the foreign law is beyond reasonable dispute.
o E.g. Law in Ontario or Alberta might be beyond dispute for a judge in Quebec.
o E.g. The fact that there is a Bill of Rights in US constitutional law.
o Can try to invoke process of judicial notice in such cases.
Thus, there is a rapprochement made between adjudicative facts and foreign law. This rapprochement needs to be nuanced by looking at three points:
i. Who is responsible for proving the content of foreign rules?
ii. What if the content of foreign rules is not proved?
iii. How is the content of foreign rules to be proved?
i. Who is responsible for proving the content of foreign rules?
 Legal systems disagree on the question of who is primarily responsible for adducing evidence on foreign law at trial.
 If you consider that judges do not have a duty to get it right, then it seems fair to conclude that public policy is not concerned if courts get it wrong on
issues of foreign law. This comes down to saying that the rules of conflict of law are permissible and not mandatory.
 If, on the other hand, you consider that courts do have such a duty, then it means they can go beyond what the parties adduce as evidence.
 There is no one common answer given to this question. There is no typical civil law answer to it, and there is no typical common law answer either. The
split is not tradition specific.
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
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In French civil law, in certain circumstances, namely when rules of conflicts of law are involved, courts have an independent duty to seek out and
make sure the parties’ conclusions on foreign law will be right and make sense. Judges lead the reins, not the parties.
In US law, there are precedents saying the same thing as the Cour de cassation, i.e. that American judges sometimes have a duty to get it right with
respect to foreign law.
In Canadian law, judges have no duty to get it right on questions of foreign law.
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In Québec – see below
Art 2809 CCQ: “Judicial notice may be taken of the law of other provinces or territories of Canada and 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.”
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It is an obscure provision according to Bachand
It seems to support that Quebec judges may have an independent duty to get it right on foreign law, because if the judge is not satisfied
by what the parties have said, he has the power, and maybe the duty, to require that better proof be made of foreign legal rules.
o Whether we can conclude the Quebec judge has a duty to get it right, just like for domestic law, is arguable.
Whether foreign law applies is for the parties to decide. If they don’t invoke it or raise it, the judge will not be concerned by it. But the minute
they decide to rely on it, then it may be that judges will have a duty to get it right on that law.
Bachand: “may require” means (or should mean) “shall require” where the law is complicated
Bachand: we should be able to expand judicial notice to foreign laws as long as they are beyond reasonable dispute
[Private international law parenthesis: When the legislator is telling us that to be applicable, the foreign law needs to be pleaded, the legislator is telling us there
is no one single rule of conflict of law in Québec which is mandatory.]
Which is the most convincing approach?
 To think of that question, we must think of the possible justifications for the thesis according to which the judge has a duty to get it right.
 It can be argued that otherwise the parties would manipulate the rules of foreign law to their advantage.
 An argument on comity could be made. Comity essentially alludes to the respect that is due by one sovereign state to the public acts of another foreign
state. It can apply to judicial acts (recognizing and enforcing judicial decisions) or legislative facts. Could we make an argument that when the courts do not
pay attention to the content of foreign rules, it violates the principle of comity?
 This is especially true when the rules are characterized as mandatory in the other legal order.
 The duty could be implemented by obliging the parties to go get more information, which would solve the efficiency concerns.
 The duty to get it right would not be a duty to get it absolutely right. The court would have to be able to make reasonable conclusions.
ii. What if the content of foreign rules has not been proved?
 What happens when a party who invokes the benefit of the rule fails to prove its content?
 Consider what happens when a party fails to prove an adjudicative fact – the conclusion the court draws is that the fact does not exist. So, if we follow the
initial rapprochement, in cases of failure of proof, is the court to conclude there is simply no foreign law that regulates the situation?
 In Québec, the answer is in 2809, 2nd para: the court applies the law in force in Quebec
 This is a rule of quasi-universal application. All jurisdictions now tend to deal with this issue the same way.
iii. How is the content of foreign rules to be proved?
If the rapprochement were perfect, in common law, foreign law would always be proved with recourse to party appointed experts and court appointed experts in
civil law. Yet, this is not the case. The tendency to recourse to experts with respect to foreign law is less frequent.


Party appointed experts are still used in UK.
In USA, the tendency before federal courts is to resort to statements written by experts who will not be testifying and who will not be cross examined. This
is the party appointed experts model in a more effective way.
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In France, you proceed by way of written statements made by experts hired by the parties, and not by the court.
In Germany, the court appoints the experts.
In Québec, until the new CCQ was adopted, parties had their own experts. Then, art. 2809 opened the door to alternative means of proving the contents of
foreign rules. The court may require the content of foreign law to be proved, and this can be done either by expert testimony or by the production of a
certificate drawn up by a jurisconsult. According to Bachand, it is clear the National Assembly wanted to open the law to written experts without having to
go through the process of cross-examination.
o As a matter of practice, however, chances are the parties will have hired their own experts, who will testify, and then be cross-examined. So, the
way things are done is still influenced by the way things are done in common law.

Think about whether it is necessary to hear experts in order to prove the content of foreign law. There are two questions that arise from this:
o 1) Does it make sense to allow parties to hire their own experts? (we go back to our initial debate on the use of expert evidence);
o 2) Then, you can ask yourself what should be the involvement of the expert: should it be limited to written statements only or should they go
through the cross examination?
Bachand likes the American model. And according to him, the fact that they got rid of cross examination shows that it might not be so great as they say.
You need a written report, this is for sure.
However, there is no need for experts to come in and testify in chief because they just repeat what is in the report. So, Bachand thinks we could get rid of
the examination in chief in common law. The tougher question is whether Americans are right to get rid of cross examination as well:
o Reports will conflict, this is for sure. But is cross examination the appropriate way to deal with this?
o Dealing away with cross-examination does not mean the judge becomes entirely passive.
o Other issue- when the judge does independent research, should he submit the information to the parties if he wants to use it in his decision?
Taking judicial notice of foreign law might be far fetched because it is not undisputable, and therefore should be submitted to the débat
contradictoire.
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We assume pretty much everywhere that experts are needed, but do we really need experts in order for judge to draw conclusions on foreign law?
According to Bachand, we are wrong to assume the threshold of necessity will be met. The first question the courts should be concerned with is whether the
Mohan necessity test is met. In practice, parties will assume so, but it might be enough to go get the information online or in text books in the library. We
should challenge the assumption that experts are always necessary.
o Maybe as a first step, the parties should submit the basic information to the judge, and then he should be the one deciding whether experts are
needed.
2. When foreign law or transnational sources are resorted to while interpreting domestic rules
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In some cases, foreign sources can be resorted to not because they govern the substance of the dispute but because they are deemed to be important in
assessing the content of the domestic legal rules. Judges take foreign law or transnational sources into consideration when interpreting domestic law.
Increasingly, courts turn to foreign/international sources and rules to interpret domestic rules, especially in CML jurisdictions (Ordon, GreCon)
o Happens a lot in Charter cases, maritime law, etc.
o Orden Estate (maritime law case) – how should the courts adapt Canadian common law to meet the requirements of the international law
community?
In international law, there is an interpretative rule according to which Canadian domestic law is presumed to be compatible with its international
obligations.
o Practically, this means that when many possible interpretations can be given on a matter covered by a treaty to which Canada is a party, judges
should make sure the domestic law of Canada will comply with its international obligations.
o In order to do this, they must turn to other international sources.
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Because interpretation of domestic rules is ultimately at issue, courts have a duty to get it right when they rely on international context they are asked to
take into consideration (GreCon)
o So: they must be able to go beyond materials submitted by the parties if need arises
o In GreCon, the SCC was interpreting provisions of the CCQ concerning election of forum clauses. It said not only should judges make sure the
interpretation of domestic rules is as much as possible compatible with Canada’s treaty obligations, they actually must make domestic law
consistent with Canada’s international obligations. It makes it look as if judges were under an absolute duty to ensure the compliance of
domestic rules to international obligations.
But as contents of such sources/rules are not always beyond reasonable dispute, courts should strive to respect the principe de la contradiction when they
independently research the relevant international context
Ordon Estate v. Grail, [1998] 3 R.C.S. 437 [p. 251 C.B.]
The entire purpose of this case seems to be the fact that Canadian courts will draw on international law when deciding what to do about
Canadian law  make it fit with the international legal community
Facts:
 Ordon drowned when owner and operator of boat (Grail) sank it. Ordon’s widow brought claims for damages – this included a claim for compensation for loss
of guidance, care and companionship. Deceased's two children and his mother made similar claims.
 The plaintiffs made their claim under provincial statutes because the Canada Shipping Act recognized that dependents could claim in fatal boating accidents,
but made no reference to what those claims could be and whether they could support a claim for loss of guidance, etc.
 The defendants took the position that the provincial statues do not form part of Canadian maritime law, and that all of the plaintiffs' claims should have been
brought pursuant to the Canada Shipping Act which had a time bar and did not recognize all of the different claims made.
Issue: Whether and how the provisions of a provincial statute may function to determine legal issues that arise as part of a negligence claim otherwise governed by
federal maritime law?
Decision:
Four parts test for determining when a provincial statute can be applied in as part of a maritime law negligence claim:
(a) Step one: Identifying the matter at issue = is the subject matter at issue within the exclusive federal legislative competence over navigation and shipping under
s. 91 (10) of the Constitution Act?
(b) Step two: if step 1 is satisfied, reviewing maritime law sources = is it necessary for the party who relies upon the provincial statute to do so? Is there a
counterpart to the statutory provision upon which the party seeks to rely in Canadian maritime law?
(c) Step three: considering the possibility of reform = if the existing maritime law does not contain a counterpart to the (provincial) provision sought to be relied
upon, the court should engage in a pre-constitutional analysis in order to determine whether or not it is appropriate for Canadian non-statutory maritime law to be
altered in accordance with the principles for judicial reform of the law.
 In the present case, there is no gap that would allow for the application of provincial law. The common law principles remain applicable in the absence of
federal legislation.
 The 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.
 The court should also be careful to ensure it considers the fabric of the broader international community of maritime states, including the desirability
of achieving uniformity between jurisdictions in maritime law matters.
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
The court must also consider the effect of a the change upon Canada’s treaty obligations and international relations, as well as upon the state of
maritime law.
(d) Step four: constitutional analysis = if judicial reform is inappropriate, is the particular statutory provision applicable within the context of maritime law claim?
Are the provisions of the Ontario Act applicable?
 At common law, a person injured in a boating accident can sue for damages for his or her own injuries, but the dependants of the injured person are generally
permitted to recover only in limited circumstances.
 The common law rules should be judicially reformed to allow claims for damages for loss of guidance, care and companionship and to allow such claims to be
brought by dependants of a person injured but not killed in a boating accident.
 Changing the definition of “damages’ within the context of maritime accident claims is required to keep non statutory maritime law in step with modern
understandings of fairness and justice, as well as the dynamic and evolving fabric of our society.
Achieving uniformity of maritime law is an important objective and in order to achieve this, judges must look at what is done in other jurisdictions.
The question of course is what are we to do with these sources? So far, we have seen two possible approaches:
 Ignorant judge: the judge does not know anything about foreign normative facts and should not enquire on their own. Therefore, the ascertainment of
foreign normative facts should be party-led. This way, the basic procedural fairness requirements are met (principe de la contradiction is respected).

Learned judge: under this approach, foreign normative facts are treated as most domestic normative facts and do not require to be “proved” the way
disputed adjudicative facts are. Judges would be expected to either have knowledge of such facts or at least be able to ascertain them in a reliable manner,
and would be free to rely on information other than that which was adduced by the parties and debated at trial.

Maybe there is an alternative (see Bachand’s optional text)
o Canada: In Canada, the SCC has never dealt with this issue but seems to have adopted the learned judge approach, i.e. it is acting as if it had
the power to do whatever it wanted with these sources. The SCC will very often engage in comparative law discussions in its decisions and it
will not feel any obligation to submit the information it has obtained to the parties as the principe de la contradiction would require.
o The ultimate objective of the inquiry is to determine what the domestic rules have to say, so judges should always stay in control of the process
of acquiring the information. Since judges have a duty to get it right, regard must be given the power to go beyond what the parties have
adduced. This is a key component of the analysis of conflicts of law as mandatory and not permissible.
o Then, there is the argument that there is no need for the judges to be too concerned about the opportunity of parties to discuss new information
because they have been given a fair notice that this was going to happen. Bachand does not think this is convincing.
o The main problem with this approach is that it overlooks a significant difference between domestic law and foreign law, namely that domestic
law is not reasonably disputable. Therefore, there is little problem in letting a judge determine freely the contents of a rule that is exclusively
influenced by domestic normative facts. But that is not the case for foreign normative facts. Therefore, judges should not be free to consider
them if the parties have not had a sufficient opportunity to provide comments and arguments on them.
F. Bachand, “The proof of foreign normative facts which influence domestic rules”
To speak of the proof of foreign normative facts seems appropriate at first glance, given the widely accepted view that legal sources fall within the ambit of the
law of evidence. On second thought, however, it may make more sense to abandon the concept of “proof” in this context in order to clearly emphasize the
theoretical distinction between the ascertainment of adjudicative facts and the ascertainment of facts that influence the contents of the applicable rules. Arguably,
the latter ought to be thought of as relating to legal interpretation rather than to the law of evidence.
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TWO UNSATISFACTORY APPROACHES TO HANDLING FOREIGN NORMATIVE FACTS IN ADJUDICATIVE PROCEEDINGS
A. The ignorant judge
The “ignorant judge” approach rests on two basic ideas.
 The first is that judges have no knowledge—and cannot be expected to have any knowledge—of foreign normative facts.
 The second is that judges should not enquire about such facts on their own. Rather, the ascertainment of foreign normative facts should be party-led and judges
should, as a general rule, be bound by the parties’ initiatives; they should normally limit themselves to drawing conclusions from information adduced by the
parties.
Treating foreign rules as facts has one important advantage: by limiting the judge’s role to drawing conclusions from information that has been adduced by the
parties, compliance with basic requirements of procedural fairness is ensured (i.e. the principe de la contradiction will be fulfilled).
However, there is a problem: there is still the idea that judges should always remain firmly in control of the interpretation of domestic rules. Considering this idea,
it is unacceptable that their conclusions concerning the contents of foreign normative facts which may influence domestic rules, be exclusively based on
information adduced by the parties.
B. The learned judge
A second approach treats such facts in the same manner as most domestic normative facts falling within the ambit of traditional sources of law and does not
require them to be “proved” the way disputed adjudicative facts are. Under this second approach, judges would be expected to either have knowledge of such facts
or at least be able to ascertain them in a reliable manner. Judges would also be free to rely on information other than that which was adduced by the parties and
debated at trial.
 The main problem with this approach is that the principe du contradictoire only applies to facts which are not reasonably disputable – and foreign normative
facts ARE reasonably disputable. Therefore, judges should not be free to consider them if the parties have not had a sufficient opportunity to provide comments
and arguments on them.
AN ALTERNATIVE APPROACH: JUDICIAL AUTONOMY, PROCEDURAL FAIRNESS, AND EFFICIENT EXPERT ASSISTANCE
Assessing the need for expert assistance
 Resort to expert assistance will not always be needed because the additional expenses and delays will only be justified when such assistance is necessary, not
when it is merely helpful (R. v. Mohan)
 While assessing the need to resort to expert in the context of foreign law, two propositions must be considered:
1. First, it would make little sense to think in terms of the conclusions that could be drawn by ordinary people, law being a specialized field. The analysis must
be contextualized and necessity must be thought of in terms of what ordinary judges are likely or unlikely to accomplish without resorting to expert
assistance.
2. Second, consideration must be given to the fact that judges are themselves experts at legal interpretation, which involves drawing conclusions from normative
facts. Consequently, expert assistance should normally be necessary only in connection with the ascertainment of the foreign normative facts per se.
Role of party autonomy
 Due to the influence of the adversarial model, which heavily emphasizes party autonomy in the control and conduct of adjudication, judges should, as a general
rule, uphold an agreement of the parties requesting the intervention of one or several experts.
 If no such agreement has been reached, however, judges should raise proprio motu the issue of whether expert assistance will be needed, seek the parties’ views,
and then decide whether they will likely reach correct conclusions on the sole basis of readily available material and literature.
 Furthermore, because judges must always remain in control in order to uphold their fundamental duty to determine the contents of domestic rules, they should
never consider themselves bound by an agreement of the parties that seeks to exclude expert assistance, a result that will likely occur under a classic conflict of
laws scenario
The judge’s role in handling expert evidence
 Resort to party-appointed experts will initially always be possible. Consequently, judges should start by consulting the parties and enquire about their intentions.
 Judges should bear in mind that resorting to full-fledged, party-appointed testimony may not be desirable because the input of a single expert or the use of
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written expert statements may be sufficient and thus much more cost-effective.
Final Conclusions: Bachand’s view
 Because interpretation of domestic rules is ultimately at issue, courts have a duty to get it right when they rely on international context they are asked to
take into consideration
o So: they must be able to go beyond materials submitted by the parties if need arises

But as contents of such sources/rules are not always beyond reasonable dispute, courts should strive to respect the principe de la contradiction when
they independently research the relevant international context
II. What are the role and responsibilities of the adjudicator and the parties in the factfinding process?
We will now be concerned with the issue of HOW adjudicators actually acquire the information the fact-finding process is concerned with, i.e. the question of
whether or not the judge should have an active role. We will be focusing on adjudicative facts, especially those that are reasonably disputable and that do not fall
under the doctrine of judicial notice.
Why? We’ve seen how judge deals with other kinds:
 We’ve seen how judges have reacted with those that are within ambit of doctrine of judicial notice – we know judges here are active and can base decision
on undisputed facts even if parties haven’t invoked them
 We’ve seen with regard to domestic legal sources judges must be allowed to go beyond (because we expect them to “get it right” on points of domestic law)
 We’ve seen with regard to legislative facts, that legislative facts have a bearing on legal conclusions so judges again must be free to go beyond what parties
brought to court
This issue can be looked at from two different perspectives:
A) The adjudicator’s role vis à vis the parties
B) The parties’ role vis-à-vis each other: the burden of proof
Unidroit principles:
UNIDROIT
Introduction
Globalization having both positive (increasing international trade) and negative effects (more social friction and legal controversy) –
effort to reduce differences among the legal systems to alleviate negatives (costs, distress, etc.) through harmonization and
approximation. Procedural law having a less successful time achieving these goals. Trying to achieve what took place with the USFRE
through rules of transnational civil procedure for the adjudication of disputes arising from international commercial transactions.
P.16 – Access to Information and Evidence – parties and court have access to evidence and the right to cross-examine and have to
produce evidence if asked by the court…eliciting testimony should proceed as is customary in the law of the forum…court should make
free evaluation of the evidence and attach no special significance to it according to its type or source…
P.22 – Responsibilities for Determination of Law and Fact – court is responsible for determining the correct legal basis for its decisions,
including matters decided on the basis of foreign law (see p.17)…
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R.18 – Case Management – “active management” at all stages of litigation to further due administration of justice…the court may order
the production of evidence or depositions by any person subject to its authority…to facilitate efficient determination of a dispute, the
court may take evidence at another location or delegate the taking of evidence to another court of the forum state or another
state…(wide discretion in interim and final phases
R.26 – Expert Evidence – court must appoint an expert (either neutral or agreed upon) when required by law…and give orders to expert
as to the subject to be addressed…a party may designate an expert or panel of experts on any issue…(adopting the CVL rule…court
doesn’t have to follow the expert’s advice…can examine the expert orally in court or demand a written report)
R.28 – Reception and Effect of Evidence – each party has the burden of proof as to issues constituting an element of that party’s
case…court must determine factual issues according to principles of free evaluation under standards of proof of forum law…court can
order reception of any relevant evidence…may on it own motion or motion of party exclude evidence (if irrelevant or redundant)…court
can draw an adverse inference (i.e.: when witness fails to testify).
R.29 – Concentrated Final Hearing – the final hearing must be before the judges or judges who are to render judgment…evidence that
is written has to be presented only if has been disclosed to the other party and have to know who witness is and substance of the
contemplated testimony…witness can be questioned by judge or party then the other party gets to question…(adopts CML approach
because witness can be called on to testify or can call on yourself to testify (whereas in CVL less weight is given to party appointed
witnesses)…more active role of the court in the civilian system…can question the credibility of regular or expert testimony
A) THE ADJUDICATOR’S ROLE VIS-À-VIE THE PARTIES
i) The Common Law Tradition: Adversarial Model
Adjudication in CML typically follows an adversarial model. This alludes to the idea that the adjudicator must remain a passive player in the battle between the
parties. Under this type of adjudication, the concern is serving the private interests of the parties involved rather than public interest.
In the common law adversarial model, the judge can be said to be passive in two ways:
(1) He plays no role in the conduct or management of the proceedings. It is the responsibility of the parties to move the case forward.
(2) The information on the basis of which conclusions on adjudicative facts will be drawn is to be chosen and adduced by the parties themselves.
 It is the parties’ fundamental right to tell their story as they see fit (subject to admissibility, of course). The parties are controlling the evidence which will
be brought to court, they are examining the witnesses., they are the ones hiring the experts and asking them questions…
a. Historical perspective
Ascertainment of truth is what really underlies this choice made in the common law tradition.
 However, this is ironic because the model gained acceptance for reasons that have nothing to do with the ascertainment of truth!
 Originally, the adversarial model was essentially a bi-product of the jury system.
 It was thought better to let lay persons decide issues of fact.
 But it made no sense to have lay people actively intervening in the trial.
 In the alternative, judges could have been given a more active role.
 Yet, there was the risk of unduly influencing the jury.
 In order to prevent that risk from concretizing, the common law adopted the adversarial model in which the parties are active (not the
judge nor the jury).
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b. Contemporary views
There is now a clear trend in the common law towards greater involvement of the judge.
 This shift away from the classic passive role of the judge is due to the fact that use the model of the passive judge is increasingly seen as being a
significant cause – if not the most significant cause – of the inefficiencies of the common law system.
 This has not been such a fundamental shift so as to allow us to say that the court is now the principal actor. However, there are various examples of an
ever-growing intervention of the judge. Here are some examples:
o Courts have the power to appoint experts on their own motion (Rule 52 of the Ontario Rules of Civil Procedure)
o
Can – but only to some extent – examine witnesses (see Brouillard, where a judge went too far)
 Rule 614 FRE: The court can call and examine witnesses
 People who oppose an active role for judges often do so because they are concerned about bias and the appearance of bias
 Brouillard – clear that the judge went too far
 Asked far more questions to the witness than the lawyer had
 Very rude, sarcastic
 Even defenders of the active judge role generally argue that the judges should only ask a few supplementary questions at the end of
the lawyers’ own questioning (so as not to interrupt the lawyer’s presentation), just to fill in gaps in the record
o
Can encourage admissions in pre-trial conferences (case management)
 This judge can’t control what the parties do (unlike the trial judge), but he can get the parties talking and try to encourage them to
reach agreement
 E.g. if a lawyer wants to bring in 25 witnesses, the judge might suggest they only bring 5, but he cannot force the lawyer to
do so
 In practice, however, this soft power is very effective – if a judge says “this is ridiculous”, lawyers will listen (might be worried about
adverse cost orders, for example)
o
Power (rarely used) to order bifurcation (splitting of trial)
 See e.g. Simioni v. Simioni, [2009] Q.J. No. 174 (Ont. S.C.J.)
 Only available at the request of the parties
o
An interesting development in England (not in Canada): the judge’s power to “control the evidence” (r. 32.1 civ. pro. rules)
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
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
 This is a huge departure from the parties’ traditional right to manage the trial as they chose
 It is a recognition of the failure of the purely passive judge to manage the balance between the search for truth and the need for
efficiency
 Rule 32.1 has not caused a revolution – yet. Judges have the power but have not used it widely
 Bachand: This provision was adopted as part of the reform of civil procedure. It has the potential of reforming the common law
tradition; but the tradition being so strong, it might be that judges will read it down.
o
(And keep in mind the English judge’s power to order that only one expert will intervene)
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Brouillard v. The Queen [SCC, 1985] [p. 55]
Facts:
 Brouillard has been found guilty of extortion towards the complainant, Mrs. Lebel.
 The only people present when the crime took place were the accused, Lebel, and her daughter. The trial judge’s decision was based on the credibility he gave
the witnesses.
 In the Court of Appeal Brouillard complained of errors of law and of fact on the part of the trial judge and also said the trial judge was biased. The Court of
Appeal reiterated his culpability.
 Appellant relied on the same grounds of appeal in the SCC.
Decision: There was no error of fact and of law. The judge’s conclusion was not unreasonable. But, the judge’s conduct raised a possibility of bias, and a new trial
should be awarded.
Ratio:
Principles:
When a judge loses patience and starts to assume the role of counsel, and this happens to the detriment of the plaintiff, a new trial must be awarded even if the trial’s
judge conclusion was not unreasonable having regard to the evidence, and the judge has not erred with respect to the law applicable to the case and has not
incorrectly assessed the facts.
Rules regarding the judge’s conduct
 Judges are no longer required to be passive (idea of “sphinx judges”).
 Not only can they intervene in the adversarial trial, but sometimes they must.
 However, it remains the role of the judge to hear and determine the issues raised by the parties, not to conduct an investigation on behalf of society at large.
 A judge can ask questions in order to elucidate an obscure answer but it is for the counsel to decide when this must be done.
 The nature and extent of a judge’s participation in a trial is a matter of discretion that must be judicially exercised.
 Judges have a right, when they are under the impression that the witness is not telling the truth, to step in and say: “You behave yourself and tell me the truth”
but this cannot be done until the witness has given some indication that he or she is not trying to tell the truth.
 Prudence and the resulting judicial restraint must be all the greater where the accused is a witness because at the end of the day, he is the one that might leave
with handcuffs.
Conclusion: although the judge may and must intervene for justice to be done, he must nonetheless do so in such a way that justice is seen to be done. It is all a
question of manner.
Application to the case at bar:
 The judge might not have been biased but he gave this impression
 He asked the accused twice as many questions as his own lawyer, and asked a defence witness almost as many as the Crown
 He frequently interrupted and was sarcastic
 This gave the impression of assisting the Crown, since his questions were in the nature of cross-examination
 It is in the interest of justice that a new trial be held.
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c. Quasi-judicial and inferior tribunals


It’s a typical feature of common law systems that some private disputes have been removed from the courts and delegated to different tribunals (régie du
logement for e.g.)
There, we have an even more powerful shift away from the classic model. The rules will differ, and allow the judge to play a more active role mostly for
efficiency concerns.
ii) The Civil Law Tradition: “Quasi-Inquisitorial” Model
Adjudication in the civil law world follows an inquisitorial model. This brings to mind the idea of a judge who is more active, and more specifically, the image
of an adjudicator, who after having been seized of the case, would do research of his own and gather the elements in order to determine who is right. Ideally, the
adjudicator would investigate the background of the dispute and gather the information useful to determine the validity of the claims. In other words, the judge is
acting like a commissioner of enquiry.
a. Historical perspective
The first explanatory factor that comes to mind is the absence of juries in civil law.
The absence of the jury clearly does not explain everything. The most plausible explanation really lies in the differences between the roles of the courts.
 Unlike common law, civil law has always been concerned with serving the public interest. This is why judges must get it right in questions of law and facts.
 And if courts are more concerned with public interests, it makes sense to give the judge a more active role and some investigation powers to make sure that
truly objectively accurate conclusions will be drawn with respect to adjudicative facts.
 Relationship to the active judge and the standard of proof
 CML's BoP standard implicitly acknowledges the possibility of inaccuracy
 In contrast, CVL's more stringent standard implies that ascertaining “truth” is possible, leading to the need for a more active judge who is never
going to make any mistakes
 CVL's “myth” the law is clearly set out in the code, and the facts are ascertainable – so judges will/can get it right
b. Contemporary views

From a more contemporary perspective, the model of the active judge is seen as being preferable because it is more efficient and better at ascertaining
truth

Also, it is mythical to speak of a pure inquisitorial model. Parties are still responsible for defining the scope of the dispute by identifying the facts through
written pleadings.

This is known as the principe dispositif
 Judges can only seek information within these boundaries to verify what the parties have said.
 They cannot investigate everything in an unconstrained manner.
 Thus, it would be more accurate to say that the more active role of the civilian judge really only applies to facts which have already been
raised by the parties, but which have not been formally admitted by both parties.
 [Although this principle also exists in common law, it is much stronger in civil law.]

Cadiet distinguishes between:
 (1) pre-constituted evidence or “pièces” (documents and real evidence)
 (2) other evidence that can be adduced at trial through “les mesures d’instructions” (evidentiary orders to cause evidence to be adduced at trial).
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
The distinction matters because the roles of the parties and the court will be different in each case.
1) Pre-constituted evidence (pre-existing documents):
 The parties have the primary responsibility for seeking out the pre-constituted evidence. Judges will have some powers to go beyond what the parties have
adduced, but essentially it is for the parties to control this part of the process.
2) Any other information that can be adduced at trial, such as testimonial evidence, or when a court decides to make a visit (as in Labtronix case):
 Courts are in control, in that:
 They determine whether such evidence will be taken, i.e. whether they will really need it to decide dispute
 They determine when in the proceedings it will be taken
 The control how the evidence is adduced (e.g. they examine witnesses)
 So, in the case of testimonial evidence, the judges decide if witnesses will be heard at trial. If so, they then decide how the testimonial will go on.
 A common lawyer would say it is not fair that the parties don’t have the power to tell the story “as they see fit”.
 This must be qualified. The parties do have say on how things occur – because the court needs their input – but it is the court and not the parties that make
the final decision.
***A concrete example of how these differences matter
 A patient sues a doctor for leaving a scalpel in her stomach
 Doctor contests:
o Causation (plaintiff’s problems are caused by something else)
o Prescription (plaintiff’s case is time barred)
o Fault (it was another doctor who did the deed)
o Prejudice (actually, the plaintiff isn’t suffering as much as she said)
 In a CML jurisdiction, all four issues will come to trial – parties will bring in experts on all these issues – HUGE trial
 It may be that after all this work, the case will come down to a three-page judgment on prescription: case is time-barred and none of the other arguments
matter
In CVL jurisdictions (not including Quebec), the judge controls how the evidence is presented
 Judge can bifurcate the proceedings – FIRST have a trial on the issue of prescription, THEN have the giant remainder of the trial if necessary
Note: CML judges do have most of these powers, but don’t use them as much
 Weight of tradition counts against this approach
o Idea that truth is most likely to emerge when parties can pit their cases against each other as best they can
 Also, CML bifurcation is only available at the request of the parties
o And it is obviously in the best interest of the lawyers NOT to use this power!
Bachand: the judge in CVL is given a lot of power, but you can see how these powers can be used to make justice much less wasteful of time and resources
 We should at least stop considering an entirely non-passive judge as a taboo
 Results of the current procedure are disastrous: litigation is out of reach for all but the rich and the extremely poor
 Very telling that England itself has abandoned these taboos – this is a compelling demonstration that these are NOT taboos!
If we accept broad investigative powers for adjudicators, why not for judges??
Kötz elaborates on the differences between the civil procedure and the common law one.
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Kotz, H., “Civil Justice Systems in Europe and the United States”
Civil Procedure in Germany
 It is the court that will invite the witness to narrate, without undue interruption, what he knows about the matter on which he has been called. After the
witness has given his story in his or her own words the court will ask questions designed to test, clarify, and amplify it. It is then the turn of counsel for the
parties to formulate pertinent questions. But in an ordinary case there is relatively little questioning by counsel for the parties, at least by common law
standards.
 In Germany, as indeed in most Continental countries, the expert will be selected and appointed by the court after consultation with the parties. It is the court
that will conduct his examination, and it is the court that will advance the expert's fees eventually to be borne by the losing party.
 Civil procedure in Germany and in other civil law jurisdictions differs from the American system by making the judge responsible for the selection of expert
witnesses, for the examination-in-chief of both fact and expert witnesses, and for creating the record based on those examinations. The judge's conspicuous
role in the actual taking of evidence, especially in the taking of witness testimony, has led common lawyers to label Continental civil procedure as
"inquisitorial" or "non-adversarial".

o
o

Examination of witness in continental system has risks:
Technique of inviting the witness to narrate what he knows will push him to present a coherent, comprehensive story by filling the gaps by half-truth or
fiction.
Danger that the judge, acting as chief cross-examiner of the witness, may lose his impartiality.
On the other hand, there is no need to prepare and coach the witnesses
Similarities With American Civil Procedure
 The truth is that both in the American and Continental civil justice systems, the power to establish the facts on which the judicial decision rests is reserved to
the decision-makers, whether the trial judge or jury in the United States, or the court on the Continent.
 On the other hand, both systems are adversarial: it is in both systems exclusively for the parties and their lawyers to identify the facts they think will
support the claim or defence, to make the appropriate factual allegations, and to nominate the witnesses and the facts of which they allegedly have
knowledge.
 The court's task is to do, and be seen to be doing, justice between the parties; it is not to ascertain some independent truth.
 In both systems the lawyers advance partisan positions from first pleadings to final arguments.
 In both systems the parties and their lawyers investigate and identify in their briefs the facts they think will support their claims and defences.
 In both systems the court cannot go beyond the parties' factual contentions nor can the court strike out on its own in the search for what it believes might be
the real truth.
Procedural Contrasts in Comparative Perspective
 The judge’s prominent role in the actual taking of witness testimony – in German law, the judge makes evidentiary orders identifying witnesses to be heard,
describing with some precision the facts on which they are to be heard, and fixing the order in which they are to be called
 It has been said that the German system was one where the court was doing the fact gathering. This needs to be qualified, because after all, it is the parties
that gather the factual materials with which the court must work  principe dispositif
 In European civil procedure there are no trials as single temporary continuous presentations in which all the materials are made available to the adjudicator.
This is how things happen in the USA because of the presence of the jury.
 Civil litigation as a means of vindicating the public interest is far less significant in Europe.
Conclusion
 The typical case at which the German system is aimed involves a comparatively small amount of money, raises no major issue of public policy and is merely
a dispute between private parties about private rights
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


In these cases, it makes sense to give the judge a leading role in the examination of witnesses and wider powers over the evidentiary process.
This reduces the amount of lawyer effort and cost in exchange for a modest increase in effort and activity on the part of the judge.
Author believes that this is where the strength lies and it should consider making changes to civil procedure to provide effective justice to the little guy.
See also Bearsley, “Proof of Fact in French Civil Procedure”, 1986 (p. 415)
iii) Quebec: More Passive than the Civil Law; More Active than the Common Law
C.C.Q.: Art. 2810; C.C.P.: Art. 4.1, 4.2, 273.1, 279, 290, 292, 312,
318, 413.1, 414ff., 463, 815.1, 822.2, 977, 982
The main point is that the judges’ role in Quebec has always been heavily influenced by the common law tradition. Therefore, judges remain relatively
passive. However, there are many exceptions to the role the judge plays.
Traditional passive role (like Common Law):
4.1. CCP.
Subject to the rules of procedure and the time limits prescribed by this Code, the parties to a proceeding have control of their case and must
refrain from acting with the intent of causing prejudice to another 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 the case.
More active in many situations:
4.2 CCP
In any proceeding, the parties must ensure that the proceedings they choose are proportionate, in terms of the costs and time required, to the
nature and ultimate purpose of the action or application and to the complexity of the dispute; the same applies to proceedings authorized or
ordered by the judge.
279 CCP
[This provision can be used to move away from the model of the passive judge, as it allows the judge to reduce the freedom of the parties.
This is a possible discretionary catch-all basis for the court to intervene to further restrict the freedom of parties to present evidence as
they see fit]
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 conference may also be called and presided over by a person designated by the chief justice who is a retired judge or an advocate with at
least 10 years of practice. Years in which a person acquired relevant legal experience may be considered by the chief justice to be years of
practice.
The agreements and decisions made at such conference are recorded in minutes signed by the attorneys and countersigned by the person who
presided over the pre-trial and, as far as they go, govern the hearing before the trial judge, unless he permits a derogation therefrom to prevent an
injustice.
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290 CCP
292 CCP
[This allows judges, before the trial, to hold a conference with the parties with a view to get the parties to agree on ways to simplify the
trial. While the judge does not have the power to determine how the evidence is presented, he can make efforts to try and become more
active. This demonstrates the movement away from the passive judge.]
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.
[This gives the judge the power to make evidentiary orders, and take active steps to gain first-hand knowledge of the premises in dispute.
All the parties will visit the site so as to maintain the “principe de contradiction”. Bachand believes this is direct evidence of the more
active judge in Quebec.]
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.
[This clearly provides the judge with a more active role. This provision is unique to Quebec. This is there to avoid an injustice; it is there
to avoid a situation where the party would suffer an injustice if the gap in evidence were not pointed out by the court. This provision can
be very useful for self-represented litigants who are up against big corporate lawyers.]
273.1 CCP
413.1 CCP
The court may, on an application, split an action in any matter at any stage of the proceeding.
The resulting trials are held before the same judge, unless the chief judge or chief justice decides otherwise.
[This only occurs on the application of the parties (not on judge’s own motion as is the case in traditional CVL regimes, such as France
and Germany). This can occur at any stage of the proceeding. This provision is not very frequently used in practice (initially only in
personal injury cases); but good tool to have in your bag.]
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.
[This saves time for everyone. This gives the judge the power to get the experts together to discuss the possibility of consolidating their
reports.]
The judge is given an even more active role in certain situations:
815.1 CCP
(Family cases) – At any time during the hearing, the court may order, even of its own motion, the production of any additional evidence or the
summoning of any person whose testimony it considers expedient, or convoke, for hearing, any person whose interests could be affected by the
judgment.
Idea is that in family law cases, there are very important interests at stake, and the search for truth is critical
Thus, judge has the power to compel witnesses
This is unheard of in civil cases in CML
977 CCP
(Small claims) – The judge instructs the parties summarily as to the applicable rules of evidence and the procedure that appears appropriate. On
the invitation of the judge, the parties state their allegations and call their witnesses.
Court examines witnesses, runs the system
Bachand: small claims is widely believed not to have met its objective of a speedy, effective court system
Why? Because judges have not made use of the powers that are given to them: they have trouble switching hats from their other, much
more passive duties
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What this is telling us: Passive judge can lead to injustice, and since object of system is to be fair to everyone, the court is given the power to protect party being
disadvantaged via some degree of freedom.
Labtronix Case – despite judge’s more active role, can’t just go nuts and do anything!
Technologie Labtronix inc. c. Technologie Micro Contrôle inc. et D. Lamothe, p. 303
Jurisdiction
Facts
Issues
Holding
Ratio
QCA 1998
 Unfair competition action. Former employee started up new company using some of personal info of first company.
 During pre-trial, D went to court seeking order to have the P’s lawyer removed from the case (i.e. motion for removal of law firm). The
defendant alleged that the plaintiff’s lawyer encouraged a potential witness to commit purgery.
 The issue was one of credibility. On the one side you have the testimony of the lawyer, and on the other hand you have an accusation of
purgery (i.e. buying a witness).
 The parties are debating this in court, and the way that the argument developed was such that it became very important to ascertain the date on
which a certain document was prepared. The judge has a flash, and says that one way to verify when the document was created is to verify the
file properties (i.e. the creation date) at the lawyers offices.
 The Court orders that they go visit the law firm immediately per Art. 290 CCP, but says that the law firm cannot be told in advance that they
are coming. The order is executed, and the information that the court finds is that the last version of the document was saved on July 17 th, the
date that supported the lawyers’ version of events. Thus, the hunch of the judge was incorrect.
 Nevertheless, the judge believes that the lawyer is lying, and grants the order that the lawyer be removed from the case.
 This decision is then appealed.
Error of the judge in terms of active/passive role. Did he surpass the limits of his powers of intervention?
Judge went too far – became an investigator himself. Affirmation of the principe de la contradiction.
Proulx JA:
 Trial judge should have adopted a more passive role. Affirms principe de la contradiction, adversarial principle: parties retain primary
responsibility for adducing evidence. (Para. 62, p. 310).
 Despite trend favouring an increasingly active role of judges, there are still limits to what a judge can do! (Para. 80, p. 311)
 Trial judge exceeded his powers in ordering immediate on-site visit. It’s true that judges take judicial notice of facts, to make verifications
and to order on-site visits (Art. 2810 CCQ). It’s also true that they point out gaps in the evidence to parties. But this doesn’t give them the
power to be investigators themselves. That would be too much of an inquisitorial role. (Para. 98-100, p. 313)
 Trial judge has key role in assessing credibility of witnesses (Para. 32, p. 183)
 But in this case judge made grave errors in interpreting the evidence. There were major reasons to doubt Lemaire’s credibility (and others on
his side), but the trial judge took their testimony at face value.
 Because this has bearing on a criminal issue, the interests at stake are more important, and the parties are entitled to a more diligent
treatment of evidence.  The judge could have invited the parties to give their positions on the issue.
 Privacy concerns: When the judge starts investigating independently some aspects of the case, this is the state starting to look into the
private lives of the parties. This goes beyond the role of the judge. This demonstrates the link between the model of the passive judge and the
role of the state in purely private matters.
 ***This case proves that appellate courts will be a little more willing to overturn factual conclusions of judges when sensitive issues –
such as those of a criminal nature – are at stake. The Court of Appeal says that they have the authority to look at the evidence a little more
closely because of the sensitive issues involved.
 Appeal judge also criticized the trial judge for applying his own knowledge of how computers work and how law firms use Microsoft Word
– this is not general knowledge and was not raised in court
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CCQ 2810. 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.
Comments:
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
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Note: 2810 CCQ is a horrible translation. It makes no sense to use the concept of judicial notice in this provision. What they meant was that the court may
take notice (not judicial notice) of the facts in dispute.
Key question was whether article 2810 CCQ had completely transformed the traditional form of adjudication Quebec had. Can a judge from a procedural
perspective go out and get evidence himself?
o Some argued that this provision actually changed our entire system and gave courts great powers to seek out the evidence at trial.
o However, court found no fundamental shift and the passive judge model is not abandoned. It does not signal the fundamental accrochement
principle that judges must be passive. Exceptions (allowing for special powers) do exist, but they are exceptions and not general principles!!!
Courts cannot go crazy with this power!
290 CCP is an exception to this fundamental principle.
This power can be misused, however, as was seen in this case. The court explains that the court can make use of this exception and make personal
observations of places that are in dispute (i.e. parties have made an important part of their case) This is where we draw the line.
o But here, the computer was not an issue in the case!
o The judge used the 290 CCP powers to seek additional evidence as to the issue of credibility this is how he made an improper use of this
power.
o Didn’t even hear parties opinions as to whether the unannounced visit would be a valid exercise.
Court also overturned finding of facts in this case. Cf. Housen. He is overturning the credibility basis and the date that the file was modified. There is no
overriding and palpable error. This is a finding of fact that should not be overturned easily.
This is a case where important interests are at stake. The lawyer is being accused of a criminal act.
o Bachand explains that there is a trend for courts to disregard the normal evidence rules, including the standard of proof, because interests are at
stake, and this goes beyond what is normally in a civil dispute. This may explain why the court behaved in such a manner here.
o Not saying balance of probabilities standard being changed, but being “really careful”.
Also, this fact was clearly not probative if the judge disregarded it after he found information contrary to what he expected! This does not look
like a very impartial process and may illustrate the problems with the active judge.
iv) Before Inferior Tribunals
A note on Inferior/Quasi-Judicial Tribunals – Tendency to Reject “Passive Judge”
 There is a clear trend away from the passive judge when we are dealing with inferior tribunals. They have a much more inquisitorial role.
 The role of the adjudicator here is defined in rules specifically applicable to the tribunal at issue. Adjudicators are more comfortable taking control of the
evidence.
 These tribunals are not that involved in resolution of civil disputes; mostly involved in resolution of public disputes
 Shouldn’t generalize these decisions: rules from one tribunal to the next vary extensively (e.g. Regie du logement is different from labour tribunal, etc.)
 Despite this, clear trend away from model of passive adjudicator
 E.g. 9.8 Regie du logement act : commissioners are vested with the powers and immunity of commissioners appointed under the Act respecting
public inquiring commissions, except to order imprisonment – i.e. they have to actively investigate cases (more control than even SC judges); they
ask very specific questions, etc.
 Might be due to fact that they’re constantly working in specific context so comfortable taking control
 Some Canadiann commentators have said administrative justice follows inquisitorial model
 FB thinks this is going too far; parties are still the ones bringing witnesses, docs.
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
Food for thought: these administrative tribunals have been set up to help out with movement, efficiency, to help get at root of problems. Yet we’ve come to
conclusion that the model of the passive judge is not the right one. So why do we accept that there aren’t too many problems of impartiality and
independence, yet we’re still reluctant when they’re sitting on “real courts”?
Rivest c. Bombardier
Facts




Worker brings a claim for benefits for what she alleges is a work-related injury; Bombardier says the injury was not work-related
Adjudication process governed by a quasi-judicial tribunal with various appeal procedures
Both parties file expert reports analysing her injuries to determine whether it is work-related or not
Adjudicator decides it is not happy with the expert evidence, so they go her workplace with the parties, sit her in her chair, and actually assess her
motions etc.
 Adjudicator comes out of this site visit with additional information that influences the decision
 Worker wins
Appeal to SC!
 Bombardier argues to the Superior Court that the adjudicator took way more liberties than he should have, given the model of the passive judge (though
of course they couldn’t ignore the powers allocated in the act)
 Bachand: they had a point, since if you read between the lines, the reason the adjudicator wanted to make the site visit was because he thought that the
worker simply didn’t present her case well: sloppy experts, etc.
 If the adjudicator is using its powers to help out the weaker party, doesn’t that show a lack of objectivity?
 Bombardier wins at this level – Superior Court finds that the adjudicator went too far
 In ordering the site visit and making the woman simulate her daily motions, etc.
 In not communicating to the parties the facts acquired so they could comment on or contradict them
Appeal to CA!
 SC’s view doesn’t take into account the context in which the CLP has evolved, or the modern version of administrative justice
o Their opinion would empty the Loi sur la justice administrative and the LATMP of their meaning
 The CLP must assure, on the matter of reparation, that workers obtain what they have a right to, not more or less
o This is a duty of public order and demands and active role in seeking out the truth
 The commissioner does not become a witness when he goes on site
 Also, the failure to communicate the information to the parties is not an issue, since the parties were present when the visit was made
o Visit took place in the presence of the parties and several Bombardier experts
 Says that judicial tribunals have a duty to apply the public policy statutes
 Principle goal is the search for truth
Comments
 Similar to Labtronix?
o No: in this case, the nature of the site was highly relevant – the adjudicator was trying to verify the facts
o In Labtronix, on the other hand, the adjudicator was essentially on a fishing expedition – went into inquisitorial mode to seek out new evidence
that had not been pleaded
o Additionally, there is an important power imbalance in the present case – not true in Labtronix
 Administrative tribunals can be more active in seeking out the truth than courts
 Quasi-j. adjudication shows that more active adjudicator doesn’t necessarily jeopardize impartiality of adj. and legitimacy of process
 Plus: more active adj. seen as essential to increase access to justice (this is certainly what Bachand thinks)
o Model of the passive judge will just allow stronger party to continue benefiting from its own advantageous position
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Makes you wonder why this shouldn’t be the same approach when there is a dispute between an insurance company and a beneficiary, or a
vendor and a customer
Remember that the more active judge can also exercise his control by BLOCKING evidence from the record in addition to investigating new evidence –
it goes both ways
Side-note: reasons for a more passive judge
o Note that even ignoring the issue of power imbalance between the parties, a more active judge can help curb the perverse tendency of lawyers
to ramp up their hours since they are paid by the hour if lawyers are controlling the whole process
o
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
v) Before Arbitral Tribunals
IBA Rules; C.C.P.: Art. 944.1-944.9; UNIDROIT/ILA Principles: P. 21.1
ALI/UNIDROIT – Burden and Standard of Proof
21.1. Ordinarily, each party has the burden to prove all the material facts that are the basis of that party’s case.
A Note on Arbitral Tribunals – Tendency to Reject “Passive Judge” (in international context)
• In theory, the parties are pretty much free to do what they want in arbitration. Therefore, this is in line with the principle of party autonomy.
• In practice, however, a distinction must be made between domestic and international disputes.
a) Domestic disputes
• For domestic cases, the parties, lawyers and arbitrators will use the model they use in normal adjudication. Judges will be quite passive subject to the same
exceptions.
• Art 944.1. CPC “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.”
• See, more generally, Art 944.1- 944.9 CPC
o Quebec case  Parties may be reluctant to give more powers to the arbitrators because of a fear that courts will look at the arbitrators and
evaluate whether they overstepped their role. This is a risk if the arbitration matter goes to court.
• Note: often parties will not put into agreements the type of judge desired.
b) International arbitration
• For international arbitration, a system has been devised that incorporates key elements of both traditions (of the parties) in an attempt to come up with a
procedure that is acceptable to both sides.
• There is a model that is being increasingly followed in the practice of international arbitration where there is a balance between the two types of judges.
This balanced model is codified in the IBA Rules:
o Arbitrators can include these in the arbitration proceedings. It is soft law (i.e. not a treaty) and it is only a set of laws that parties may turn to.
o For the most part the IBA Rules look like modern CML (or QC) system (party/tribunal appointed experts, witnesses examined by parties) (??)
 Art. 5-6: party-appointed or court-appointed experts
 Art. 7: site visits
 ***Art. 8(1): the tribunal’s complete control over evidentiary hearing
 ***Art. 8(4): power to ask anyone to give evidence
o This is a deliberate decision to give the powers that a CVL judge would have (incorporates extensive management powers that CVL judges
have with respect to the fact finding process– to split issues and decide how evidence will be presented, which issues are to be tried, order of
trying of issues and trial proceeds).
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•
Lessons to be learned from int’l arbitration: Same growing consensus on idea that the traditional model of the passive judge is probably a failure, especially
re: access to justice.
B) The Parties’ Role Vis-à-Vie Each Other: The Burden of Proof
Function/purpose of the burden of proof rules
• Rules on burden of proof are needed because adjudicators must know what to do, and what to conclude, in situations where there is an uncertainty as to the
existence of a material fact.
• Example: Medical malpractice scenario:
o Doctor is sued by a patient.
o Doctor is asserting a prescription defense.
o The material facts in this case are: fault; causation; prejudice; and the moment in time where this prejudice arose (this is included because of the
defense raised).
o Assuming that the only material fact in dispute was when the cause of action arose, and that at trial both sides adduced evidence on when this
cause of action arose…
The adjudicator can come to 3 different conclusions:
I. On a balance of probabilities, the prescription period started running less than 3 years before the lawsuit Plaintiff wins here (fact proved on
balance of probabilities)
II. On a balance of probabilities, the prescription period started running more than 3 years before the lawsuit  Doctor wins here (fact not proved by
balance of probabilities)
III. Cannot draw a conclusion on a balance of probabilities because of uncertainty. Since you cannot draw a conclusion on a balance of probabilities,
you need some rules to tell the adjudicator who wins in this situation. This is what the rules on burden of proof do.
“…the practical issue of how to assign the burden of proof arises only in those situations where the process of weighing evidence has
produced no result. Then and only then is it essential to resolve the problem, so that, practically, the judge does not ask, first, which of the two
parties has the burden of proof, and then how that proof should be made; the judge first hears all the evidence placed before him or her by the
two parties equally, and only if none of that evidence appears to the judge to be decisive does he or she consider the issue of how to assign
the burden of proof, so as to designate which of the two parties will be believed on the basis of its mere assertion.”  Excerpt from Caisse
Populaire.
They [the rules on burden of proof] only come into play were there is no evidence or that evidence is not significantly probative. It’s tricky because its
function is very limited and only applies in a small number of cases.
A party who bears the burden of proof with regard to a certain issue must show evidence on the issue in order to have some chance of winning. But where an
issue like time limitation is raised, both parties will throw in evidence and the judge will be able to make a conclusion one way or another on a balance of
probabilities


Madame is seeking a change in the normal state of affairsNormal state of affairs=people do not owe people money.
But prescription burden is on the doctor, because this is an extinction of obligation. Normal state of affairs=parties are in a legal relationship and that
he owes Madame a duty, but the doctor is asserting that her right to damages has been extinguished.
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How is the allocation actually made?
How the allocation is actually made is tradition specific and is different in both the CML and CVL.
Civil law
All issues of the allocation of the burden are dealt with according to the general principle that stability is to be preferred over change.
 Favouring the status quo is a valid objective that is fundamental in the civil law tradition.
The party who is making an argument that would change the parties’ relationship in real life, is the party that must bear the burden of proof.
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 are exceptions to this principle. Rules exist that will actually tell you how the general principle is to be implemented in specific situations:
Art 1465 CCQ: “A person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves
that he is not at fault.”
 From a substantive point of view, there is no liability if there is no fault on the part of the owner, but here it is the owner who must prove the absence
fault.
Art 2805 CCQ: “Good faith is always presumed, unless the law expressly requires that it be proved.”
• We define presumptions as rules that regulate the relationship between a fact that has been proven and one that still must be proved at trialThis rule does
not try to regulate the relationship between material facts and circumstantial facts.
• The normal state of affairs is that people act in GF, so when someone makes an argument that the party acted in bad faith, that person is trying to make an
argument that is contrary to the normal state of affairs this in NO way seeks to regulate the relationship between circumstantial and material fact.
• Rather, it shifts the burden to the person alleging the bad faith occurred.
• Key point: This is a rule of burden of proof and this is not presumption as a legal rule. Some rules have the same function – such as this one – but are
(questionably) called presumptions, even though they don’t regulate the inferences that tend or ought to be drawn between a circumstantial and material
fact.
CCP 289
The party upon whom the burden of proof lies must proceed first to the examination of his witness.
The opposite party then presents his evidence, after which the other party may adduce evidence in rebuttal.
The court may, in its discretion, allow the examination of other witnesses.
In the majority of cases, there will not be a specific rule and you will have to go back to the general principle on the allocation of the burden of proof. This
proposition can be seen in Caisse Populaire: analysis comprises of finding out who is trying to change the current state of affairs. It illustrates the difficulties that
can arise in practice. Although it is quite obvious how the burden should be allocated according to the general principle, this is now always easy to do!
Caisse Populaire de Maniwaki v. Giroux (SCC, 1993), p. 61
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Facts:
• Giroux obtained an insurance policy that included the payment of interest on the principal of the hypothec in the event of total disability during the term of
the loan. (1979)
• 2 years later, Giroux suffered injuries to her back that caused her to undergo numerous treatments and prevented her from performing her normal activities.
(1981)
• In 1983, she discovered that she had this policy and claimed the compensation retroactively.
• In 1984, the insurance company stopped paying interest when Giroux refused to provide it with a medical certificate attesting to her condition.
• Giroux is trying to assert her right by invoking the rules of burden of proof, while the Insurance Co. is relying primarily on the contract.
Issue: Who, the insurer or the insured, must prove cessation of disability when the insurance company has already made payments under a disability insurance
policy?
Decision: The insurer (normally); the insured (in this case).
Reasoning:
• Insurance Co says that Giroux must meet the burden imposed by paragraph one of CCLC 1203 (CCQ 2803). This is because she is seeking the
performance of an obligation, which would require the Insurance Co. to continue to pay interest in the event of total disability. The normal state of affairs
is that people are not in relationships with each other.
• Giroux, on the other hand, says that this is a case that falls under the second paragraph because the Insurance Co is arguing its obligation has been
extinguished and therefore they have the burden of proof. She is saying that the entitlement to the benefits has already been established so the normal state
of affairs was that she was disabled and that she was entitled to the benefits. She claims that the Insurance co. is the one changing the status quo by saying
that her right under this policy is now extinguished/modified.
• The Court sided with Giroux’s legal argument: Second paragraph of CCQ 2803 must apply
o Once a party has established under the first paragraphs that there is a legal relationship between her and another person, that becomes
the “normal” state of affairs
o Accordingly, the party that wishes that state of affairs changed (alleging that the relationship no longer exists) must in turn persuade the
court (p. 66)
• The change in the insured’s condition is a fact which alters the relations between the parties. Since it is the insurer which alleges the change in situation, it
must prove it.
• BUT this would not change the outcome of this case. Even if the TJ had correctly attributed the burden of proof, the outcome of this trial would not have
been different. If the judge had any lingering doubt after the evidence presented, the doubt would have had to be resolved against insurer but he did not
have doubt.
• He did NOT have to consider the burden of proof because the TJ clearly found that she was no longer disabled.
Comments:
• At the end of the day, the SCC sided with the insurer because burden issue did not arise in this case. Although they deal with how CCQ 2803 should be
implemented and how the burden should be allocated, it was completely unnecessary as the TJ had already concluded that she was not disabled!
• This case is useful to show how the principle will be implemented but Bachand does not know why the SCC even got into this discussion.
Important Point: As a conclusion was already made with respect to her disability, the TJ did not have to try and figure out who bore the burden in this case.
CML application
• In the CML perspective, the law of evidence has little to say about the allocation of the burden of proof in civil matters.
• There are no general rules that are specific to this topic. So, when you are considering who bears the burden of causation, you must go to the branch of the
private law which is at issue. Often the burden allocation is based on policy considerations that are relevant to the substantive law at issue.
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•
o
The rules will often be justified by policy considerations.
o Favouring the status quo is only one objective in CML
o Special considerations such as those disfavoring substantive objectives
o Convenience
o Fairness
o The judicial estimate of probabilities
Very discretionary!
McCormick: “In summary, there is not one key principle governing the apportionment of the burdens of proof. Their allocation […] will depend upon the
weight that is given to any one or more of several factors, including: 1) the natural tendency to place the burdens on the party desiring change [so where it
fundamental principle in civil law tradition, it is merely a factor among others in the common law tradition]; 2) special considerations such as those disfavouring
certain defenses; 3) convenience; 4) fairness and 5) the judicial estimate of probabilities.”
As a general framework, this gives the judges a lot of discretion and is very different than a civil law judge’s task. Unlike a CVL judge, a CML judge will look to
fairness and convenience (as explained by Sopinka in Hollis).
Hollis v. Dow Corning Corp., 1995, SCC (p. 145)
Facts:
• Hollis underwent breast implant surgery on the advice of her surgeon, Dr. Birch, to correct a congenital deformity she was not warned by him of the
risks of post-surgical complications or of the possibility that the implant could rupture inside her body. A year later, the implant ruptured in her right
breast.
• Dr. Birch received little warning from the implant manufacturer as to the possibility of the implants’ rupturing. Dow was aware that these implants could
rupture.
Issue: Does Hollis have to prove (on a balance of probabilities) that her doctor would have properly warned her of the risks if Dow had properly warned the
doctor?
Decision: No
Reasoning:
Majority
• Hollis showed that Dow breached its duty to warn her and that she would not have had surgery if properly warned – asking her to prove that if Dow had
warned the doctor would have warned her is a hypothetical situation that not should fall to the plaintiff to prove
o Clarification: it is true that if the doctor’s probable failure to warn WERE proven, the plaintiff would not recover – but it falls to the defendant to
prove this
• There is a general persuasive onus in negligence cases that generally falls on the plaintiffs but it does not apply to a hypothetical of this kind.
• Court cites to Cook v. Lewis where 2 hunters both shot in the same direction as the victim and victim couldn’t prove which actually caused the injury
o While the victim’s power of proof was not completely destroyed here (as it was in Cook), it would be seriously undermined if Dow’s position
was upheld and she was required to prove a hypothetical situation (=fairness).
• Position of “great informational inequality” between Hollis and Dow (fairness, equality)
• Not fair not to allow liability, since in this case Hollis couldn’t sue anyone (fairness)
• Court also referred to Dow’s evidence that tended to show that Doctor would probably not have warned her of risks (was not his practice to do so) but held
even this was not sufficient to place a burden on Hollis.
• Held that if manufacturer fails to provide warning to learned intermediary it can’t then raise as a defense that the intermediary could have ignored the
warning.
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Sopinka, J. (dissenting)
• Majority is trying to eliminate fundamental requirement that plaintiff establish causation in order to prove liability Hollis must show that her doctor
would have warned her of any dangers that had been brought to his attention and that if warned she would have refused the operation.
• Finds that Cook and Snell are exceptional cases that reverse the burden where defendants have participated in destroying the means of proving the case
against them or where the defendants control the access to the information
• Only within these limited spheres is the plaintiff partially relieved of the burden
• This case does not fit into those precedents (since Dow did not act in any way to destroy Hollis’ ability to prove causation) and the general
burden/principles with respect to causation are adequate.
o Indeed, the evidence for this question rests largely with Dr. Birch, and it would not be in his interests to testify that he wouldn’t have warned her
• As a result, the burden of proving causation remains on the plaintiff. In order to discharge this burden, the plaintiff must adduce evidence that her doctor
would have warned her.
• Could also employ a Buchan standard: plaintiff would not need to prove that the doctor would have told her unless the defendant produces some evidence
that raises the question, in which case she would have to prove it
• At para. 87: “If this issue had been addressed at trial, the trial judge would have been obliged to weigh the evidence in order to resolve the conflict. The
burden of proof would play no part in this determination. Only if the evidence were so evenly balanced that a determinate conclusion could not be
reached would resort to the legal burden of proof have been necessary. The weighing of conflicting evidence is vital in the resolution of any factual issue in
respect of which the evidence is in conflict. This did not occur at trial here. Prowse JURIDICAL ACT, in her majority judgment, did not weigh the
evidence because she concluded that Dow had a duty to warn Ms. Hollis directly. As a result, this aspect of causation did not arise. My colleague does not
weigh the evidence because he largely dispenses with the need to prove causation. The result is that this fundamental step in the trial process which is
so important in resolving factual disputes will have been by-passed if a new trial is not directed.”
Comments
 Focus must be put on Sopinka’s dissent.
 In analyzing the issues, he is looking at precedents from the law of torts on the very issue of who bears the burden of causation. The general rule in
common law is that the plaintiff bears the burden of the causation.
 At para 80, he cites 2 exceptions allowing the judge to shift the burden on the defendant: (1) When the defendant has participated in destroying the proof or
(2) where the defendant somehow controls the evidence (i.e. he is in a better position than the plaintiff to have a better access to the proof.)
Key point: The analysis is more open-ended in common law  favoring the status quo is only one relevant factor in common law.
III. How May Evidence be Used to Prove Facts
This section will look at the manner in which evidence can be used.
Rules we will be looking at have several functions and serve several objectives
Some of these rules function to exclude certain types of evidence, even when the evidence relates to material facts that are relevant.
Functions:

Principle 1: Some rules function so as to exclude evidence that relates to facts that are either material or relevant, thus depart from general principle
according to which such evidence can be adduced in fact-finding process (ADMISSIBILTY)
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
Principle 2: Some of the rules function so as to depart from another general principle, according to which adjudicators enjoy discretion in assessment of
relationship between evidence adduced and facts in dispute (PROBATIVE VALUE)
o Usually enjoy discretion to evaluate whether the evidence establishes facts as alleged. There are, however, certain rules which depart from this
principle, and which compel adjudicators to exclude certain evidence, and thus cause judges to lose their discretion.
o E.g.: contract presented in court that was made before a notary – must be accepted by judge to have been entered into by those parties at that
time and place – no discretion.
Objectives:
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

Some rules are primarily aimed at elucidating truth
Some rules are primarily aimed at ensuring efficiency of adjudicative process.
Some are primarily aimed at furthering extrinsic public policies.
o E.g. Communication between a lawyer and his client, while very often relevant, are not allowed to be taken into account, as the court wants to
further the extrinsic policy of client-attorney privilege. These rules take priority over the attainment of the truth.
A. Examples of Rules Primarily Aimed at Elucidating Truth
i) A preliminary—yet fundamental—question: are these rules really necessary?
IBA Rules: Art. 9; UNIDROIT/ILA Principles: P. 16; An Act Respecting Administrative Justice. Note how these provisions adopt a different approach than
that adopted, for example, in Book VII of the C.C.Q. and many provisions of the U.S. FRE (e.g. R. 801ff.) with respect to rules aimed at elucidating truth;
Cross and Tapper on Evidence: pp. 22-30
L. Dufraimont, “Evidence Law and the Jury: A Reassessment”
C.C.Q.: Art. 2859
Is it necessary that limits be drawn on the use that can be made by fact finders of material and relevant evidence?
• This is a legitimate question because the evolution of the law of evidence shows a growing scepticism concerning the necessity of such rules.
• The IBA Rules for international commercial arbitration, for example, make no mention of such rules.
 Article 9 on “Admissibility and Assessment of Evidence” discusses relevance, as well as rules aimed at safeguarding public policies, but not rules
aimed at elucidating truth.
• UNIDROIT adopts a similar position.
 Comment R-25A says that “The basic principle is that any factual information, not privileged, that is rationally useful in reaching judgment of
the relevant facts of the case should be admissible as evidence….Common-law concepts of hearsay and parole evidence as exclusionary rules are
generally inappropriate in a non-jury case but they do affect the credibility and weight of evidence.”
 No mention of rules aimed at elucidating truth here either.
• Administrative/inferior tribunals do not bother with such rules either.
• Quebec’s An Act Respecting Administrative Justice simply says at Art. 139, “The Tribunal may refuse to admit any evidence that is not relevant or that is
not of a nature likely to further the interests of justice.”
• There is a trend in administrative adjudication to get rid of these rules. See Cross and Taper on Evidence, pp. 22-30.
These Rules (above) illustrate how the importance of the rules aimed at elucidating truth have diminished but still do exist when adjudication appears before
courts. These exclusionary rules essentially exist because of the jury system. As civil juries have pretty much disappeared, we can be even more concerned with
their uselessness.
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Note how these provisions adopt a different approach than that adopted in Book VII of the CCQ, for instance at section 2859 CCQ.
2859. The court may not of its own motion invoke grounds of inadmissibility under this chapter which a party who is present or represented has failed to invoke.
These rules can perhaps be justified if one of these three conditions is fulfilled (see earlier sections):
1. An exceptional risk that fact-finders may be misled (thus going against the goal of finding truth)
 This doesn’t seem to explain many of the rules regarding documentary versus testimonial evidence, however, since one would think that a factfinder would be able to weigh these appropriately.
2. Cost/benefit (not economic, but costs and benefits in terms of truth).
 Some rules are incredibly technical and complex and increase the cost by their mere complexity. Emerging consensus is to tend towards flexibility
and cost savings.
3. Efficiency
 The value of the evidence has to be weighed against the difficulty of the procedure. It’s best to keep the rules simple!
We will try to show how the importance of these rules has diminished by looking at the 3 basic types of evidence that exist i.e. documentary, real evidence and
testimonial evidence.
Cross and Taper on Evidence: Proceedings in Non-Judicial Tribunals of a Quasi-Judicial, Administrative and Legislative Nature (p. 219)
Different rules for the admissibility of evidence apply in different circumstances
“In cases where the statute provides little more than a requirement that a tribunal shall act upon the basis of evidence, the general view is that this entitles it, in the
absence of special considerations, to act upon any material, including hearsay, which is logically probative.”
“Technical rules of evidence form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision
upon evidence means no more than that it must be based on material which tends logically to show the existence or non-existence of facts relevant to the issue to be
determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be logically probative. (…) If it is
capable of having any probative value, the weight to be attached to the (evidence) is a matter for the person (…) deciding the issue.”
Intro
 It is sometimes a matter of dispute how far and how many of the rules of evidence apply in quasi-judicial, administrative and legislative proceedings
 Many different approaches can be taken: e.g. rules of criminal and civil evidence may be combined; rules may vary according to gravity of the issue, or a more
tolerant attitude towards enforcement of the formal rules of evidence may be taken (as in the case of arbitration.
 Rules may be expressly laid out in the statute which forms these bodies. In formal inquiries the statute may expressly incorporate the formal rules of evidence,
however it’s more common that strict application formal rules be excluded by statute.
 Sometimes the statute bestows the power to prescribe which rules will apply – does this mean that the legislature does not intend the strict rules to apply? Cross
and Tapper don’t think this is the intention conveyed by such a provision.
 It is not clear that the failure to provide for a right to an oral hearing assumes its implied exclusion.
 Flexibility is key – there are many degrees of judicial hearing (from administrative to criminal) and the precise concatenation of rules should be adapted to the
purposes of the proceedings.
 In judicial proceedings, it makes sense to invoke the rules of natural justice, but natural justice requires is what’s fair in the circumstances.
 The main rules that have been controverted are those dealing with the calling of witnesses, the administration of an oath, the right to cross-examine, the
admissibility of hearsay, public interest immunity and the need to disclose.
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Looking More Closely at Some Examples
 The nature of the issues to be decided and the consequences of a finding have bearing on what rules will govern. E.g. if loss of liberty is at stake might have
more stringent rules but may be different from what would have governed in a court (as in R v. Board of Visitors of Hull Prison, ex p St Germain (No 2) where
the right to examine and cross-examine were imposed, but the chairman had discretion to limit the # of witnesses)
 Re hearsay: In cases where the statute only says that the tribunal should act upon evidence, the general view is that this entitles it to consider logically probative
hearsay.
 Disciplinary proceedings are closer to the model of a criminal trial normally requiring proof beyond a reasonable doubt, identification, and adverse inference
directions. There have been cases, however, where the civil standard of proof was approved. Sometimes the right to cross-examine has even been denied.
 As the issue departs further and further from a model of criminal prosecution, the likelihood of applying such rules diminishes.
 E.g. In the case of local inquiries of planning matters (I don’t know what this means) Lord Diplock simply required the inquiry to be fair, even stating that the
right to cross-examine might be unfair, given the absence of professional lawyers who know how to use rule of evidence in the interests of their clients
 Usually the powers to administer and apply an oath must be endowed by statute
 The purposes and position of the legislative committees are so far removed from a court that quite a different set of rules apply. Even solicitor-client privilege
might be abrogated.
 Also where the inquiry is essentially governmental, there may be no need to claim immunity on the basis of public policy
 Appellate processes often take the form of judicial review and therefore there are strict limitations on the admissibility of fresh expert evidence
Dufraimont, Evidence Law and the Jury: A Reassessment (p. 459)
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Common law of evidence is counterintuitive because it seeks to facilitate the search for truth by regulating fact-finder’s access to and evaluation of
evidence (intrinsic rules)
 [Extrinsic rules, which restrict certain types of evidence for reasons OTHER than the search for truth, are pretty obvious]
Orthodox explanation: this was a form of judicial control over the jury  prevent jury error
This view has been criticized
Other possibilities:
 Designed to promote the search for truth within the context of the adversarial system
 Designed to manage the risk of witness dishonesty
Author’s view: no single set of principles explains it
 Jury-related rationales are most persuasive where there are solid reasons to believe that juries would have trouble evaluating the particular form of
evidence at issue social-science research suggests there are specific types of evidence where this is an issue
 Thus, whether a particular rule can be justified on jury-control grounds depends on the specific competencies required to evaluate that form
of evidence, together with what we know about jury psychology and behaviour
ii) Rules Which Concern the Use of Documentary Evidence
A document is any sort of information which is inscribed or recorded on medium, whatever the nature of this medium. It is information we are asking the
adjudicator to read.
 Example: II am adducing a bottle of water because I want the adjudicator to read the label and draw conclusions from the label the bottle of water is
considered to be a document.
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
On the other hand, if I am submitting the bottle to show that it is plastic, then the bottle is real evidence. The fact that there is stuff written on it becomes
irrelevant. The judge is using his senses to draw conclusion (i.e. looking, feeling, smelling).
Key point: You look to the purpose!.
There is a clear tendency to broaden the definition of a “medium” in order to include not only papers but also electronic support…
Art 2837 CCQ para 1: “A writing is a means of proof whatever the medium, unless the use of a specific medium or technology is required by law.”
FRE 1001(1): “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.
a. The Civil Law Tradition’s preference towards documentary evidence to prove juridical acts
C.C.Q.: Art. 2860 par. 1, 2861 (together with 2837 (1 par.)), 2862 (together with Art. 1525 (3 rd par.)), 2865, 2867 (together with 2850), 2868 (together with
2854)
st
One of the key features of the civil tradition is the great importance afforded to documents. This is due to a general CVL rule requiring that juridical
acts, as opposed to juridical facts, be proved using ONLY documentary evidence.
Juridical Act:
• “A manifestation of intention by one or more persons which occurs with a view to producing certain legal effects.”
• A juridical act is one accomplished by a person who consciously marshals a legal institution (Brierley & Macdonald)
o E.g.: a contract, a will, a waiver, an offer to contract, payment (i.e. the voluntary performance of an obligation)
Juridical Facts:
• Occurrences to which the law attaches legal effects (that’s why they’re juridical) that were not intended by those involved
• E.g.: death, majority, fault (contractual or extra-contractual), causation, prejudice
• These acts are not done with a view of producing the consequences that the law attaches to them.
Search for truth rationale
• Typically in a civil law tradition, there are no rules limiting the use of facts by the judge.
o So, the rules limiting the kind of evidence that can be used in order to prove a juridical act is surprising.
• Substantive law is not really concerned with formality, yet, the law of evidence will require you, if you want to prove that a K was concluded, to adduce
documentary evidence.
• This rule is justified by truth considerations.
• Yet, such a restricted use of evidence will have costs on the search for truth. There will be cases where a court will come to the wrong conclusion
because one of the parties was unable to resort to testimonial evidence to prove a juridical act which truly occurred.
• However, the civil law thinks these costs on accuracy are less important than the greater risks that fact finders be led to wrong conclusions in considering
testimonial evidence. Civil law is so suspicious of the reliability of testimonial evidence, that it excluded it thinking truth would be better served without it.
The civil law expresses its preference towards documentary evidence to prove juridical acts through two fundamental rules:
1. A party to a juridical act must prove that act using documentary evidence only.
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2.
The prohibition of testimonial evidence aimed at contradicting or varying terms of documents setting forth juridical acts.
1. The general requirement that juridical acts be proved with documentary evidence
The CCQ has implemented this rule in a slightly different way.
2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1,500.
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.
•
•
Art. 2862 only prohibits the use of testimonial evidence, which means you can prove a juridical act using other documentary evidence or real/material
evidence. This is one indicator of a tendency in civil law jurisdictions to limit the scope of the traditional rule.
There are so many exceptions to this rule that it is questionable how firm a rule it is
There are six exceptions to this rule:
(1) Does not apply if juridical act sought to be proved by or against third party
(2) The rule doesn’t apply if the amount in dispute is less than $1500. (CCQ 2862 al. 1).
(3) Businesspeople can’t invoke the rule in their commercial matters: testimonial evidence is allowed against someone who was carrying out their “ordinary
course of business.” (CCQ 2862 al. 2)  see art. 1525
(4) The rule doesn’t apply if there is a “commencement of proof” (CCQ 2862 al.2). [quite important in practice]
(5) Does not apply f it was impossible to record the juridical act in a document at the time it was made, for a valid reason (CCQ 2861)
(6) Does not apply if the contract:
 was originally made in writing, and;
 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 (Art. 2860)
 [In this case, a different regime is applied – see below]
(1) Does not apply if juridical act sought to be proved by or against third party
(2) The rule doesn’t apply if the amount in dispute is less than $1500. (CCQ 2862 al. 1).

This is not so relevant in practice and it is not a very important indicator of the evolution of the rule
(3) Businesspeople can’t invoke the rule in their commercial matters: testimonial evidence is allowed against someone who was carrying out their “ordinary
course of business.” (CCQ 2862 al. 2)
 This “free proof in commercial matters” is justified on efficiency grounds; business is facilitated if there are fewer formalities.
 “Ordinary course of business” is “(t)he carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature,
consisting of producing, administering or alienating property, or providing a service, constitutes the carrying on of an enterprise.” (CCQ 1525 al. 3)
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(4) The rule doesn’t apply if there is a “commencement of proof” (CCQ 2862 al.2). [quite important in practice]
 That is, if there is some other proof that gives the party’s claim as to the juridical act an air of reality (the way the sign on the office door did for
Guérin’s employment contract)
 Bachand: this could apply to a verbal admission made by the adverse party to a third party (but what about hearsay?)
 Once this is established, the party is free to use testimonial evidence just as he pleases!
Guerin v. The State Life Insurance Co. (QSC, 1911), p. 141
Facts
Issues
Holding
Ratio




Guérin (G), is suing The State Life Insurance (S) for $1, 200 of unpaid wages.
S sent two agents to Montreal to open a new branch of S.
G was hired as medical superintendent (‘surintendant’).
The agents asked G to take out an insurance policy from the company for $10,000, which he did, and they then inscribed his name and position
on his office door.
 G claims that he and S’s agents agreed to a convention, sous seing privé, where he would be paid 100$/month for his work. He worked there and
was known as the medical superintendent.
 However, having not received the promised pay, after having asked for it, he asked his name to be taken off the door, and did nothing more for
the company.
 The company refused to pay him because they say their agents made no salaried agreement with G. G has a letter from S’s agents saying that
when they appoint a chief medical vice-examiner it will be G.
Is G’s testimonial evidence as to the existence of the salary convention admissible?
Yes
 The testimonial proof of their agreement in this case is admissible because it is supported by many commencements de preuve in writing.
 General Rule favouring documentary evidence – and excluding testimony – does not apply if in the evidentiary record there is a
commencement of proof.
 Prohibition ceases to apply the minute there is some evidence from the party against whom you want to prove the juridical act that makes it
possible for that juridical act to have been executed. Thus, you can’t prove juridical act by testimonial evidence only, but the testimonial
evidence makes the juridical act more likely.
 Here – commencement of proof was the plaque on his door – thus he could testify
Now, the commencement of proof can result from an admission or a writing of the other party.
CCQ 2865
A commencement of proof may arise where an admission or writing of the adverse party, his testimony or the production of a material thing
gives an indication that the alleged fact may have occurred.
So: 2862 + 2865  the prohibition on proving a juridical act through testimonial evidence ceases to apply if there is:
i)
anything emanating from the other party
or
ii)
real evidence (irrespective of who it emanates from)
…that “gives an indication that the alleged [juridical act] may have occurred”
CCQ 2867
CCQ 2850
An admission made outside the proceeding in which it is invoked is proved by the means admissible as proof of the fact which it asserts.
An admission is the acknowledgement of a fact which may produce legal consequences against the person who makes it.
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This exception means that testimonial evidence can’t be the only evidence used to prove a juridical act.
(5) If it was impossible to record the juridical act in a document at the time it was made, for a valid reason (CCQ 2861)
• One example of this is the passive lease (“bail par tolérance”) because by definition, this kind of contract must be implicit.
• Judges have also interpreted 2861 as a residual discretionary power to waive the prohibition on testimonial evidence.
• They broadened the concept to include social or “moral” impossibility
 In certain situations, such as contracts between family members, courts have held that it would be unrealistic to expect documentary evidence
because it’s impossible for people to be rude enough to require the agreement to be made in writing
 Broadly interpreted by courts: contracts between members of the same family, close friends, work colleagues, etc. (“impossibilité morale)
CCQ 2861
Where a party has been unable, for a valid reason, to produce written proof of a juridical act, such an act may be proved by any other means.
CCQ 2868
Proof by the production of a material thing is admissible in accordance with the relevant rules of admissibility as proof of the object, the fact or
the place represented by it.
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.
CCQ 2854
(6) Does not apply if the contract:
 was originally made in writing, and;
 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 (Art. 2860)
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
CCQ 2860
it.
(al. 1)
 Bachand: this is the codification of the “best evidence rule: a typical CML rule
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,
CCQ 2860
proof may be made by any other means.
(al. 2)
 This is different from 2861, which deals with situations where there was NEVER a contract: in this case, there WAS a contract, but it has been lost,
destroyed, etc.
CCQ 2860
(al. 3)
In the case of technology-based documents, the functions of the original are fulfilled by a document meeting the requirements of section 12 of the
Act to establish a legal framework for information technology and the functions of the copy replacing the original are fulfilled by a certified copy
of the document meeting the requirements of section 16 of that Act.
2860 prevails over 2862 – really a completely separate legal regime, rather than an exception:
E.g. K is initially included in writing
 At this point, the legal analysis can EITHER go through 2860 or 2862
 If the K was lost through the plaintiff’s negligence, then 2860 MUST apply: in this case testimonial evidence is inadmissible EVEN IF THE CASE
FALLS INTO ONE OF THE OTHER EXCEPTIONS TO 2862! (commencement of proof, course of business, etc.)
Bachand: when it is unclear what the rules are saying, look at the underlying policy objectives (search for truth, etc.)
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Should also think whether all these specific rules are necessary
Key Point: These exceptions reflect a contemporary movement to get rid of limits on the use of testimonial evidence. Shows how narrow this prohibition is and
that it has been interpreted very broadly.
2. The prohibition of testimonial evidence aimed at contradicting or varying the terms of documents setting forth
juridical acts
If there is a document set forth in writing, this rule specifies that you should stick to the document and cannot use testimonial evidence to vary the terms of the
document.
Art. 2836. Writings contemplated in this section may be contested in any manner.
Art. 2863. The parties to a juridical act set forth in a writing may not contradict or vary the terms of the writing by testimony unless there is a commencement of
proof.
Art. 2864. Proof by testimony is admissible to (1) interpret a writing, (2) to complete a clearly incomplete writing or to (3) impugn the validity of the juridical act
which the writing sets forth.
Art. 2865. A commencement of proof may arise where an admission or writing of the adverse party, his testimony or the production of a material thing
gives an indication that the alleged fact may have occurred.
Art. 2862. Proof of a juridical act may not be made, between the parties, by testimony where the value in dispute exceeds $1 500.
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.
Essentially, the rule is that the parties to a juridical act cannot testify to the contrary because they should be held to the writing expression of their intention. If
parties conscious of the need of a writing produce one, and a dispute arises, they will be prevented from contradicting the writing by testimonial evidence.
• This rule is typical of, but not particular to, the CVL tradition. It is similar to the parole evidence rule in CML.
However, there are six exceptions to this rule.
(1) It does not apply if there is a “commencement of proof” (art. 2863)  definition of commencement of proof art. 2865
 E.g. if you get your hands on a letter that emanates from a party that makes it possible the terms of the contract do not reflect the terms of the juridical
act, then you will be allowed to produce testimonial evidence.
 This exception did not exist in the previous code, so the scope of the original rule was narrowed by this new provision. This shows a growing
scepticism.
(2) It does not apply where the document is clearly incomplete
 This exception was nowhere to be found in the previous code, but actually had emerged in the case law
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
Example: Parties signed a lease using a standard form K and they omitted to fill the space for the amount of the lease.
o Testimonial evidence would be accepted because the document is clearly incomplete.
o This is because practice tells us that normally, the fact that there is nothing inscribed in that part of the document probably does not mean that
the parties made no agreement.
o The omission does not accurately reflect the true terms of their agreement.
(ii) The other exceptions in 2864, according to Bachand, are not real exceptions because they have nothing to do with contradicting the terms of the
document.
(3) It does not apply where testimony is used to interpret a writing
 Not a real exception, selon Bachand, according to Bachand, because it has nothing to do with contradicting the terms of the document.
 Interpretation is not meant to contradict the terms, but to clarify them. You are allowed to bring testimonial evidence when you want to establish the
parties’ understanding of that clause.
 Problematic in practice, however, since it is difficult to draw a hard line between interpreting old terms and adding new terms
 There will be a tendency for courts, when in doubt, to favour the characterisation of the parties’ behaviour as relating to the interpretation.
o This is because some parties feel that they need to adduce testimonial evidence in order to have their day in court, the judges will tend to find in
favour of that.
(4) It does not apply where testimony is used to impugn the validity of juridical act
 Not about contradicting the document, but rather impugning the fact of consent (as by duress, fraud, impaired consciousness, etc.)
 Bachand: not really an exception  the plaintiff is not taking issue with the terms of the contract, but trying to prove that the contract has no effect at
law
 QC courts have interpreted this exception very broadly/liberally so as to allow for testimonial evidence to prove error not only to establish the existence
of the entire contract but that a particular provision fails to correspond to a parties’ actual intention.
o Bachand thinks this is crazy. If you do this, then 2863 is useless. If parties can use it to contradict things that they would not have agreed to,
then the provision loses all its purpose. It’s your responsibility to look over what you are signing.
 This is a good indicator that judges are trying to restrict the scope of the prohibition of testimonial evidence (let more testimonial evidence in)
o This is difficult to justify in light of positive law
o Another clear indicator of the contemporary evolution of the role of the judge
(5) It does not apply to unsigned writings (“other writings” under arts. 2831-2836)
 Art. 2836: Writings contemplated in this section may be contested in any manner.
(6) It is overridden by art. 263 of the Consumer Protection Act:
 “Notwithstanding article 2863 of the Civil Code, a consumer, when exercising a right provided by this Act, may make proof by testimony, even to
contradict or vary the terms of a writing, to establish that this Act has not been complied with.”
Fact pattern
Facts: Prof and Nicolas sign a document that contains a delivery date. Two months later he wants to convince the court that there has been a second K later on in
time, concluded orally, through which the first K has been modified.
Issue When you are trying to prove the second K, are you trying to contradict the first one, so that testimonial evidence should be allowed?
Discussion:
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 One argument: No, because the first K was extinguished when the second one was concluded.
 Other argument: Art. 2862 would apply here; art. 2863 would not apply here because you are trying to prove a second juridical act and so we have to go back
to the basic rule that 2862 prevents you from proving a contract with testimonial evidence. You need a document.
Valuex Inc v. Richmond Transport Inc (QCCA, 1980), p. 367



Valuex and Richmond sign K1: Richmond to deliver merchandise to Alloys
R then alleges that R and V subsequently agreed (verbally) that merchandise be delivered to a different destination (Canadian Ingersoll)
R seeks to adduce testimonial evidence to prove that merchandise was to be delivered to C. I.
Is the testimonial evidence admissible?
 Valuex argued that this was a 2863 case, and so testimonial evidence not admissible: trial judge accepts this
 However, C.A. goes with R: says that this was a brand new (verbal) contract
o The testimonial evidence is not being used to contradict the terms of the writing, rather, it is being used to support his version of the terms of
the (new) JURIDICAL ACT (and this is not prohibited by 2863  it only prohibits attacking the written terms with test evidence)
 But doesn’t this alow Valuex to argue on the basis of 2862 that R must produce a written document to back up his version of the contract?
o NO! This was clearly a “juridical act carried out by him in the ordinary course of business of an enterprise” (2862(2))
Point: A party can get around 2863 CCQ by establishing that a second (new) agreement was made.
Toronto Dominion Bank v. 9045-1287 Québec inc. (QCSC, 2006)


Testimonial evidence adduced in an attempt to establish that guarantors’ liability for debts of the corporation was – contrary to what documents
suggested – limited to 20%
Prevented under 2863, unless exception applies!
o Interpretation of agreement? NO – Def. are seeking to change terms, not merely interpret
o Commencement of proof? NO – very strict application of this exception
 Guarantors pointed to an earlier invoice sent by the bank that billed the guarantors for a fifth of the debtors’ liability: seemed to
suggest that the bankers themselves only considered the guarantors to be liable up to this level
 However, probability, not possibility, is the standard; here none of the facts to which Defendant pointed “clearly indicated that the
extend of the Guarantors’ personal liability was reduced to 20%”
 Bachand: this is way too strict: the commencement of proof only needs to give an air of reality; commencement of proof
should not require actual proof of the contention to be proved!
o If it requires proof on the balance of probabilities, then it can have no sense at all!
 The words “clearly indicate” don’t appear in art. 2865!
 The courts cite a 1924 case…but this case dealt with art. 2863
o Bachand believes that the less strict language used in 2865 was a deliberate attempt by the legislator to tone down
the test, and the courts have ignored it
Lloyd’s of London v. Pécherie Nicole Desois
Jurisdiction
Facts
QCA – 2004
 Refusal to pay out insurance policy. Insurer claims that insured no longer owned the boat that was insured.
 Insured completed form called “acte de vente” with regard to the boat, including name of buyer and price
 Acte sent to registry, arrived the day after boat sinks while in possession of buyer. Still, however, in Plaintiff’s name.
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Issues
Holding
Ratio



 Reclaim insurance putting buyer as captain.
Can the Plaintiff testify with regard to this acte de vente?
Yes
 Court upholds validity of CCQ 2863 but indicates that, pursuant to 2nd exception in CCQ 2864 D had right to “mettre en prevue d’autres fait
contemporains…pour tenter de “compléter un écrit””
 Plaintiff did not want to contradict the terms of the juridical act but rather to say that the act was not intended as it was being employed by the
Defendant.
 Also, there was a commencement of proof. D had put in evidence statements of “captain” and agent of the vendor – thus their testimony would
be allowed.
 Interpretation was – no transfer yet – would have been done by notarial act and money was only going to be transferred by bank upon that act.
Looking at terms of this contract, everything points to a K of sale but party says this is not a K of sale but is an early agreement. CA characterizes as a K
of sale….but allow testimonial evidence from the party to show that the party’s true intention was not to marshal a K of sale.
Invokation (though not super clear) of the interpretation exception in art 2864 to the meaning of the K of sale and really as to whether it is.
Illustrates the trend to interpret in a liberal manner exceptions such as, in this case, “interpret” exception in art 2864.
3. Types of Documents that Can Be Used to Prove Juridical Acts
In a typical civil law system, the law will afford special probative value to certain documents that set forth juridical acts
 When fact-finders are presented with such documents, they are compelled to find that proof of the alleged juridical act has been made.
 They are not free to draw from the evidence whatever inference seems reasonable.
o Thus, this is an exception to the general discretion of free proof of fact-finders
 These are necessarily documents created at the time the juridical act was concluded
A general distinction will be drawn between three categories:
(i)
Notarial acts (docs. setting forth juridical act that meet a number of formal requirements + were received by competent notary)
(ii)
Private writings (acte sous sein privé) (docs setting forth juridical act + which are signed by the parties)
(iii)
Other writings (unsigned docs setting forth juridical act)
For each of these three categories, we will be looking at 3 things: 1) characterization; 2) probative value and 3) contradiction.
i) Notarial Acts
1) Characterization: In order to qualify as a notorial act, a document must set forth a juridical act and:
(a) Have been received by a notary, according to art 2813 (1).
Art 2813 (1) 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”.
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(b) Have been signed by the parties.
Art 2819 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.
Where the parties are unable to sign, their declaration or consent shall be given before a witness who signs. Minors, persons of full age who are unable to give
consent and persons who have an interest in the act may not be witnesses.
(c) Satisfy the formalities set out in the Notaries Act.
2814 (6) CCQ: Notorial acts are considered to be authentic provided they conform to the requirements of the law.
Notaries Act, p. 65 C.B.
- Art 10: A notary is a public officer. This provision also states his mission.
- Art 11: Duty of impartiality
- Art 43: A notary has the obligation to verify the identity, quality and capacity of each party to a notarial act to be signed before him.
- Art 45: Notorial acts shall be written in ink of good quality, typewritten or printed, legibly and permanently….
- Art 50: A notorial act shall be closed by the signatures affixed in the presence of an officiating notary by the parties and the witnesses required in the matter,
and by the signature of the officiating notary, which must be affixed on the date and at the place of the signing by the last of the parties to do so.
- Art 51: Before it is signed, the notorial act must be read aloud to each of the parties by the notary or by a third person appointed by the notary.
- Art 53: A notorial act must contain the signature of the parties
Art 2813 (2) CCQ Presumption of authenticity- “Every act whose material appearance satisfies such requirements is presumed to be authentic”.
The presumption is rebuttable and it has to be so because in extreme circumstances, a person needs to be able to argue that the document was forged or can
contest the competence of the notary. A party can resort to any type of evidence to rebut this presumption.
2) Probative Value
Art 2818 CCQ : “The recital, in an authentic act, of the facts which the public officer has the task of observing and recording makes proof against all persons”.
Art 2919 CCQ: “To be authentic, a notorial 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 notarial act makes proof against all persons (not just the parties) of three types of info:
1.
The juridical act which it sets forth in the act (2819),
–
I.e. parties’ consent to execute juridical act + terms thereof
2.
Facts stated by parties in declarations made in the notarial act which directly relate to the juridical act (2819)
– E.g.: I declare that I am duly authorized by XYZ Inc. to enter into this agreement on its behalf
– This is not a “term” of the transaction (unlike price, etc.), but rather a fact closely associated with the transaction
– This declaration could be used as evidence in a completely different case that has nothing to do with the initial transaction
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3.
Facts stated in the not. act that the notary had task of observing or recording when juridical act was executed (2818) (other than
consent to juridical act + terms thereof)
–
Which “stated facts” fall in this category is determined by reference to Notaries Act
–
Examples include: identity of parties and their address, date & place of execution of juridical act
Recall: general principle is that adjudicators have discretion to draw what conclusions they will from evidence put forward
o Thus, the following rules are derogations from this general principle
o However, the obligation imposed on the adjudicator is not absolute.
o It is possible for the parties to adduce evidence seeking to contradict the terms of the juridical act and declarations under certain conditions.
o Thus, we can think of it as a rebutable presumption.
3. Contradiction
Contradicting the terms of a notarial act is possible, but:
 If the gist of the argument is that the document incorrectly reports facts that the notary had the task of personally observing, a special procedure-improbation--is required (2821)
o Thus, this process is required when you are attacking quality of the notary’s work.
o Again, duties set out in Notaries Act:
 Examples:
 Identity of parties (but not their occupation/address/marital status -- not notary’s duty to double-check this)
 Parties’ declarations re: consent + terms of juridical act
 Place, date and time of notarial act’s execution
 In Quebec, both courts and authors agree that once the improbation is launched, arts. 2863-2864 are no obstacle to a party’s
attempt to use testimonial evidence.
o This makes no sense – why abandon the policy justifications restricting testimonial evidence (2863) in this situation
specifically? (however, testimonial evidence probably won’t be much use anyway – notary’s words carry a lot of
weight)

If gist of argument is that document incorrectly reports facts that notary did not have task of personally observing, no improbation necessary; general
rules (*incl. 2863-2864) apply
o e.g.: Salomon, “real” sales price
If challenge not to terms of the notarial act per se, no improbation
 E.g.: consent vitiated
Art 2821 CCQ: Improbation is necessary only to contradict the recital in the authentic act of the facts which the public officer has the task of observing.
Improbation is not required to contest the quality of the public officer or witness or the signature of the public officer.
What is improbation?
 Improbation is a procedure through which the notary is notified of someone’s intention to attack the validity of the notorial acts.
 The notary will be given the opportunity to come to court, and answer to the accusations made by the parties.
 It makes sense that he should be able to provide the court with his version of what really happened, because we are attacking the quality of his work.
 Improbation opens up like an incidental proceeding in the trial.
 Courts give a lot of weight to what the notaries say. Practically, when faced with conflicting testimonials, they will give more weight to the testimonial
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of the notary.
Salomon provides us with a clear definition of what is improbation and when it applies.
Salomon c. Pierre-Louis, p. 297
Jurisdiction
QCA 2001
Facts
 Plaintiffs (appellants) filed an action in the Superior Court to be declared co-proprietors of a building with the defendant, saying they had
a partnership
 The defendant had acquired the building from TD Bank by a notarial act that the plaintiffs weren’t party to
Issues
1. Can the plaintiffs attempt to establish co-ownership through testimony?  YES
2. Do they have to go through an additional process of improbation?  NO
Ratio
 Improbation is only required where the parties are calling into question the conformity of the notarial act with the representations
made by the parties  NOT when calling into question the truth of those representations
o Thus, improbation is not an issue
 Only the parties to a juridical act are restricted by art. 2863 in contradicting it, and the plaintiffs were not parties to the act in question,
o Thus, art. 2863 is not an issue
 The relevant fact in this case is the absence of any connection between the defendant and the plaintiffs
 Issue of 2862, however: aren’t the plaintiffs trying to prove a juridical act with testimony?  not addressed at all in the case
Other “Authentic” Acts
 Notarial acts part of broader category (authentic acts) which comprises all documents received by a public officer who has a duty to confer authenticity
to certain documents
 2814 CCQ lists other documents (public docs) which are “authentic” is the sense that:
o They make proof of information that the public officer had duty to observe or record (2818 CCQ)
o Improbation necessary to challenge terms relating to facts that the public officer had duty to personally observe; eg:
 Improbation not necessary to challenge statement on birth certificate re: date of birth
 Officer has no duty to personally observe date of birth; only to assemble other documents that attest to it
 Improbation is necessary to challenge date of decision mentioned in court record

2814 list not exhaustive, but courts will not lightly characterize a document as “authentic”: Bertrand Durand
Bertrand Durand inc. v. Aribec, p. 53
Jurisdiction
QCA 1995
Issues
At issue is whether affidavits made by oath-takers are part of the class enumerated in CCQ 2814 (authentic acts) and whether they can be subject to
improbation.
Holding
Docs by oath-takers not considered authentic acts in 2814, though list is not exhaustive.
Ratio
 Rejects the idea of affidavit being authentic act.
 Courts will tend to consider that questionable docs do not fit into this category. No express statement that commissioner of oath (who takes
statement in affidavit) is public officer as per 2814.
 The list in CCQ 2814 is not exhaustive (“in particular…”)
 However, the list enumerates public documents, and it does not make sense that affidavits be included (by the ejusdem generis rule).
 Caution is typical of when court is asked to broaden something.
 Courts are very reluctant to recognize that other documents can also be authentic because of special weight and probative value. The list is quite narrow, and
chances of getting it lengthened are slim.
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ii) Private Writings (Actes sous seing privé)
Private writings are a second category of facts with respect to which the discretion of the adjudicator is restrained.
1) Characterization of Private Writings
Documents setting forth juridical act and signed by all the parties to the juridical act, but that don’t meet formal requirements to qualify as notarial act
 Note that this not only applies to acts where no notary was present, but also notarized acts that fail to meet requirements in some way (e.g. if it turned
out the notary’s license had expired the month before: the act wouldn’t be a nullity, but it would be classified as a private writing)
Art. 2826 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.
Art 2827 CCQ: 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.


Note that signature should be construed broadly: PINs or passwords in electronic documents also count
No presumption of authenticity: in theory, authenticity of signatures must be proved by party seeking to rely of private writing
o But in practice most often admitted by the opposing party
o See also: Art. 2828, 2nd par.: “Where a writing is set up against the person purporting to have signed it or his heirs, it is presumed to be
admitted unless it is contested in the manner provided in the Code of Civil Procedure.”
2) Probative Value of Private Writings
Art 2829 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 the statements of
the parties directly relating to the act.
Once the conditions are met, a private writing makes proof in respect of the persons against whom it is proved, of two things:
1) the existence of the K, and;
2) the statements of the parties directly related to the act.
Art. 2830 CCQ: 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.
Typical exception, to avoid fraud: “it does not make proof of date of juridical act against third parties” (2830 CCQ)
 This relates to the date on which the transaction was concluded
 This is important, since it prevents innocent third parties from having to bring proof against fraudsters who illegally back-date contracts (to avoid
seizure of their assets, for example)
o E.g. debtor’s luxury car is seized by a creditor seeking to execute a judgment
 Debtor concludes a document for sale for the car (to his brother) that is backdated 3 months before the seizure
o E.g.: C.D.I. Industries case
 Exception at 2830, 2nd par. re: writings made in the ordinary course of business (see art. 1525) are “presumed” to have been made on date they bear
Contradicting the terms of private writing? Of course this is possible – without improbation, naturally – subject to 2863 CCQ
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CDI Industries is a good example of when this rule practically applies and makes a difference.
Dans l’affaire de la faillite de : C.D.I. Industries Inc. (9037-1006 Québec Inc.) (QCSC, 2003)
Facts:
 Debtor gives away property gratuitously by a dated act
 Creditor alleges the act could not have been made at that date
 Court finds for the creditor
Reasoning:
 2829 and 2830: private writings make proof of their contents, except the date, unless the acts were created in the course of business
 The juridical fact in question did not relate to the course of business
 Thus, the date is not proven in the act itself
 The preponderance of the evidence is rather that the act couldn’t have been prepared at the date it mentions (goes through this evidence)
3) Contradiction
 Improbation is not necessary to contradict private writings because there is no notary or public officer.
 Parties are free to contradict private writings subject to the limits concerning testimonial evidence (art. 2863-2864 CCQ)
iii. Other writings
1. Characterization of Other Writings
 This category refers to documents that set forth the juridical acts but that are neither notorial nor private writings
 Parties in practice may have expressed their consent in writing to a contract without ever having signed the document
 E.g. emails, faxes
 E.g. unsigned contracts: parties expressed their consent to enter into contract in writing but never actually signed anything
 E.g. pay stubs from an employer
 Party invoking it must establish identity of author (2835), so like private writings, there is no presumption of authenticity
2. Probative Value of Other Writings
 Generally, there is no special rule regarding the probative value of “other writings”, so the fact-finder’s assessment is not constrained in the way it is
with the other types of documents (left to the discretion of the judge).
 There is an exception to this rule in Quebec at art. 2831 CCQ.
Art. 2831 CCQ: An unsigned writing regularly used in the ordinary course of business [see art. 1525] of an enterprise to evidence a juridical act makes proof of
its content.




This is a rule of probative value that applies to documents that are used in the ordinary course of business. (e.g. a bill from Future Shop)
The tricky thing is when for instance no document is created at the time of the sale, but you create one afterwards
The document that you create after is actually hearsay, it’s your own written testimony about what happened in the past.
This is why there is a business exception for hearsay!
3. Contradiction
There is no limit to the evidence you can resort to in order to contradict a document that qualifies as “other writings.” Thus, 2863 does not apply (even
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testimonial evidence can be used)
Art 2836 CCQ: Writings contemplated in this section may be contested in any manner.
See also art. 2835 CCQ: “A person who invokes an unsigned writing shall prove that it originates from the person who he claims is an author”
Bachand: in an age where litigation is already too expensive, do we really need all these technical rules of evidence that provide so many opportunities for
parties to escape their obligations on technicalities? None of this applies in the (increasingly popular) arbitration format
b. The Common Law’s Traditional Approach to the use of Documentary evidence to Prove “Juridical Acts”



The distinction between juridical acts and facts is unknown to CML
o Although similar distinctions arise in particular areas of the common law, there is no overall classification.
Common law doesn’t give any special treatment to what CVL calls juridical acts.
Many of the CVL rules we’ve seen have no functional equivalent in CML.
o Rules on documentary evidence occupy only a small part of CML of evidence—whereas they make up a huge part of the CVL on evidence.
o There is no requirement that contracts be proved in writing.
o There are no rules regulating the probative value of documents
o No such thing as notarial acts
o No functional equivalents to the rules re: probative value of public docs alluded to at 2814 CCQ (more later)
o The idea of the finder of fact being compelled to draw certain conclusions has no equivalent in CML
Common law’s regulation of documentary evidence: 2 key rules
 Best Evidence Rule
 Parol(e) Evidence Rule
1. The best evidence/ “original document’ rule (also applies in CVL)
The best evidence rule is typical of CML tradition.
 It is not a rule of public policy, therefore parties can waive it. They often will agree on the way to prove the contents and authenticity of the documents.
o As a result, if the parties don’t raise the rule, then the judge cannot raise proprio motu objections to the presentation of evidence on its own
motion1
 It is better thought of as the “original document rule”, which means that the parties should use the original and not the copies to prove the content of a
document. Thus, its impact is narrower than what may seem at first sight.
 Motivated by search-for-truth considerations: easy to have errors in copies (this is less of a consideration now than in the past)
1
This is true for basically all the rules of evidence except the ones we will be looking at the end of the course. In that special case, it makes sense to expect form courts that they
ensure their compliance because they are grounded in very deep public policy rationales.
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
Note that the rule only applies to the CONTENTS of the document; if you are only trying to establish the existence of a document, the rule doesn’t
apply
o Makes sense: less chance for error in the search for truth
US FRE 1001:
For purposes of this article the following definitions are applicable:
(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or
issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other
output readable by sight, shown to reflect the data accurately, is an "original".
US FRE 1002:
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.
In Québec, the best evidence rule is codified at Art. 2860 of the CCQ:
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. [detail on what this means for electronic documents]
The rule has a double effect:
 It renders inadmissible copies as a means to establish the content of the document
 It renders inadmissible any other evidence relating to the content of the document (thus no testimonial evidence for instance)…
Originally, the best evidence rule is based on a search for truth rationale. It was thought there was a risk that an inaccurate copy of a document would lead to
inaccurate factual conclusions.
 Like many other rules aimed at elucidating truth, the scope of the best evidence rule is becoming increasingly narrow.
 Obviously a lot of exceptions are needed to prevent injustice
 Seen as somewhat archaic today, and courts are generally quite generous to litigators trying to fit themselves within these exceptions
There are lots of exceptions
1. General exception for good faith inability to produce document
2. Specific exceptions for side issues or inconvenient documents (e.g. monument inscriptions)
3. Statutory exceptions for public documents
4. New catch-all exceptions (including for private documents)
1. General exception
 Traditional exception: inability to produce document, despite good faith and dispatch (2860, para. 2 CCQ; 1004 US FRE)
o This is known as the “impossibility exception” and is typical of all common law jurisdictions. It has emerged to compensate for the initial
harshness of the best evidence rule.
 In Quebec law, it is in the second sentence of art 2860(2): “However, where a party acting in good faith and with dispatch is unable to produce the
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
original of a writing or a copy which legally replaces it, proof may be made by any other means”
In US law, it is found in art. 1004 of the US FREE.
US FRE 1004. The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible if
(1) Originals are lost or destroyed. All originals have been lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(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.
2. Specific exceptions
 The rule only applies if the content of the document is the primary issue in litigation. In cases where the contents of the document are not really
the issue in debate and are merely a secondary issue, the best evidence rule does not apply.
o Art 1004 (4) US FRE: The original is not required, and other evidence of the contents …is admissible if the writing, recording or photograph is
not closely related to a controlling issue”
 The rule would not apply when to require strict adherence to it would be too inconvenient
o For instance, we allow testimony for the inscription on an object, whenever the inscription is not on a support than can easily be brought to court
(inscription on a building)
3. Exceptions for official/public documents
 Canada Evidence Act, s. 23 ff
o Covers court records, government records, etc.
 US FRE, Rule 1005: broad exception for official records
 CCQ 2860 mentions “a copy which legally replaces it.” This must be read with 2815-2817, 2820
o 2815 empowers public officers to attest to the authenticity of copies.
o 2820 says that “an authentic copy of a document makes proof against all persons of its conformity to the original and replaces it.”
CCQ 2815
CCQ 2820
A copy of the original of an authentic act or, where the original is lost, a copy of an authentic copy of the act is authentic if it is attested by the
public officer having custody of it.
An authentic copy of a document makes proof against all persons of its conformity to the original and replaces it.
An authentic extract makes proof of its conformity to the part of the document which it reproduces.
4. New catch-all exceptions (including for private documents)
 In addition to these specific, rather limited statutory exceptions relating to governmental records, there are also general exceptions that provide that copies
are allowed unless the authenticity of the document is at issue.
o US FRE 1003: A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
o Civil Evidence Act (UK, 1995), s. 8-9: allows court to approve copies that have been replicated in a way that “the court deems sufficient”


This essentially delegates to federal judges discretion to allow copies to prove the contents of a document where it would not be unfair to strictly apply the
best evidence rule (i.e. provided that the copy has been authenticated in any manner that the court deems appropriate).
o This delegation of discretion is in line with a growing trend in evidence law
2841-2842 CCQ articulate a broad exception allowing parties to make use of copies if they have been authenticated (i.e. if the copies have been made in
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such a way as to ensure their accuracy)
CCQ 2841. A document may be reproduced either by generating a copy in the same medium or in a medium that is based on the same technology, or by
transferring the information contained in the document to a medium based on different technology.
Where it reproduces an original document or a technology-based document fulfilling the functions of an original as provided for in section 12 of the Act to
establish a legal framework for information technology, a copy, provided it is certified, or a document resulting from the transfer of information, provided it is
documented, may legally replace the reproduced document.
In the case of a document in the possession of the State, a legal person, a partnership or an association, certification is effected by a person in authority or the
person responsible for document retention.
CCQ 2842. A certified copy is supported, if necessary, by a statement establishing the circumstances and the date of the reproduction, attesting that the copy
contains the same information as the reproduced document and indicating the means used to ensure the integrity of the copy.
The statement is made by the person responsible for document reproduction or by the person who reproduced the document.
A document resulting from the transfer of information is supported, if necessary, by the documentation referred to in section 17 of the Act to establish a legal
framework for information technology.
Canada Evidence Act:
S. 23-26, 29-30(3)
23 – Evidence of Judicial Proceedings – Evidence of any proceeding or record whatever of, in or before any court in [Great Britain,
Canada, United States] may be given in any action proceeding by an exemplification or certified copy of the proceeding or record,
purporting to be under the seal of the justice, or coroner or court stenographer, […] without any proof of authenticity of the seal or of
the signature of the justice…(2) where those mentioned in (1) have no seal, the evidence may be given by a copy purporting to be
certified under the signature of a judge or presiding provincial court judge…without any proof of the authenticity of the signature or
other proof whatever…
24 – Certified Copies – In every case in which the original record could be admitted in evidence…(a) a copy of any official or public
document of Canada or of any province, purporting to be certified...(b) a copy of a document, by-law, rule, regulation or
proceeding…is admissible in evidence without proof of the seal of the corporation, or of the signature or official character of the
person or persons appearing to have signed it, and without further proof thereof…
25 – Books and Documents – if it is so public in nature as to be admissible in evidence on its mere production from the proper
custody, and no other Act exists that renders its contents provable by means of any other copy, a copy thereof or extract therefrom is
admissible in evidence in any court of justice […] if it is proved that it is a copy or extract purporting to be certified to be true by the
officer to whose custody the original has been entrusted…
26 – Books Kept in Offices under Government of Canada – (1) A copy of any entry in any book can be admitted into evidence of
that entry, and of the matters, transactions and accounts therein recorded, if it is proved by oath or affidavit of an officer of the office
or department […] that the book was one of the ordinary books kept in the office […] and that the copy is a true copy thereof…(2)
Proof of Non-Issue of License or Document – require an affidavit of an officer of the department […] setting out that after careful
examination and search of the records he has been unable to find that any license or document has been issued, to be admitted as
evidence, in the absence of evidence to the contrary…(3) Proof of Mailing Departmental Matter…(4) Proof of an Official
Character…
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28 – No copy of any book or other document shall be admitted in evidence, under the authority of section, 23-27, on any trial, unless
the party intending to produce the copy before the trial given to the party against whom is it intended to be produced reasonable
notice of that intention…(2) this reasonableness is determined by the court but cannot be less than seven days
29 – Copies of Entries - Copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be
admitted in evidence as proof…must be first proved that it is one of the ordinary books used, that the entry was made in the usual
and ordinary course of business, that the book or record is in the custody or control of the financial institution and that the copy is a
true copy of it, and such proof may be given by any person employed by the financial institution who has knowledge of the book
[…] and may be given orally or by an affidavit…(3) cheques, proof of no account, (4) proof of official character, (5) compulsion of
production or appearance, (6) order to inspect and copy, (7) warrants to search, (8) computation of time, (9) definitions.
30 – Business Records to be Admitted into Evidence – Where oral evidence in respect of a matter would be admissible in a legal
proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is
admissible in evidence under this section in the legal proceeding on production of the record…(2) inference that matter did not exist
where information is not in business record, (3) copy of records acceptable when accompanied by documents attesting to
impossibility of producing original and authenticity (by person who made copy)…
Civil Evidence Act 1995
8 – Proof of Statements Contained in Documents – (1) Where a statement contained in a document is admissible as evidence in civil
proceedings, it may be proved…(a) by actual document, (b) or copy even if original document is still in existence…(2) this is true no
matter how many times removed the copy is
9 – Proof of Records of Business or Public Authority – A document shown to form part of the records of a business or public
authority may be received in evidence in civil proceedings without further proof…(2) such a document is taken to form part of the
records if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the
records belong…(a)-(b) procedure and inferences for such evidence…(3) absence of such an entry may be proved by an affidavit of
an officer of the business or authority to which the records belong…
These exceptions don’t open the door to testimonial evidence but they indicate a willingness to make copies and duplicates even more admissible. Thus, it can be
seen that the CML is moving away from a strict application of the best evidence rule.
 It is often the judges, and not the strict rules, that end up managing the trial. Judges have the discretionary power to decide whether it would be
unreasonable or unfair to require the original.
 The probative value of evidence ought to be left to the appraisal of the fact-finder – the ends of justice are better served if fact-finders are not prevented
from using evidence with doubtful reliability (testimonial evidence)
 In the search for truth and efficiency, are judges better placed to make decisions in regards to the best evidence rule?
o Bachand thinks so (CML rules are mostly judge-made whereas flexibility has been lessened in US with codification)
o In this sense, the CML seems to be moving to a more CVL reasoning.
 The hearsay exclusionary rule is moving in the same direction in Canada – the SCC has gotten rid of the strict hearsay rule. What matters is not the “truth”
but the truth that both the parties are comfortable with!!!
T. B.-V. v. L.B., (Court of Québec, 2004), p. 301
Facts
 Le directeur a demandé à la mère de l’enfant d’apporter avec elle, lors de l’enquête, le certificant de naissance de l’enfant.
 Avant l’ouverture de l’enquête, le directeur émet un extrait du certificat de naissance et demande au tribunal de déclarer que ce
document satisfait aux exigences de l’article 109 du Règlement de la cour du Québec en matière de protection.
 Le Tribunal refuse de procéder à l’enquête au motif que ledit document ne satisfait pas aux exigences de l’a.109 du Reglement de
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Issue
Holding
Reasoning
Ratio
la Cour.
At issue was whether the DPJ could attempt to prove the child's date of birth by adducing a copy of the official birth certificate that
had been certified not by the Directeur de l'État civil, but rather by the "greffier de la Ville de Montréal".
No. Original version required.
 A birth certificate is an authentic act as per Art. 2814 C.C.Q.
 Pursuant to 2860, a copy can be admissible if it "legally replaces the original" (see 1st par.) or if the party adducing the document
is unable to produce the original (see 2nd par.).
 Pursuant to 2815ff. C.C.Q., copies of the original birth certificate may -- under certain circumstances -- be considered as
authentic; it also "replaces the original" within the meaning of Art. 2860, 1st par.: see Art. 2820, 1st par.
 There is thus no best evidence problem when a litigant adduces a copy of an authentic act that meets the conditions set forth at
Art. 2815ff (c-a-d atteste par l’officier public que en est le dépositaire).
o But here, the Court found that the copy did not meet these conditions because it had been certified by the "greffier de
la ville de Montréal" rather than the Directeur de l'État civil
 The Court also considered whether the copy could be considered to legally replace the original pursuant to Art. 2841 and 2842,
which provide that under certain circumstances, copies "may" be found by the Court to (legally) replace the original within the
meaning of Art. 2860, 1st par.: see Art. 2841, 2nd par.
 But the Court did not go through all the requirements of 2841 and 2842, because in the end it found that this general exception to
the best evidence rule could not be invoked to support the assertion that a copy prepared by somebody else than the Directeur de
l'État civil can "legally replace the original" within the meaning of Art. 2860, 1st par. (which is probably convincing in light of
Art. 2841, 3rd par.).
 Lastly, the court considered whether the copy could be admitted under the 2nd par. of Art. 2860 C.C.Q. -- the inability-toadduce-the-original exception. However, the court found that the party did not show “good faith and dispatch” as required by the
provision; therefore, requirements not met.
The court strictly applied the rules. But not so harsh consequence  just asked to get the document and come back.
2. Parole evidence rule

The gist: where record of a transaction is embodied in a document, extrinsic evidence inadmissible to add/vary/contradict terms of doc.
o Pseudo-equivalent of 2863 CCQ
 However, whereas 2863 traditionally only excludes testimonial evidence, the parole evidence rule excludes all forms of evidence
o Not surprising to see the same rule in both – common sense tells us that it is a good idea to require from people who enter into legal
transactions that they should be held to what is stated in the document
When does the rule apply?
 There is some uncertainty as to whether or not the rule applies to third parties (persons who are not actually party to the transaction). In Quebec, it is clear
that the rule only applies to the parties to the juridical act (2863, CCQ)
 The rule would not apply in a situation where there is a second subsequent contract executed by the parties (recall: the same exception exists in Quebec).
 As in the case of Quebec, the parole evidence rule does not apply when what is at issue is the validity or effectiveness of the underlying legal transaction
o (The exception found in 2864, CCQ is also found in the common law).
o Whenever a party wants to resort to testimonial evidence to prove that the contract is invalid as a matter of law, then the rule does not apply
 The parole evidence rule also does not apply with respect to interpreting the document and trying to figure out the intention of the parties
 It does not apply whenever the document is incomplete (recall: this exception is also found in Quebec).
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
No functional equivalent to commencement of proof exception  this is a purely civilian concept
Cross and Taper on Evidence, p. 519
The Conclusiveness of a Document as Evidence of the Terms of the Transaction it Embodies
 Extrinsic evidence means any evidence other than documents the contents of which are under consideration. It is often said to be parole evidence, no
doubt because it usually takes the form of oral testimony, but it may consist of other documents.
 Most statements of the rule have been concerned by its application to contracts: “parole testimony cannot be received to contradict, vary, add to or
subtract from the terms of the written contract or the terms in which the parties have deliberately agreed to record any part of their contract”.
 This is for reasons of certainty
Exceptions:
 Public registers
 Cases concerning the validity or effectiveness of a contract or other document (e.g. in allegations of mistake, illegality, misrepresentation)
 Absence of consideration
 The real nature of the transaction (e.g. in allegations that a sale was actually a mortgage)
 Capacity of parties (e.g. as agents, tenants, guarantors, etc.)
 Contracts that are partly written and partly oral  oral parts may then by proved by parole testimony
 Memoranda (documents prepared after the conclusion of an oral contract  receipts?)  doesn’t prevent the use of oral testimony to dispute the
contract
 Proceedings between strangers to transactions required to be in writing (e.g. if it doesn’t matter if the terms of the contract are changed – the contract
itself is not the issue(?))
 Can also use extrinsic evidence as an aid in interpretation
Canadian Newspaper Co. v. Kansa General Insurance Co., [1996] 30 O.R. (3d) 257 (C.A.)
Facts
Issues
Holding
Reasoning
Ratio


Canadian Newspapers was accused of libel. It had libel insurance from Kansa.
Canadian Newspapers alleges that as an inducement to obtain the corporate insurance policy Kansa agreed to a special arrangement with
respect to all of the Thomson newspapers which differed from the manner in which libel claims against other newspapers insured by Kansa
were handled.
 Kansa submits that the trial judge was not at liberty to consider any oral arrangement which was made because to do so violates the parole
evidence rule.
Did the judge violate the parole evidence rule by considering the oral arrangements?
No.
 The rule indicates that the language of a written document may not be contradicted by oral evidence
 In this case, the trial judge was not persuaded that the oral arrangement was inconsistent with the terms of the policy
 Kansa’s conduct amounted to a representation that this particular method of handling the libel claims was approved, that the equitable
remedy of estoppel applies, and Kansa is estopped from complaining about its existence now.
 Even when a document seems to embody all the terms of the agreement, evidence of an oral statement is relevant and may be
admitted to demonstrate inter alia the factual matrix of the agreement the oral agreement gave substance to what the parties
meant when they agreed that there was a duty to co-operate
 Therefore, the trial judge did not err in taking the reporting arrangement into consideration in his interpretation of the policy.
Although the general rule is that when there’s a document, other evidence can be used, one of the exceptions comes into play and the judge
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allows the testimonial evidence. However it is unclear as to which exception came into play: interpretation or subsequent transaction.  The fact
that the judge does not feel that a lot of explanation needs to be given is revealing however.
How would the Newspaper case would have been decided in Quebec (possible exam question).
c. Overview of issues relating specifically to electronic evidence [not covered in class]
Basic idea: electronic document (& printouts/reproductions) the integrity of which is ensured = paper
Key problem: adapting the best evidence rule to electronic documents
Document created electronically will be considered to be “original” for the purpose of the best evidence rule if it meets certain requirements aimed at ensuring
its integiry (2860, par. 3 CCQ).
Canada Evidence Act
31.1 – If you want to admit an electronic document as evidence, you have the burden of proving its authenticity by evidence capable
of supporting a finding that the document is that which it is purported to be.
31.2 – (1) The best evidence rule for electronic evidence is satisfied…(a) on proof of the integrity of the electronic documents
system by or in which the electronic document was recorded or stored, or (b) if an evidentiary presumption established under 31.4
applied…(2) in the absence of evidence to the contrary, an electronic document in the form of a printout satisfied the best evidence
rule if it has been manifestly and consistently acted on, relied on or used as a record of information recorded or stored in a printout…
31.3 – Burden of Proof for integrity of an electronic documents system…(a) proof of proper operation or maintenance of integrity
and no other reasonable grounds to doubt integrity…(b) established that document was recorded or stored by a party who is adverse
in interested to the party seeking to introduce it…(c) stored in usual or ordinary course of business by a person who is not a party
and who did not record/store it under the control of the party seeking to introduce it…
31.4 – Presumptions regarding secured electronic signatures – the governor in council may make regulations establishing other
evidentiary presumptions in relation to these documents…
31.5 – Standards to be considered – for the purpose of determining under any rule of law whether an electronic document is
admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner is which such
documents are to be recorded or stored, having regard to the type of business, enterprise or endeavor involved adnd the nature or
purpose of the document…
31.6 – the matters related to the above may be established by affidavit…(2) cross-examination
CCQ
31.7 – sections 31.1-4 do not affect any rule of law relating to the admissibility of evidence, except rules relating to authentication
and best evidence…
2837 – A writing is a means of proof whatever the medium, unless the use of a specific medium or technology is required by
law…Where a writing is in a medium that is based on information technology, the writing is referred to as a technology-based
document within the meaning of the Act to establish a legal framework for information technology.
2838 – In addition to meeting all other legal requirements, the integrity of a copy of a statute, an authentic writing, a semi-authentic
writing or a private writing drawn up in a medium based on information technology must be ensured for it to be used to adduce proof
in the same way as a writing of the same kind drawn up as a paper document.
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2860(3) – production of original or copy…In the case of technology-based documents, the functions of the original are fulfilled by a
document meeting the requirements of section 12 of the Act to establish a legal framework for information technology and the
functions of the copy replacing the original are fulfilled by a certified copy of the document meeting the requirements of section 16
of that Act.
UNIFORM ELECTRONIC EVIDENCE ACT
• An act in relation to data recorded or stored on any medium in or by a computer system or other similar device…including display, printout or other output of
that data…
• 2(1) This Act does not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best
evidence.
• (3) The person seeking to introduce an electronic record [in any legal proceeding] has the burden of proving its authenticity by evidence capable of supporting a
finding that the electronic record is what the person claims it to be.
• 4 (1) [In any legal proceeding], Subject to Subsection (2), where the best evidence rule is applicable in respect of an electronic record, it is satisfied on proof of
the integrity of the electronic records system in or by which the data was recorded or stored.
...
iii) Rules which concern the use of testimonial evidence
We are still looking at rules which are primarily aimed at elucidating the truth.
However, shifting gears away from documentary evidence towards testimonial evidence
What is testimonial evidence?



Testimony is (2-part test):
o i) a factual assertion
o ii) which is relied upon in an attempt to prove the fact asserted
Note that this is a two-part test – second “purpose” part of the test is very important
Basic idea in common law: testimony--as defined above—is only admissible if made in court
o So: a factual assertion made out of court cannot be relied upon to prove the fact asserted
 Why? For the purposes of elucidating truth!
 Fact-finder is in a better position to determine the credibility of the statement
 Declarant in court will be subject to cross-examination: best tool for bringing out truth  not possible outside of court
 Declarant in court is under oath!
o The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust
verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court’s findings of fact, not impede its truth-seeking
function.
o Which entails that evidence (irrespective of its nature: testimonial, written, real) relating to an out-of-court declaration asserting a fact is
inadmissible if adduced with a view to proving the fact asserted
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1. Definition of Hearsay
We’re only in the presence of hearsay--and the exclusionary rule only kicks in--when a party
o i) seeks to rely on an out-of-court statement
o ii) asserting a fact
o iii) in an attempt to prove that fact
Example:
 A sues B in defamation, alleging that B defamed her by asserting that A is a thief and a liar
 In order for A to prove her defamation case, A must prove that B made that out-of-court declaration that A is a thief and a liar
o A is NOT trying to prove that she (A) is indeed a thief and a liar
 A calls X as a witness, who states that he heard B call A a thief and a liar
 A is not trying to prove the facts asserted by B’s out-of-court declaration (that she is a thief and a liar); she is only trying to establish that the out-of-court
declaration was made
 Therefore, the exclusionary rule would not apply – this is clearly a factual assertion, but when you consider why it was used, it falls outside of the ambit of
hearsay
U.S. FER: R. 801 (c): Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.
Civil Evidence Act 1995, Sec, 1(2)a: Hearsay means a statement made otherwise than by a person while giving oral evidence in the proceedings which is
tendered as evidence in the matter stated
2843. Testimony is a statement whereby a person relates facts of which he has personal knowledge or whereby an expert gives his opinion. […] To make proof
[of those facts], testimony shall be given by deposition in a judicial proceeding unless otherwise agreed by the parties or provided by law.
2845. The probative force of testimony is left to the appraisal of the court.
Transystemic note: The hearsay exclusionary rule has been incorporated in the CCQ in 1994.
 However, Royal Victoria Hospital case illustrates that even before the entry into force of the CCQ, the hearsay exclusionary rule was considered to be
applicable under Quebec law.
 The court read an implicit exclusionary hearsay rule into the CPC.
Morrow v. Royal Victoria Hospital (SCC 1974), p. 287
Facts
• This is an appeal against the decision of the Court of Appeal which reversed the judgment of the Superior Court, allowing an objection to
parole evidence of statements made by the deceased.
• Plaintiff was hospitalized at the Royal Victoria Hospital from malnutrition. She was later transferred to another hospital where she became
under the care of Dr. Cameron. Her family was not happy with her treatment.
• The family sued both the Hospital and the doctor (who is now deceased).
• At trial, the mother adduced two phone conversations that she had with Dr. Cameron, one before her daughter entered the hospital, and one
after  the objection was made to statements which Dr. Cameron allegedly made to Mrs. Morrow.
Issue
Are conversations admissible?
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Holding
Reasoning
Yes.
• The CPC rules re: the examination of witnesses are not strictly procedural. Despite its title, the CPC deals with substantive law and contains
an implicit exclusion of hearsay evidence
o (Art. 294, which specified that all witnesses must be examined in open court, the opposite party being present or duly notified)
• By admitting hearsay evidence not only is the provision requiring examination of witnesses in open court evaded, but that requiring an oath
or solemn affirmation as well, to say nothing of the right to cross examine.
• Thus, this provision of the code of civil procedure implies the inadmissibility of hearsay as a general rule.
• The exceptions allowed in English law must also be recognized as applicable where there is no express provision or incompatibility with an
express rule
• There are exceptions to the inadmissibility of hearsay evidence:
1. Res Gesta – the matter in dispute:
• When the words spoken are part of the matter in dispute, as in the case of verbal defamation, one is not dealing with a deposition given
otherwise than in open court but with the facts to be proven.
• This does not apply here because the conversations between Mrs. Morrow and Dr. Cameron are not part of the facts giving rise to the right,
which the plaintiff seeks to establish.
• The facts giving rise to the right claimed are the treatments, which Dr. Cameron gave the plaintiff with her own consent.
2. Another exception is found in what is now CCQ 2867: “2867. 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.”
• The first conversation occurred before the fact and therefore cannot constitute an admission and the exception cannot apply.
• The second conversation is more complicated. The court cannot a priori refuse to consider as possibly constituting an admission of a
statement relating to the matter in dispute and allegedly made to third party by the party himself.
• Extreme caution must be exercised by the court before admitting evidence of a statement made by a deceased person BUT the question of
admissibility must not be confused with that of probative value.
Comments
 Second conversation should have admitted under reserve of deciding whether it really was an admission.
 Broader trend of courts looking at the origin of articles to determine their meaning – being transsystemic!
 Even in the former CCQ which did not say anything about hearsay, we see that it was accepted in Quebec. We had imported in our law from
the CML system of evidence, the traditional exclusionary rule.
 This is because it is so difficult for fact finder to assess the truth of factual assertions that are made out of court.
 But it is accepted that hearsay, although it is a general rule, is not absolute. Where there are sufficient guarantee of truthfulness, statements
should be allowed. Courts were given the power to carve out exceptions.
However, with time, the rule was thought to be too harsh, so exceptions were carved out to limit the risks that potentially useful information be excluded and that
fact-finders be misled. Modern developments reveal the failure of this specific approach on at least two levels:
1. We came to realize that categories of exceptions were not sufficient = they left out too much useful and relevant information.
o It’s just against common sense to say that out of courts declarations are necessarily unreliable. There was too much collateral damage.
2. We also came to realize that the rule was a mess.
o In terms of efficiency, the exceptions became too difficult to apply and many people considered that the cost and the ineffectiveness were
greater than the advantages actually gained by the traditional rule.
 This lead to substantial reforms.
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Class Examples
1. Tom sues neighbour Fred because he allegedly kicked Tom’s dog.
 Issue: whether or not Fred actually kicked the dog.
 Tom’s friend John testifies to having seen Fred kick him.
 Is hearsay rule engaged in the following situations? (Yes or No)
A. Fred tries to use out of court declarations to challenge John’s credibility to support his factual assertion made in court that he didn’t in fact kick the dog.
o Fred wants to attack John’s credibility by showing he was drunk at time. Fred calls Mary who was close by. Mary says John had trouble keeping his
balance, and that John:
 Was saying ‘will you marry me’ staring at the trees: No – The hearsay rule doesn’t apply because this is not a factual assertion. To be in the
presence of hearsay, the out-of-court issue must qualify as a factual assertion.
 Singly loudly ‘it’s a beautiful day’: No – Although this statement (it’s a beautiful day) is a factual assertion, this is not the fact you are trying to
prove. We are trying to prove that he was drunk; we don’t care about what he was saying. Thus, the hearsay rule doesn’t apply.
 Told her ‘boy, am I ever drunk’: Yes – This is hearsay: the factual assertion involved (‘boy, I’m drunk’) is the exact fact I am trying to prove
(i.e. John’s state of intoxication).
o NB. See the exceptions section where statement might be allowed anyway
B. Fred seeks to adduce as evidence a hard copy of an e-mail Nadine sent to Daniel one week after the incident, and in which Nadine--who was there that evening-states that Aaron is the one who kicked Max.
o There is a hearsay problem
 Same rules apply to written statements
 Note that even a commercial water bottle can constitute testimony based on the assertions made on its label, and is subject to
hearsay considerations
 There is an out-of-court declaration
 It contains a factual assertion (Aaron kicked the dog)
 There is a clear connection between the fact being asserted (that Aaron kicked the dog) and what Fred wants to prove (that he didn’t kick
the dog)  the substance of this assertion would clearly be very useful to Fred in proving his fact
ii) What if the email had instead been sent by John?
o This is an example of the kind of tricky situation that arises where there is a multiplicity of possible purposes
 If all Fred wants to prove is that John lied, or is an inconsistent witness, then there is no hearsay problem
 BUT, if Fred wants to go further, and prove that Aaron actually kicked the dog, then it is NOT admissible for hearsay reasons
o Common law used to make this distinction: judges would instruct juries that they could use the testimony for one purpose but were not to consider it
for the other purpose
 This was obviously problematic for non-professional fact-finders
 NB. Out of court declarations can be made verbally or in writing (of any nature note from above) – still hearsay
o E.g. A bottle of water can be:
 Real evidence (if showing colour of label or characteristics of bottle)
 Documentary (if showing the language of the comments on label, e.g. issue of if it respects Bill 101)
 Hearsay (if wanting to show where the bottle was created – and there’s a factual assertion on bottle saying it was bottled at Mirabel, and that’s
what you wanted to show)
2. In Valuex, is Breton’s statement (allegedly) accepting the modification to the contract hearsay?
 No!
 Two ways of justifying this!
1) Breton was no making a factual assertion, but rather indicating his agreement to a juridical act
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CCQ 2850
An admission is the acknowledgment of a fact which may produce legal consequences against the person who
makes it
 Any statement dealing with parties’ intentions to enter into juridical acts cannot be considered factual assertions
 Different from the dog-kick example, which pertained to juridical facts rather than acts
2) This was a factual assertion (an assertion as to parties’ willingness to enter into a contract), but we carve out a special exception to hearsay
rules to exclude these kinds of assertions
Even before the entry into force of the CCQ, we did have the traditional exclusionary rule.
 Idea that it was a general rule and not an absolute rule has been accepted for centuries.
 Thus, pre-CCQ, everybody understood that the basic hearsay rule applied, and was subject to the same hearsay exceptions as in other CML provinces.
2. Overview of Traditional Exceptions to the General Exclusionary Rule
Obviously there is a need to have exceptions to this rule, since there are occasions in which excluding hearsay will lead you towards inaccuracy (which flies in
the face of the reason for the hearsay exclusion rule, which is to ensure greater accuracy)
 Thus, even in the beginning, the exclusionary rule was “riddled with exceptions”
US Federal Rules of Evidence are extremely useful in this domain: full codification of these principles (?) at ss. 803 and 804
Two Basic Categories
1. Hearsay that is admissible regardless of declarant’s availability:
Admissions
 One litigant relying on his opponent’s out-of-court assertion (can be any assertion)
 (801(d)(2); see also relevant provisions of CCQ)
 By far the most important exception in practice
 In the US Federal Rules of Evidence and the CCQ, admissions are not even considered to be hearsay (the result is the same as the Canadian approach,
which carves out an exception for them)
 In all common law systems all written or spoken out of court statements by the parties are admissible. Statement against interests!!!!
 This is justified according to the underlying policy values, because that litigant will be there to give answer
 Other protection – statements against interests have higher probability of reliability.
 Admissions do not constitute proof – they can be contradicted and the weight given to this will left to the trier of fact
 Also applies to interveners
 As soon as you have determined that a statement constitutes hearsay, the next question you should ask is whether the statement constitutes an
admission
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CCQ 2851
CCQ 2852
CCQ 2867
An admission may be express or implied. An admission may not be inferred from mere silence, however,
except in the cases provided by law
An admission made by a party to a dispute or by an authorized mandatory 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.”
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
Spontaneous statements!
 Rule 803 (1-3), Federal Rules of Evidence
 http://www.law.cornell.edu/rules/fre/ACRule803.htm
o (1) A statement describing or explaining an even or condition while the declarant was perceiving the event or condition, or immediately
thereafter
o (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
o (3) Then existing mental, emotional, or physical condition
 “Boy am I ever drunk!”
 Makes sense:
o The underlying reason for the hearsay exclusionary rule is that it is difficult to assess properly the reliability of hearsay evidence
 Too hard for a fact finder to determine the reliability of a statement without the safeguards that a trial offers
o In this case, because the statements are contemporaneous (or impelled by stress), there is less chance that the speaker took the time to formulate
a lie, and thus less reason for the rule
Recorded recollections
 Rule 803 (5)
 Refers to the situation when a witness at trial reads a record that he himself made of events
 Thus, allows witnesses who would otherwise have forgotten the relevant events to draw on his own testimony, constituted before the trial
Records of regularly conducted activity – business records exception
 Rule 806 (6)
 Applies in every CML jurisdiction
 Idea is that employees are normally under a duty to get facts right
 Looks a bit like 2831 CCQ
o 2831. An unsigned writing regularly used in the ordinary course of business of an enterprise to evidence a juridical act makes proof of its
content.
o However, note that 2831 goes further: doesn’t just allow the evidence to be admitted, but also provides that such business records MAKE
PROOF of the juridical act in question
Public records and reports
 Rule 803 (8)-(12), (14), (22)
 “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,
107



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.”
This includes past judgments
Also records of vital statistics (wedding records, etc.)
Same idea as CCQ article (CCQ 2818. 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) but again with the difference that the CCQ article goes as far as to state that the documents make proof of what they set out
Compilations
 Rule 803(17)
2. Hearsay that is admissible only if declarant is unavailable (reasonably unavailable):
 Former testimony (804(1))
o Perhaps in a different court proceeding (not as many reliability concerns, as it was made under oath)
o Note that you can always use former testimony to impeach the credibility of a witness (i.e. if they are contradicting evidence they
presented at a previous trial) but this does not engage the hearsay rule, since you would not be relying on the previous statements to prove
a point)
 Statement under belief of impending death (804(2))
 Statement made against interests (804(3)) – different from admission
o Doesn’t have to be a party to the case who made the statement (whereas, for the admission exception to apply, you must be a party to the
case)
o Unavailable to come to court
o Muse be made against the person’s own interests when it was made (so chances are, it’s reliable and accurate factual assertions because
you don’t typically say things against your own interest)
 See ProMutuel to figure this out and how not to confuse it.
3. Contemporary evolution and future of the hearsay exclusionary rule
US
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The exceptions left out too much potentially useful hearsay  i.e. collateral damage to the search for truth was too important
Exceptions were a mess; complex and uncertain
We overestimated the risks that courts would get it wrong if left on their own to determine reliability probative value of hearsay
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Recent developments have this in common:
o Greater admissibility of hearsay -- more goes in;
o Attempt to provide clearer, more precise and predictable rules;
 Including codification in some cases
 This may be seen in Starr, when Sopinka insists on the practical difficulties of applying the rule.
o More discretion given to trial courts
 More confidence in the ability of trial judges to determine whether a piece of evidence could actually be useful in the fact-finding
process
The US kept the exclusionary common law rule, but codified it in the 1960s and 70s. This almost exhaustive codification is unique in the common law
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world. The codification addresses the predictability and efficiency concerns.
The US rules also reveal the exclusionary rule is evolving in such a way that its scope is increasingly narrowing
Traditional exceptions still applicable, but hearsay that fits in neither of them can nevertheless be admitted under the 807 residual exception
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807 – Residual exception – 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 then 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.
Admission of the statement cannot be done 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 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
UK
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“In civil proceedings, evidence shall not be excluded on the ground that it is hearsay” (Civil Evidence Act, s. 1 ff)
Bachand: the English have abolished the hearsay exclusionary rule! Why then should we keep it?
o This is good: like a CVL jurisdiction
So, hearsay becomes a question of probative value and not a question of admissibility anymore. Heasay won’t be excluded at the outset anymore, and
adjudicators can give it the weight they think appropriate
S. 4 draws the courts’ attention to various factors which are considered to be important in the assessment of hearsay in civil proceedings (these relate to
a lot of the CML exceptions to the original exclusionary rules
s.4 – Consideration in weighing evidence includes looking at circumstances from which inference of reliability can be made…whether it would have been
reasonable and practicable for the party to whom the evidence was adduced to have produced the maker of the original statement as witness; whether the original
statement was made contemporaneously with the occurrence or existence of the matters stated; would have made sense to get the actual person who made the
statement; whether evidence involves multiple hearsay; whether there is a motive to conceal or misrepresent matters, whether the original statement was edited or
made in collaboration with another for a purpose, whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to
prevent proper evaluation of its weight
Canada
 Adoption of “principled approach” (Khelawon), whereby hearsay admissible if:
o Necessary
 The gist: the hearsay is “necessary” where (i) declarant’s own testimony is unavailable/wouldn’t be helpful and (ii) there is no other
available evidence
 Declarant is dead and no other evidence of the fact asserted is available (as in R. v. Starr)
 “Wouldn’t be helpful” – good example is in the case of business records: can’t expect a court witness to recall what time a
truck left 10 years ago without recourse to the document – without this “hearsay” document, the testimony is useless
 Likewise in the case of startled utterances
o Reliable
 Out-of-court declaration at issue made in circumstances that provide sufficient guarantees of trustworthiness; or
 Truthfulness of declaration can be sufficiency tested/assessed (e.g. declaration made under oath + statement videotaped + declarant is
available for cross-examination at trial)
 This principled approach precludes the traditional exceptions
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o
o
o
This means that the judicial exceptions remain relevant only as a persuasive authority. They provide both the judge and the parties with
guidance as to when hearsay should be admissible. In this sense, the exceptions retain a certain practical importance.
The court could have mimicked the US approach and have a principled approach that was just an add on. But this is not what the SCC chose in
Starr. The court is telling us the principled approach replaces completely the categories.
Similar to the evolution of the opinion rule – first, a hard exclusionary rule; then, the development of lots of exceptions and sub-exceptions; and
finally, a distillation of these exceptions by the SCC into a few (in this case two) broad policy considerations.
R. v. Starr (SCC, 2000), p. 255
Facts: Starr was charged with murdering two people. A large part of the Crown’s case against him depended on hearsay evidence:
(1) A witness testified about something one of the victims had said to her about an hour before he was killed;
(2) The police testified about another witness positively identifying the accused, even though the witness did not make this identification at trial.
Issue: Should these hearsay declarations be admitted? [NO]
Ratio: [Iacobucci J.]
 In a conflict between the principled approach and the existing exceptions, the principled approach must prevail
o However, Iacobucci notes that such circumstances will be the exception, not the rule
 Note that hearsay can also include non-verbal assertions
Admissibility of Cook’s statement of intention under the exception  No
 The first step of the hearsay analysis is to ask whether the statement is sought to be adduced in order to prove the truth of its contents.
 This is so in the case at hand: the intention to “go and scam an Autopac with Robert (Starr)” is the content of the statement, and the Crown sought to rely
on it to proof its contents (so as to argue that the victim was with the accused the night of the murder)
 The next stage of hearsay is to examine whether it is nonetheless admissible under the appropriate exception.
 The Crown argued the state of mind or the present intention exception to hearsay made it admissible.
o However, in cases where the act was a joint one involving the deceased and another person, the hearsay is generally not admissible to
show the intention of the third party.
o A statement of intention cannot be admitted to prove the intentions of someone other than the declarant, unless a hearsay exception can
be established for each level of hearsay
o (This would be “double hearsay”)
 The statement was more prejudicial than probative
 Conclusion: The trial judge erred when he admitted the statement under the present intentions exception, and having admitted it, in not limiting its use by
the jury. The statement contained no indicia of reliability since it was made under circumstances of suspicion.
Admissibility of Cook’s statement under the principled approach No
Relationship between the principled approach and the traditional hearsay exceptions
 The hearsay rule serves as a cornerstone of a fair justice system, particularly in criminal matters (less so in civil matters?) (p. 264)
 In Khan and Smith, the court has moved away from the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now
admissible on a principled basis, the governing principles being the reliability and the necessity.
 There are two paramount reasons to reconsider the hearsay exceptions: trial fairness and the integrity of the justice system and the intellectual
coherence of the law of hearsay.
 It is nevertheless necessary for a court to exercise some caution when reconsidering the traditional exceptions. “While the exceptions may need to be re-
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examined in light of the principled approach, their complete abolition is not the answer. Rather, the exceptions continue to play an important role under
the principled approach. Our task is therefore to reconcile the traditional exceptions with the principled approach”.
 The exceptions play 3 different functions that justify why we should not completely get rid of them:
o They have served to add predictability and certainty to the law of hearsay : no matter how arbitrary they were, litigants could be more or less
certain when going to court of the types of issues that would be relevant in debating the admissibility in a particular context, and of the
likelihood that the evidence will indeed be admitted.
o They have served an explanatory and educative function, instructing litigants and judges about the relevant factors to consider in determining
whether to admit a particular type of hearsay evidence, or whether to admit hearsay in a particular context. Hearsay exceptions should be seen as
concrete examples of the practical application of the purpose and principles of the hearsay rule in a particular context.”
o Lastly, they teach about the historical and contemporary rationale for admitting certain forms of hearsay.
  “The more appropriate approach is to seek to derive the benefits of certainty, efficiency and guidance that the exceptions offer, while adding the
benefits of fairness and logic that the principled approach provides. The task is to get rid of their arbitrary aspects in order to avoid admitting hearsay
evidence that should be excluded.”
Conclusion: C’s statement of intention is not admissible under the principled approach. Since the statement was made under circumstances of suspicion, it is not
reliable. There are no circumstantial guarantees of trustworthiness that could render the statement reliable. Having found that the statement is not reliable, it is
not necessary to go on and wonder whether it is necessary.
Revisiting the hearsay exceptions
 The hearsay exceptions are determinative of admissibility.
 Evidence falling within the traditional exceptions is presumptively admissible because these exceptions traditionally incorporate an inherent reliability
component.
o The burden will be on the party alleging that traditional the hearsay falling within an existing exception is not admissible by the principled
approach to prove it
 The logic of the principled approach provides that it must prevail in cases of conflict with an existing exception.
 In rare cases, it is possible that a case for evidence will fall within an otherwise valid exception and not meet the reliability and necessity criteria. In such
a case, the evidence would have to be excluded.
 Also, it must be reminded that the threshold of reliability is NOT concerned with whether or not the statement is true. Instead, it is concerned with
whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness.
o E.g. because the declarant had no motive to lie, or because there were safeguards in place such that a lie could be discovered
o At this stage of hearsay admissibility, the trial judge should not consider the declarant’s general reputation of truthfulness, nor any prior or
subsequent statements, consistent or not  only concerned with the circumstances of the statement itself
Admissibility of Cherry Balls out of court identification  No
 The statement is hearsay and does not fall within the existing exceptions.
 It was equally inadmissible under the principled approach as it was not necessary nor reliable.
R. v. Khelawon, [2006] 2 S.C.R. 787
Jurisdiction Appeal from Ontario
Facts
 Five elderly residents of a retirement home told various people that they were assaulted by the manager of the home, the respondent,
Ramnarine Khelawon.
 One, S, gave a videotaped interview to the police where he made these assertions, not under oath, but under a statement that he
understood that he had to tell the truth and could be charged for not doing so.
 Four other witnesses later gave substantially corroborating statements to police
 Is this taped interview admissible?
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Issues
Holding
Reasoning
1) What factors should be considered in deciding whether evidence is sufficiently reliable under the principled approach?
2) Can corroborating evidence be considered?
3) Should the complainants’ hearsay statements should be received in evidence?
1) Any relevant evidence
2) Yes it may.
2) No, should be excluded. Court of Appeal decision upheld.
Charron J
 All relevant evidence is admissible.
 One exception to this rule is that hearsay is presumptively inadmissible.
o The central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability.
 The essential defining features of hearsay are the following:
o (1) the fact that the statement is adduced to prove the truth of its contents
o (2) the absence of a contemporaneous opportunity to cross-examine the declarant.
 However, in some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate
fact finding.
 Thus certain exceptions were crafted for situations where the dangers of receiving the evidence were sufficiently alleviated. The principled
approach must be applied with this same concern in mind.
 Requirements: necessity and reliability

The reliability requirement will generally be met by showing EITHER (highlight this)
o (1) out-of-court declaration at issue made in circumstances that provide sufficient guarantees of trustworthiness
 In this case, should consider the factors tending to show whether the statement is true or not, with corroborating
evidence if available
o (2) that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its
truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination.
 In this case, no need to inquire into the probable truth of the statement

“Necessity and reliability should not be considered in isolation. One criterion may impact on the other. For example, as we shall see, in
some cases the need for the evidence may, in large part, be based on the fact that the hearsay statement is highly reliable and the fact-finding
process would be distorted without it (para. 47)
“Necessity is not to be equated with the unavailability of the witness. The necessity criterion is given a flexible definition. In some cases,
such as in B. (K.G.) where a witness recants an earlier statement, necessity is based on the unavailability of the testimony, not the witness.
Notwithstanding the fact that the necessity criterion can be met on varied bases, the context giving rise to the need for the evidence in its
hearsay form may well impact on the degree of reliability required to justify its admission.” (para. 78)
The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and
leaves the ultimate determination of its worth to the fact finder
Corroborating or conflicting evidence may be considered in the admissibility inquiry in appropriate cases (see above)
The trial judge still has the residual discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative
value.
The “new approach to hearsay” should not “itself become a rigid pigeon-holing analysis”.
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Charron J then reviews all the major cases in the development of the principled approach to outline those attributes or circumstances that are
usually considered to decide whether dangers of hearsay evidence are raised:
o Ability to cross-examine declarant (very important)
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o
o
Context in which statements were made (under oath, preliminary inquiry)
Adequate substitutes for adversarial process...
Application to this Case:
 Although Mr. Skupien’s death before the commencement of the trial made it necessary to resort to his evidence in this form, the statement
was not sufficiently reliable to overcome the dangers it presented.
 There are no adequate substitutes here for testing the evidence and so the Crown could only rely on the inherent trustworthiness of the
statements.
 But, the circumstances in which they came about did not provide reasonable assurances of inherent reliability. To the contrary, they gave
rise to a number of serious issues including: whether Mr. Skupien was mentally competent, whether he understood the consequences of
making his statement, whether he was influenced in making the allegations by a disgruntled employee who had been fired by Mr. Khelawon,
whether his statement was motivated by a general dissatisfaction about the management of the home, and whether his injuries were caused
by a fall rather than the assault.
 The Crown could have had S take an oath before a commissioner, but they did not!
Benefits of the Traditional Exceptions (from Starr):
1) The exceptions enhance predictability and certainty in litigating, which provides greater efficiency – a complete abolition of the exceptions would
complicate the judicial task and render it too open-ended.
2) The exceptions also provide an explanatory and educative function as to the factors to consider in determining whether to admit hearsay evidence.
3) They teach us about the historical and contemporary rationale for admitting certain forms of hearsay (other than the unreliable evidence that these
exceptions sometimes allow) – there are reasons beyond pure necessity why the court might admit reliable evidence.
Problems with the Traditional Exceptions:
1) The exceptions left out too much potentially useful hearsay; i.e. collateral damage – re: search for truth – was too great
2) Exceptions were a mess, complex and uncertain
3) Overestimates the problems/risks that fact-finders get it wrong if they are left on their own to determine reliability and probative value of hearsay
Quebec
 The approach is similar to that of CML Canada
 However, traditional exceptions are totally abandoned
 The hearsay exclusionary rule is maintained and we adopted a CCQ 2870  this is a codification of the principled approach (Starr)
2870. 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.
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Art. 2870 (1-2) gives the court power to admit hearsay, but it must “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”
o This codifies the necessity/reliability approach of the CSS
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Art. 2870 al. 3 provides a business records exception
So, according to Bachand, there is no significant difference between the approach in common law and the Quebec law.
2871. 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.
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2871 covers situations made by a person who is involved in the proceedings as a witness. It mentions the reliability requirement. Previous statements are
reliable if they were made out of court in circumstances that guarantee their accuracy. So, there is no necessity analysis here.
But note that the French version seems to suggest a much wider scope of discretion for the judge to admit or refuse the evidence!
2871. Lorsqu'une personne comparaît comme témoin, ses déclarations antérieures sur des faits au sujet desquels elle peut légalement déposer peuvent être
admises à titre de témoignage, si elles présentent des garanties suffisamment sérieuses pour pouvoir s'y fier.
In CML, judges always have discretion to refuse to admit hearsay evidence even if the reliability and necessity criteria are met if the prejudice that will be
caused by admitting it outweighs its value. But do judges have the same discretion in Quebec? Or do they have to admit whatever meets the necessitity +
reliability/reliability requirements?
In Promutuel, the court relies on the French wording to find that trial judges DO under 2871 have discretion to decide whether to admit hearsay evidence where
the declarant later appears in court (this is an iffy conclusion, given the wording of the English, but it is what the Court finds).
Maybe the best way to explain this by relying on the relevance question from Anderson (earlier in term)  could say is based on general discretionary power
given to judges under this earlier “test”
Bachand: given that the legislature EXPLICITLY gave discretionary power to the judge in 2870, the fact that they didn’t do this explicitly in 2871 suggests that
perhaps this wasn’t intended
 Still, shouldn’t put too much stock in these formalistic arguments
Promutuel Drummond v. Les Gestions Centre du Québec Inc. [2002] R.R.A. 695 (Qué. C.A.)
Facts
 Appellant insurance company appealed against a judgment ordering that it pay indemnities to respondents after their commercial building
burnt down.
 Appellant argues that they should not have had to pay the respondents because the latter had sold the building to a third company. The
appellant was relying on out-of-court statements by the respondent company’s presidents in order to prove the existence of this alleged K of
sale.
 The TJ refused to admit these statements.
 Note that the presidents testified and that their out-of-court statements were not inconsistent with their testimony.
Issues
(1) Are the presidents’ out-of-court statements admissible by virtue of 2871 CCQ?
(2) Did the TJ therefore err in excluding them?
Holding
(1) Yes.
(2) No – TJ may exclude otherwise admissible hearsay under 2871.
Reasoning
Chamberland J :
 The general regime of evidence in civil matters has been precisely and completely codified in the CCQ and the CCP
 Thus, it has dispensed with the rules in criminal law and common law
 Art. 2781 allows the previous (out-of-court) testimony of a witness provided that a single condition is met: sufficient guarantees of its
reliability
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o
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In this case, the conditions were met: the parties spoke before a stenographer, one party was represented by a lawyer, and they
all declared solemnly to tell the truth
However, art. 2871 reserves discretion for the judge to nonetheless refuse the evidence – the admission of the evidence is not
automatic!
o The general rule that parties should be interrogated in court is not gone – still very much alive in art .2843 and art. 294 CCP
Thus is it possible that the conditions of reliability could be met and the judge could STILL refuse the testimony – if, for example, TJ thinks
that credibility of the witnesses is at the heart of the case, or if the judicial dossier is already very full, or if the events at the heart of the case
took place recently
o In the present case, the judge correctly exercised his discretion not to admit the evidence
o The events took place relatively recently
o Note, though, that the statements could still be used to impeach credibility – and they were indeed used for this purpose by the
appellant’s lawyer
Where is the justification for finding this discretion?
o Wording: declarations “peuvent etre admises” [note that English wording is different!]
o Even though the wording of 2871 differs from that of 2870 (there are no words “pourvu que … le tribunal l’autorise” in 2871),
the authorization of the court is nevertheless required  who else but the court can judge whether the guarantees of reliability
are sufficient? [Nick: this seems like a separate issue – a court might feel compelled to say the guarantees of reliability were
sufficient but nonetheless choose to exclude the evidence for some other reason]
Does this discretion extend to the determination in art. 2870?
o No!
o Under 2870, the court is obliged to undertake a specific test (al. 2) and once this is done, the court can’t simply refuse to admit
the evidence after having concluded that it is necessary (and, presumably, reliable)
Beauregard [obiter] :
 Judge DOESN’T have discretionary power under 2871 to refuse to admit evidence once the conditions have been met
 He can always, as trier of fact, give it whatever weight he wants, but he does have to admit it
 In this case, the statement was made by a party, and is thus not hearsay anyway, and can be admitted! [Bachand’s point]
Ratio
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This case stands for the fact that courts have a discretionary power with regard to 2871 to exclude hearsay by persons appearing as witnesses
even if reliability has been shown.
A judge can justify this exclusion based on necessity requirements or even broader efficiency considerations.
Judges do not have the same discretion under 2870 – if statements are necessary and reliable in judge’s view, then they’re in.
Comments:
 Bachand: isn’t the court implying a necessity requirement when it isn’t mentioned in 2871?
 Bachand: These declarations were admissible as party admissions, therefore there is no hearsay problem in the first place, which is what Bearegard is
saying.
o In CCQ, there are a few provisions that deal specifically with admissions  regulated by different provisions than 2870 and 2871  confirms
implicitly that admissions don’t fall under regular hearsay rules
o I.e. admissions are not even considered hearsay in QCVL
o And this is why they aren’t mentioned in 2870 and 2871  don’t be fooled!
 Don’t forget that with the CML, even though we use reliability, etc. judges can still exclude evidence based on costs and efficiency – Anderson illustrates
this
o Thus, there is a general discretion that exists in Quebec despite the fact that the CCQ doesn’t specifically contain a provision that says so
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o This would be a much better basis for the judge’s (good) decision than the shaky finding of a discretionary power in 2871
Judges have to become more comfortable with an active role, despite a long-standing preference of CML that judge should remain passive.
Final notes on hearsay
 Prof is interested in us thinking about how the rule evolved  compare US, UK, Canada and QC approach
 Which of these approach is the most desirable?
 Can we come up with another one?
 The fact that the hearsay rule will render the out of court declaration admissible will not end the analysis.
o We must also look at the relevance criteria, so there are other grounds of admissibility which have nothing to do with the fact that you are
trying to rely on.
 In the common law, we fell this need to exclude hearsay because we had too much doubts about the ability of the trier of fact to handle it. The rationale is
not about relevance! It was thought the trier of fact did not have enough to make a good call about the reliability of this evidence.
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Both in Quebec and in common law Canada, we have retained the general hearsay exclusionary rule while delegating to courts of first instance the power
to allow hearsay to be adduced as long as the out-of-court factual assertion at issue is both necessary (to the search for truth) and sufficiently reliable.
Bachand thinks there is something fundamentally incoherent in this approach.
o The hearsay exclusionary rule essentially rests on the belief that fact-finders cannot be trusted to properly assess the reliability of factual
assertions that are not made before them, under oath and with an opportunity for cross-examination by the opposing party.
o By preserving the exclusionary rule, the SCC and the National Assembly thus believe that courts of first instance cannot be trusted to
assess the reliability of out-of-court factual assertions
o But at the same time they delegate to those very same courts the power to determine on an ad hoc basis whether hearsay is sufficiently
necessary and reliable to be of any help in the fact-finding process, thereby sending the message that courts of first instance can indeed
be trusted to properly assess the reliability of hearsay
o In other words, it seems that the modern hearsay rule in force in Canada rests on two completely contradictory ideas: courts of first instance
cannot be trusted to properly assess the reliability of hearsay (hence the need to retain the exclusionary rule) and courts of first instance can be
trusted to properly assess the reliability of hearsay (hence the desirability of delegating to courts of first instance discretionary powers under the
so-called “principled” approach.)
Pre-Starr (and pre-Khan), the rules were much more coherent because those who decided whether hearsay ought to be exceptionally admissible were not
the fact-finders. Initially, higher (appellate courts) were the ones deciding whether (and if so, to what extent) exceptions deserved to be recognized and
courts of first instance decided whether a given out-of-court factual assertion did indeed fall within one of the exception, which means that the fact-finders
(jurors) had of course no role to play whatsoever in developing exceptions to the exclusionary rule. Even after we got rid of juries in civil matters, the rules
remained fairly coherent: appellate courts decided whether exceptions deserved to be recognized while the role of courts of first instance – the fact-finders
who were assumed not be in a position to properly assess the reliability of hearsay – was limited to determining whether a given out-of-court factual
assertions fell within one of the established exceptions.
Could a similar criticism be addressed at the modern US approach (in light of the discretion given to Federal courts pursuant to Rule 807)?
Explanation of 2867
CCQ 2867 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.
Example
 Bachand wants to get Michael to testify that Luke made a declaration that he (Luke) concluded a contract with Bachand to buy Bachand’s car for more
than $1500
 Clearly this is an admission, since the statement was made by Bachand’s opponent (Luke)
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However, Bachand wants to use to use this testimony to prove a juridical ACT, and this is prevented by 2862 (unless it falls into one of the exceptions)
Could Bachand, rather than using it to prove the existence of the juridical act per se, use it to prove that Luke admitted the existence of a juridical act?
NO! Prevented by 2867: can’t prove indirectly what you can’t prove directly
o If you can’t use testimony to prove that a K was concluded, you ALSO can’t prove through testimony that Luke SAID that a contract was
concluded
o This is the meaning of the poorly-worded article, 2867
b. Testimonial Evidence in the Civil Law Tradition
General exclusionary rule on hearsay evidence is a distinctive feature of the common law context.
CVL rules re: admissibility/probative value of testimonial evidence
 We already know about limitations on using testimonial evidence in relation to juridical acts
 No general rule rendering hearsay inadmissible (there are, however, some sporadic and statutory limitations, mostly relating to criminal matters)
 Hearsay is still an issue, but has a bearing on weight rather than admissibility
o Thus, the reliability and necessity factors are taken into account, albeit less directly than in the common law
o Very often, judges will want to be told why the declarant is not appearing in front of them in court to testify in a formal manner.
o They will also be curious about whether the out of court declaration has been made in circumstances that guarantee its reliability.
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Differences here are not surprising considering that:
 No cross-examination per se in civil law tradition
 Not seen as necessary to face witnesses with aggressive cross-examination in order to uncover the truth
 Not necessary that judges deciding cases actually see witnesses testify
 In fact, appellate judges are free to overrule findings of fact by the trial judge in CVL jurisdictions
As is the case in common law, weight/probative value of testimony is left to discretion of the fact-finder
Parties normally don’t testify in support of their case, through long self-serving testimony which is typical of common law trials
o When parties testify in CVL jurisdictions, they do so in reaction to very specific questions posed by the judge (who, remember, is in control of
examination of witnesses)
Note: Quebec is a common law tradition for this purpose, and not a civil law one. It makes sense when we look at the way adjudication occurs in Quebec  it is
very similar to what happens in traditional common law jurisdictions. All these basic features of a common law trial are also present in Quebec, so it made sense
to have an exclusionary rule
However, UK law seems to be moving in the direction of civil law.
R. 25 UNIDROIT PRINCIPLES:
25.1. All relevant evidence, except that which is privileged, is admissible, including circumstantial evidence.
25.2. The facts and legal contentions alleged in the pleadings determine relevance
25.3 A party, if not competent to give evidence, may nevertheless make statements that will be accorded probative weight. A party making such a statement is
subject to questioning by court and parties.
25.4 A party has right to proof through testimony…of any person whose testimony is relevant, admissible, and the production of which is subject to the court’s
authority. The court may call on any witness who qualifies.
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25. 5 Parties may offer in evidence any relevant information document or thing. The court may order to present any relevant information in that person’s control.
Comments: The basic principle is that any factual information that is rationally useful in reaching judgment on the relevant facts of the case should be admissible
as evidence. Common-law concepts of hearsay and parol evidence as exclusionary rules are generally inappropriate in a non-jury case but they do affect the
credibility and weight…
In applying the principle of relevance, the primary consideration is usefulness of the evidence and whether a probative inference may be drawn from the evidence
to the facts…
The rules limiting in various ways the use of circumstantial evidence seem unjustified and difficult to apply in practice (there is no valid reason to restrict the use
of circumstantial evidence when it is useful to establish a fact in issue…while subjective or objective connections of a witness to a case should not be
disregarded, a general rule of competency avoids the complex distinctions of rules which exclude interested non-parties…parties may testify in person (not
permitted in CVL systems…the court may take an active role in taking of testimony…
Key point: Unidroit principles allow parties self-serving testimony!
iv) Rules which concern the use of real (material evidence)
C.C.Q.: Art. 2854 & 2868 (notice the differences with R. 1001 of the U.S. FRE; do they matter in practice?)

We already know about the first two types of evidence
o Testimonial evidence = statements of facts adduced in order to prove those facts and made by persons who have first-hand knowledge of those
facts
o Documentary evidence = written statements recorded on medium (paper or other) that fact-finder reads using medium (thus gains first-hand
knowledge of statements)

Real evidence = any object adduced in an attempt to prove facts that fact-finder is asked to perceive directly from the object by using one of his/her five
senses
o Royer: “La preuve matérielle est celle qu’un juge perçoit par ses propres sens et non par l’intermédiaire d’un témoin ou d’un document”
o McCormick : “All phenomena which can convey a relevant first hand sense impression to the trier of fact, as opposed to those which serve
merely to report the second hand sense impressions of others” (McCormick)
o Usually includes videos/photos (e.g. see 2854 in fine)
 You might consider photos and videos as documents, and not as real evidence
 Bachand: better to think of documents as information you acquire through reading

No special requirement re: admissibility or weight that should be accorded to real evidence  left to the discretion of the court
o Thus, we aren’t bothered in the same as with characterizations of evidence as documentary or testimonial
o It is the most unregulated form of evidence
o Admissibility depends mostly on relevance of fact sought to be proved
o For photos/videos, originals may be required: USFRE 1002 (so best evidence rule extended to evidence of that nature)
CCQ 2854
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
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
It does not mean that real evidence is always admissible, for whatever purpose. Real evidence can be excluded on the basis of other rules of
admissibility.
CCQ 2868

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.
There also are rules which have to do with the manner in which the evidence was obtained. If evidence was adduced in a manner contrary to basic rules,
then it will be inadmissible.
Note the differences with R.1001 of the US FRE – do they matter in practice?
US FRE, Rule 1001. Definitions
For purposes of this article the following definitions are applicable:
(1) 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.
(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or
issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other
output readable by sight, shown to reflect the data accurately, is an "original".
(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately
reproduces the original.
Rule 1002. Requirement of Original
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.
v) Authentication requirements
Point: This deals with the basic rule that the party seeking to rely on documentary/real evidence must prove (through independent evidence, often
testimonial) what it actually is/where it comes from.
Examples:
 Proof that a document is what the party seeking to rely on it purports it to be
 Proof that the voice heard on the audio tape in indeed that of Mr. X, as alleged by the party seeking to rely on that tape
 Proof that a newspaper article sought to be adduced by Mr. Plaintiff was indeed published on that date, in that specific newspaper and so on
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Makes sense: before fact-finder can draw any conclusion from such evidence, s/he must be told what it actually is
The general principle is that the party seeking to adduce documentary evidence must prove its authenticity  Authenticity is NOT presumed, and the party
seeking to rely on it has the burden of proving it.
 Thus, if you want to prove that Dasani makes plastic bottles, and you bring in a plastic Dasani bottle to prove this, you need to prove to the court that the
bottle is indeed a Dasani bottle
o Need independent evidence as to this: e.g. a Dasani plant worker who can state that the bottle came from a Dasani plant
 Same deal with documentary evidence: must prove that the signature is actually real before you can rely on it
R. 901 US FRE: (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 proponents claims.
Examples:
 2828(1) CCQ – “A person who invokes a private writing has the burden of proving it”
 2835 CCQ – “A person who invokes unsigned writing shall prove that it originates from person whom he claims to be its author.”
 2855 CCQ – “The production of material things does not have probative force until their authenticity has been established by separate proof. However,
where the material thing produced is a technology-based document within the meaning of the Act to establish a legal framework for information
technology, authenticity need only be established in cases to which the third paragraph of section 5 of that Act applies”.
In common law tradition, proof of authenticity is considered to be a requirement of admissibility, whereas in the civil law (QC is common law here), authenticity
goes to the probative value (not so important in practice).
Specific exceptions exempt certain documents- mostly public/official documents from the basic authentication requirement
 Provisions of the Canada Evidence Act
 US FRE R. 902: extrinsic evidence of authenticity as a condition precedent to the admissibility is not required with respect to: domestic public documents
under seal, domestic public documents not under seal, foreign public document, certified copies of public records, official publications, newspaper
periodicals, trade inscription and the like, acknowledged documents, commercial paper and related documents, presumptions under act of congress,
certified domestic records of regularly conducted activity, certified foreign records of regularly conducted activity.
 Notarial acts
In practice, authenticity often admitted; note also procedural rules, such as 89 and 403 CCP, facilitating admissions re: authenticity
 These are issues that are dealt with pre-trial, and almost all points of evidence will be admitted
 If a party unreasonably refuses to admit the authenticity of a document, and it is found at trial, the party will be slapped with an adverse cost order
Electronic Documents:
 Electronic data present additional problems
 “Best evidence rule” we looked at earlier revealed a basic concern about the reliability of documents at admissibility stage
o The concern about reliability is addressed through “originality” requirement, which works well when the medium is paper

But if document is electronic, what is the “original”?
o Difficult to address concern re: reliability through an “originality” requirement
o Rules have in this in common: reliability concerns are addressed though requirement of reliability of the electronic system on which document
stored; so shift from reliability of doc. itself to reliability of system
o See e.g.: Uniform Electronic Evidence Act
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

Sec. 3 maintains traditional authentication requirement
Sec. 4(1): best evidence rule “satisfied on proof of the integrity of the electronic records system in or by which the data was recorded
or stored”
Sec. 5 establishes presumption of system integrity in some cases
B. EXAMPLES OF RULES PRIMARILY AIMED AT ENSURING THE EFFICIENCY OF THE ADJUDICATIVE PROCESS
These rules include (i) the res judicata rule and (ii) the litigation privilege.
i. The Doctrine of Res Judicata
Res judicata refers to a a basic and uncontroversial idea: adjudicative decisions ought to be final, i.e the relitigation of disputes ought to be avoided
 Binnie in Danyluk: An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner –
duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.
 We can have discussion on whether it’s an evidence rule; maybe not, but the point is that it does have evidentiary consequences.
 From an evidentiary perspective: generally speaking, evidence that relates to matters that have been previously adjudicated = inadmissible
 While basic principle is the same in both traditions, specific rules are quite different
COMMON LAW TRADITION
In a common law tradition, 3 difference devices implement this doctrine:
 Cause of action estoppel
 Issue estoppel
 Abuse of process
(1) Cause of action estoppel (a.k.a. claim preclusion):

Evidence is inadmissible if it relates to a cause of action that has already been finally adjudicated between same parties
o So: if parties + cause of action in suit #2 = parties + cause of action in suit #1, evidence re: that cause of action is inadmissible
o As plaintiff will be prevented from adducing evidence in support of its claim, consequence is that second action will be dismissed
o Applies irrespective of whether plaintiff has won or lost first suit;
 Plaintiff who has lost in suit #1 can’t get second kick at the can
 Plaintiff who has won in suit #1 can’t assert same cause of action in suit #2


Problem: Courts have failed to come up with clear definition of a “cause of action”
This causes difficulty in situations where:
o i) both suits originate from same/related factual occurrences, and;
o ii) nature and/or object of claims asserted not identical
In these cases, it is often hard to tell whether suit #2 based on “same cause of action” as the one asserted in suit #1
o E.g.: Two lawsuits arising out of the same car crash

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o
 Suit #1: A sues B claiming damages re: injury to car. A wins
 Suit #2: A then sues B claiming damages re: loss of revenue due to injury to arm
Same cause of action?
 YES! The wrong is the same! Also consider efficiency, B’s interest in closure!
 NO! The rights are different!

Answer depends on doctrine’s raison d’être:
o Is it only to ensure the finality of determinations made in suit #1 re: parties’ rights and obligations?
o Or is it also to prevent multiple actions relating to same/related occurrences (a.k.a. litigation by installment) by forcing parties to raise all
matters (relating to same/related occurrences) in initial action?

This lack of precision shows courts’ desire to keep some flexibility because the “res judicata” rule is too rigid
o Hence, courts go beyond technical or mechanical considerations. They increasingly use a contextual approach. At the end of the day, what
matters is whether the plaintiff’s behavior- in launching a second action- was reasonable or not. Thus, the label of “cause of action estoppel” is
misleading.
o Example: Same car accident as above. In most cases, judges will consider that the doctrine of cause of action estoppel bars the second
proceeding absent any circumstances explaining why the plaintiff launched another proceeding, even thought the relief sought is different.

There are situations that would seem to justify a “second” claim
o E.g. if the law changed between the first and second lawsuit
(2) Issue estoppel:


At common law, it became evident very quickly that cause of action estoppel wasn’t sufficient to stop relitigation
Hence the importance of the indisputably discretionary “issue estoppel”

Where suit #2 is based on a different cause of action, evidence offered in that second lawsuit may be found inadmissible if it is adduced in an attempt to
relitigate issues that have already been decided in a first lawsuit involving the same parties
o This is different in a public law context; in situations like this, the doctrine does not apply in the same manner. This was at stake in the
reference on the same sex marriage. Whether in Chalouhi the same analysis would apply would be different.

To assess whether issue estoppel applies, apply the two-part test in Danyluk (see below):
 Has the defendant established that the preconditions to the operation of issue estoppel have been satisfied?
 As a matter of discretion, ought issue estoppel to be applied?
Danyluk v. Ainsworth Technologies Inc. 2001, SCC on appeal from Ontario, p. 111
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Facts:
 Danyluk’s complaint concerned an alleged entitlement to commissions in the total of $300,000. She filed her complaint under the Employment Standards
Act seeking the commissions above and other unpaid wages.
 During the ESA proceedings, an employment standards officer (Burke) was assigned to investigate the case. Burke never provided Danyluk with
information about the employer’s position and she did not give her the opportunity to respond to the employer’s position.
 Danyluk’s claim for unpaid commissions was rejected and was explained that she could apply to the Director of Employment Standards for a review of this
decision. [Note: Court of Appeal found that the administrative decision was taken in a manner which was manifestly improper and unfair]
 Danyluk did not apply to the Director for review; instead, she decided to carry on with her action in civil court.
 Ainsworth Technologies argue that the claim for unpaid wages and commissions is barred by issue estoppel.
Issue: Should the claim for unpaid wages and commissions be barred before the civil court due to issue estoppel? NO!
Reasoning (Binnie):
 An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner – duplicative litigation,
potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.
 The rules governing issue estoppel should not be mechanically applied: the underlying purpose is to balance the public interest in the finality of litigation
with the public interest in ensuring that justice is done on the facts of a particular case.
 An administrative decision which is made without jurisdiction from the outset cannot form the basis of an estoppel. The conditions precedent to the
adjudicative jurisdiction must be satisfied.
 However, where the tribunal had jurisdiction but made procedural errors, [as was the case here], the resulting decision is nevertheless capable of forming
the basis of an estoppel.
 Issue estoppel requires a two-part analysis:
1) Has the defendant established that the preconditions to the operation of issue estoppel have been satisfied?
2) As a matter of discretion, ought issue estoppel to be applied?
Part One
In order for issue estoppel to apply, the prior decision must have been a judicial one
 Three factors to consider:
o Was the body that made the decision an administrative authority capable of receiving and exercising adjudicative authority?
o Is the particular decision one that was required to be made in a judicial manner?
o Was the decision made in a judicial matter?
 In this case, duties of employment standards officers embrace all the indicia of the exercise of judicial power, including ascertainment of facts, application
of the law to those facts, and making a decision binding on the parties
 The denial of natural justice does not deprive the decision of its “judicial” character – flawed judgments are still judgments
The preconditions to issue estoppel for a judicial decision are set out by Dickson J. in Angle:
1) The Same Question Has Been Decided
 Danyluk is claiming $300,000 in unpaid commissions, which puts in issue the same entitlement as was refused her in the ESA proceeding.
 One or more of the factual or legal (or mixed fact-law) issues essential to this entitlement were necessarily determined against her in the earlier ESA
proceedings
2) The Judicial Decision Which Is Said to Create the Estoppel Is Final
 Decision was judicial (see above)
 The decision of the ESA officer was final for the purposes of the Act, since the employee did not take advantage of the internal review procedure, and
therefore the decision is capable in the normal course of events of giving rise to an estoppel.
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
The fact that Danyluk had no right of appeal (she could only make a request for review by an ESA adjudicator) does not affect the finality of the ESA
decision, but may be a factor in the exercise of the discretion to deny issue estoppel.
3) That the Parties to the Judicial Decision or Their Privies Were the Same Persons as the Parties to the Proceedings in Which the Estoppel is Raised or Their
Privies
 In this case, the parties are identical.
The preconditions to issue estoppel are met in this case.
Part Two
 Discretion is necessarily broader in relation to the prior decisions of administrative tribunals because of the enormous range and diversity of the structures,
mandates, and procedures of administrative decision makers.
 Binnie thinks that it was an error not to address the factors for and against the exercise of discretion which the court clearly possessed with respect to issue
estoppel. There are 7 factors that are relevant in this case (but the list is open):
1) The wording of the statute from which the power to issue the administrative order derives: the legislature did not intend that the ESA proceedings
become an exclusive forum.
2) The purpose of the legislation: Putting excessive weight on the ESA decision in terms of issue estoppel would likely compel parties to mount a fullscale trial-type offence and defence, tending to defeat the expeditious operation of the ESA scheme as a whole this would undermine fulfillment of
the purpose of the legislation.
3) The availability of an appeal: The existence of a potential administrative review and her failure to take advantage of it must be counted against her.
4) The safeguards available to the parties in the administrative procedure: The breach of natural justice is a key factor in the appellant’s favour.
5) The expertise of the administrative decision maker: The ESA officer was a non-legally trained individual asked to decide a potentially complex issue
of contract law.
6) The circumstances giving rise to the prior administrative proceedings
7) The potential injustice: This is the most important factor. The Court should stand back and, taking into account the entirety of the circumstances,
consider whether application of issue estoppel in the particular case would work an injustice.
 Whatever the appellant’s various procedural mistakes in this case, the fact remains that her claim to commissions has never been properly considered and
adjudicated the court should use its discretion and refuse to apply issue estoppel in this case.
Comments:
 Judge notes that the parties have not argued “cause of action” estoppel and that they apparently have taken the view that the statutory framework of the
ESA claim sufficiently distinguishes it from the common law framework of the court case. Bachand thinks this case could have been argued as a “cause of
action” estoppel case.
Additional Tidbits of Information:
 Issue estoppel extends to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals the
specific objective is to balance fairness to the parties with the protection of the administrative decision-making process.
 Definition of “cause of action”: comprises every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right
to the judgment of the court.
 Definition of ‘issue estoppel”: once a material fact such as a valid employment contract is found to exist (or not exist) by a court or tribunal of competent
jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be re-litigated in subsequent proceedings between the same parties.
Bachand’s comments:
 This case stands to show discretion exists, even when it is pretty much the same issue, the judges may decide to allow the parties to re-litigate issues
previously decided.
 The court is in favour of a case by case analysis on how this discretion ought to be excercised
 The discretion is quite broad (usually it is quite narrow but said to be broader if first decision rendered by quasi-judicial tribunal)
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


o Discretion applies because tribunals are not appropriate for such a giant claim, especially when there were procedural unfairness
Courts want to retain as much power as possible, but this is troubling with respect to the burden placed on the defendant.
Bachand: why wasn’t this a cause of action case?
o One answer: pleading before the employment board technically under another cause of action than Superior Court
o Still, it’s a mystery why the parties didn’t pursue this point more energetically
Bachand: very weak! She CHOSE the quasi-judicial tribunal, and there were remedies available to her to correct the problems she had with it
o She could have asked for an internal review and then a judicial review of the internal review – used the remedies available to her
o She had appropriate legal representation, and therefore we can assume that she was a sophisticated litigant, and not a weak one that had no
knowledge of the existence of other alternatives for overriding the decision. How does this not militate against her at the step of discretion?
o This is not correctly explained in the case
(3) Abuse of process (non-mutual issue estoppel):
When preconditions for cause of action estoppel or issue estoppel are not met, courts still have the discretion to disallow re-litigation on grounds that it
constitutes an abuse of process .
 Based on the same principles of finality/certainty, and the basic principle that matters should not be litigated twice.
 It is admissible when all the rest has failed, as the City of Toronto case shows
 It is a super discretionary power for judges
“Canadian courts have applied the doctrine of abuse of process to preclude re-litigation in circumstances where the strict requirements of issue estoppel are not
met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the
administration of justice.” (City of Toronto- para. 37)
In the City of Toronto case, there were two lawsuits –
 In the first one, an employee of the city is convicted of sexual assault while working as recreational instructor.
 In the second lawsuit, the union contests employee’s dismissal, ignoring the criminal convictions.
City of Toronto v. C.U.P.E. (SCC, 2003), p. 329
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Facts:
 Oliver worked as a recreation instructor for the City of Toronto.
 First lawsuit: He was charged with sexual assault under his supervision. He was convicted by a criminal court.
 Second lawsuit: City of Toronto fired Oliver after learning about his conviction. Oliver grieved his dismissal (through the union), and at the hearing,
testified that he had never assaulted the boy. The arbitrator ruled that the criminal conviction was admissible as prima facie but not conclusive evidence
that Oliver had assaulted the boy. The arbitrator held that the presumption raised by the criminal conviction had been rebutted, and that Oliver had been
dismissed without just cause. The union is asking the tribunal to find that the sexual assault never took place.
Issue: Does any doctrine preclude the re-litigation of the facts upon which the conviction rests?
Decision: Yes – abuse of process
Reasoning (Arbour):
 Issue estoppel cannot be used to bar the rebuttal in this case because the requirement of mutuality of parties (3rd part of the test) has not been satisfied.
o In the original criminal case, it was between the Queen and Oliver.
o In the arbitration, the parties were CUPE and the City of Toronto (the employer).
o [Discussion about the desirability of abandoning the mutuality requirement (as in US) – Arbour decides it’s better to keep it]
 The rule against collateral attack (which bars actions to overturn judgments which take place in the wrong forum) doesn’t apply because the union isn’t
actually seeking to overturn the conviction itself, only to contest whether it was correct for the purposes of a different claim with different legal
consequences
o I.e. claim is not a contest about whether the conviction has legal force
 The doctrine of abuse of process applies to bar the claim, however
o Judges have an inherent and residual discretion to prevent an abuse of the court’s process.
o This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of
justice.”
o It is a flexible document unencumbered by specific requirements (unlike issue estoppel)
o Canadian courts have applied the doctrine of abuse of process to preclude re-litigation in circumstances where the strict requirements of issue
estoppel are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency,
finality and the integrity of the administration of justice.
o The primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts.
 No guarantee that the second trial will be better at determining truth than the first
 If the result is the same in the second trial as the first on the same issue, the court will have to justify the expense, hardship to
witnesses, etc.
 If the result in a subsequent proceeding is different, the inconsistency, in and of itself, will undermine the credibility of the entire
judicial process, thereby diminishing its authority, its credibility and its efficiency.
 There may, however be instances where re-litigation will enhance the integrity of the courts  if first proceeding is tainted by
dishonesty; new evidence, previously unavailable impeaches the original results; fairness dictates that the original result should not
be binding in the new context; defendant had no motivation to dispute first issue fully but now has a much larger motivation
o It is improper to attempt to impeach a judicial finding by the impermissible route of re-litigation in a different forum
 Application of Abuse of Process to the Facts of the Appeal
o The grievor was convicted in a criminal court and he exhausted all his avenues of appeal. In law, his conviction must stand, with all its
consequent legal effects.
Conclusion Res judicata is a big deal in a common law jurisdiction, all the more so when you compare it to the civil law model.
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

Problem: what if you didn’t have the motivation to mount a vigorous defence in the criminal case (say over a $150 fine), but the conviction was then
used as the basis to mount a much more expensive civil case
o Luckily, this doctrine is flexible, so can work around this
But does this doctrine give too much discretion?
o It’s easy to see how this would be necessary in a case like City of Toronto, but could run into problems in other situations
CIVIL LAW TRADITION
2848. 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.
This article is an example of the typical civil law rule regarding res judicata.
It only prevents a party from claiming something that was already claimed and was disposed of in a first lawsuit involving all the elements of the “règle des trois
identités”:
 Same cause of action;
 Same parties; and
 Same object of the claim.
Much narrower than cause of action estoppel
 Not enough to show that second suit is based on same cause and between same parties: “thing applied for” must also be the same!
o Thus, if damages are sought for different things, the prohibition will not apply
 Thus, in the car crash example above, there would be nothing to stop the second lawsuit
 No broader avoidance-of-multiple-lawsuits-relating-to-same-occurrences rationale seems to underlie the CVL approach.
o The prohibition is very narrow, and is only meant to avoid contradictory conclusions on the same point



Traditionally, at CVL, this was the only mechanism that gives effect to the rule of res judicata
However, this is not the whole story
o There is no clear definition in the civil law on the meaning of “object”; is it the remedy, the amount of claim, etc? We do know that a
distinction exists between object and cause of action and this distinction is not found in the common law. This means that CCQ 2848 is not as
broad a rule as is its common law counterpart.
Triple identity rule is not strictly applied by Quebec courts
o E.g. Rocois Construction (1990, SCC); expansive interpretation of “cause” and “object” requirements
 Trial #1: Federal Court case based on Combines Investigation Act; claimed $1m in damages and special costs (investigation,
proceedings)
 Trial #2: Essentially the same case, but this time before the Quebec SC, and based NOT on the CI Act, but on the Civil Code; based
on the same factual occurences
 This time, seeking only the $1m, not the special costs
 A strict interpretation of 2848 would suggest that this WASN’T the same cause of action, so the plaintiff should be allowed to pursue
the second claim
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
However, the SCC takes a more flexible approach (Bachand thinks this is a very good thing)
 Object requirement met as both suits claimed essentially (though not exactly) the same thing)
 Cause requirement also met: although legal rules invoked are not the same, both sets of rules are based on the 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
Rocois Construction Inc. v. Québec Ready Mix Inc (SCC, 1990) (not in Casebook)
Jurisdiction
SCC from FCA
Facts
 Trial #1: Federal Court case based on Combines Investigation Act; claimed $1m in damages and special costs (investigation,
proceedings)
 Trial #2: Essentially the same case, but this time before the Quebec SC, and based NOT on the CI Act, but on the Civil Code; based on
the same factual occurences
o This time, seeking only the $1m, not the special costs
 Bachand says the real reason for not claiming special costs was to ensure not identical objects of the action
 However, the stated reason would be an inability to do so under extra-K law (not possible under CCQ)
Issues
Is action barred under Art 2848?
Holding
Action was barred even though does not strictly fulfill triple identity.
Ratio
Gonthier J.
 If you apply art 2848 so strictly, so easy to get around the rule. Just could modify damages sought by a dollar, or alter the description of
the prejudice. Here, essentially the same claim. Special costs in first suit were incidental and just added on.
o Common sense approach would not allow for another claim to be launched
o Object requirement met as both suits claimed essentially (though not exactly) the same thing)
o Cause requirement also met: although legal rules invoked are not the same, both sets of rules are based on the 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
If the effect of the ruling on the rights of both parties would be the same in both situations, the claim cannot be re-litigated.
Bachand
o Seen similar relaxation in civil law – e.g. Germany where courts are trying to be more flexible with view to broadening scope of prohibition of re-litigation.
o This leads to contradictory jurisprudence that is often impossible to reconcile
o This isn’t because judges are sloppy, it’s because they are uncomfortable with this rigid rule: their decisions are informed by broader considerations of
fairness and efficiency
o Bachand says that judges are stuck with 2848, but look at broader justice implications in the same way that common law judges are looking at them.
o Arguments must grow out of moral formal analysis…but can go beyond these analyses to reasonableness of the party’s behaviour and prejudice to the party
o Probably also because today courts are much more concerned with the efficiency of the civil litigation system
 Don’t want people to litigate in instalments: launch multiple lawsuits from the same set of facts with SLIGHTLY different parameters
Ungava Mineral Exploration Inc. v. Mullan (QCCA, 2008), p. 367
Facts
 Ungava sells mineral mining rights to a second company, CRI
 Later discovered that the mineral rights were much more valuable than initially thought – property had some natural resources that no
one was aware of
 Lawsuit #1 (Bisson Arbitration)
o Ungava sues CRI – said CRI knew all along the true value the mining rights and negotiated the K fraudulently
128
 More than that, they acquired the knowledge illegally (through trespassing)
Goes to arbitration (Bisson), because there was an arbitration clause in the K
Most of what is being asserted in this action is contractual rights
Seeking annulment of the initial K, together with a relatively minor claim for damages for CRI’s breach of its
contractual obligations and of the statutory duty of good faith during negotiations and formation of the agreement
o Ungava loses – arbitrator finds it did not establish the facts of trespass or foreknowledge
o Ungava applies for an “application for supplementary arbitration award” (in reality a demand for revision of the
judgement); later drops it)
Ontario Lawsuit (?)
o CRI intiates procedures against Ungava to have the arbitral decision (homologated by the QCCS) recognized by the Ontario
courts
o Ungava counterclaims on largely the same grounds as before, suing CRI and some of its directors for the annulment of the
contract and a billion (!) dollars in damages for conspiracy, fraudulent misrepresentation, breach of contract, etc.
o Ungava brings some new evidence, but court determines that there was no reason why Ungava shouldn’t have been able to
bring this evidence the first time
o Ungava reaches a settlement with CRI whereby Ungava’s claim was rejected, CRI’s claim granted, and Ungava pays CRI
$20,000
Request to Retract Homologation of the QCSC (?)
o Ungava alleges that the arbitrator Bisson was in error
o At CRI’s application, the claim is dismissed for being too late
Mendelsohn Arbitration
o Ungava alleges that Bisson was in error because CRI failed to disclose information before the agreement AND failed to release
it during discovery before the first arbitration
o Mendelsohn accepts CRI’s application to refuse the claim “pour cause de chose jugée”
o He finds that Ungava is simply trying to make the same debate it did before Bisson: same parties, substantially the same object,
same cause (failure to disclose material facts, re-characterized as failure to arbitrate in good faith)
o New evidence does not constitute a fresh cause of action
o He also finds that the types of exceptional circumstances which give rise to exceptions to the principle of res judicata are very
similar to the codified grounds for revocation of judgment at 483 CCP
o Ungava tried to raise these before without success at the previous arbitration
Lawsuit #2
o Ungava sues the main shareholders and directors of CRI (Mullan and Durham) as
 Technically different parties!
o Not suing for the annulment of the K, but for damages to compensate Ungava’s loss in having negotiated a detrimental
K
o Based on their participation in the trespass conspiracy, failure to disclose at the time of negotiation, and failure to
disclose during arbitration
 (Must be an extra-K’ual claim, because directors were not parties)
o
o
o




Issues
Holding
Does res judicata (2848) apply in this case?
YES!
129
Ratio



The current claim is the same as the Mendelsohn claim, and the Mendelsohn claim was the same as the Bisson claim
Thus, the Bisson judgment has the effect of “chose jugée” on the current claim
However, still necessary to ascertain whether the current claim and the Mendelsohn claim are identical with regard to their causes, their
objects, and their parties
Identity of Cause (YES)
 Cause is “le fait juridique ou materiel qui constitue le fondement direct et immediate du droit réclamé”
 This cause was contractual in the Bisson arbitration; it is extra-contractual in the present case
 However, this difference is not sufficient to truly distinguish them
 The appellant invokes essentially the same group of facts in both cases,
 Also, the legal characterization of facts of faults giving rise to both claims are close enough to be assimilated
o Failure to disclose information during negotiations
o Failure to arbitrate in good faith
o Trespass and illegally taking samples
 Every recourse that comes from the same fault constitutes the same “manquements” (sins?)
 The fact that certain details figure explicitly in one case but not in the other, or are formulated differently, does not change anything
o Thus, not relevant that Ungava directly alleged lying in one claim but not the other (especially since lying is implicitly alleged
in the other claim anyway)
 Cites Rocois:
o A collection of facts doesn’t in itself constitute a cause of action  it is the legal characterization given to it which makes it, in
certain cases, a source of obligations” (SDQ)
o Likewise, a rule of law in the abstract doesn’t in itself constitute a cause of action  has to be applied to a specific set of facts
 In most cases, applying two different rules of law to the same factual situation will usually result in a duality of causes
 But not always: when the legal characterization of facts is identical under either rule, there is identity of cause
o “In matters of delictual liability, modern civil law systems have generally applied two separate principles, namely the liability
attaching to wrongful acts on the one hand and the liability associated with the assumed risk on the other.”
o “Two statutory provisions based on different legal principles cannot give rise to identical causes since the fact regarded as the
source of liability will necessarily be different; the legal characterization of the factual situation will similarly be different.”
o “In cases where the two provisions are based on the same legal principle, it is then necessary to examine the potential result of
applying these provisions to the facts under consideration. If with respect to a given set of facts the effect produced by applying
the provision relied on in the second action corresponds to the effect produced by applying the provision relied on in the
first, it should be concluded that there is an identity of causes.”
o Where there is a single set of facts alleged to which two provisions are presumed to be applicable, there will be an identity of
cause when the substance of each provision by the same legal principle produces an identical effect on the rights and
obligations of the parties.
o This rule reflects the purpose of the preliminary lis pendens exception, which is to avoid contradictory judgments and an
unnecessary and costly multiplicity of proceedings.
 In the present case, the effect of articles 1457 and 1458 (civil liability), 1401 and 1407 (fraud), and 1375 (duty of good faith) all have the
same foundational principle
 It makes no difference that the responsibility is personal in one case and by proxy in the other
Identity of Object (YES)
 Appellent argues there is no identity of object because one claim was for the nullity of the contract and the other for damages arising
from the personal responsibility of the respondents
130



Pesant c. Langevin:
o The object of a demand is the benefit that the claimant proposes to get
o Identity of object doesn’t necessarily require “material identity” – can also be an “abstract identity of law”
o If two objects are so connected that the two debates over them raise the same question concerning the same obligation between
the same parties, it is “chose jugée” [Nick: if identity of parties becomes a factor in determining identity of object, what is the
point of a three-part test?]
In this case, the appellant is asking for the sanction of the same rights: the sanction of the fraud committed by CRI, of the violation of the
duty of good faith, etc.
The remedies sought are two sections of the affirmation of the same rights
Identity of Parties (YES)
 Appellant argues that not only were the directors not parties (formally) at the arbitration, but they couldn’t have been, since they weren’t
part of the arbitration deal
 However, during the arbitration, it was these individuals that Ungava accused of lying
 Physical identity of parties is not required – can have “juridical identity arising from the mechanism of representation” (Roberge v.
Bolduc)
 For example, decisions involving unions are “chose jugée” for workers; likewise for mandatories [Nick: this seems to be a separate legal
principle. What is the point of the corporate veil if corporations are “actually” the same as their directors?]
 This is interpreted liberally in the jurisprudence (examples)
 In this case, the directors were directly implicated in the arbitration
 (Note that if there had been an action against Mullan and Durham first, this would have been “chose jugée for CRI”  note mutuality
and reciprocity
The three identities are there, thus this is chose jugée
Other Issues
 Appellant argues that even if this is chose jugée, public order necessitates that its claims are recognized, because of the discovery of the
“Fisher Report Fraud”, which would otherwise give the impression that a refusal to examine the merits resulted in the failure of an
otherwise successful claim
 Appellant argues that the presumption of chose jugée constitutes an exception to the principle that all parties can faire valoir their rights
in court – thus should be interpreted restrictively (Societé Hypothécaire Quebec Ltée)
 (Rejected)
 Affirms that the issue of chose jugée is not a mere technicality  goes to the fond
 The solution really would have been for the appellant to obtain a retraction or annulation of the Bisson judgment, but this wasn’t done in
time
 This case illustrates perfectly the use of chose jugée set down in art. 2848, which aims to avoid the multiplication of claims
requiring the repeated reexamination of the same case and the same debates  judge explicitly gives to 2848 the kind of function
attributable to abuse of process!
Bachand:
 At first blush, seems that 2848 should not apply: all three of the “triple identities” are not met
o Different parties
o Different cause (?)
o Different “thing sought”
131

But court says this doesn’t matter – 2848 applies!
Does it make sense to stop Ungava from going to the second trial?
 Yes!
o Ungava was clearly seeking the same thing both times: just wanted another kick at the can
 Ungava is suing VIRTUALLY the same parties
 The right is essentially the same: the right to engage in contract relations without being frauded
 No!
o They couldn’t bring the shareholders/directors before the arbitration tribunal, because these people weren’t part of the K
 Thus, if they wanted to sue these people, they HAD to do so in front of the courts
 Couldn’t launch a concurrent parallel lawsuit against the personal defendants because of the doctrine of lis pendance
Is 2848 the appropriate means of doing this?
 Yes!
o (Bachand has no arguments)
 No!
o Could go through abuse of process doctrine instead of 2848
 Avoids undue stretching of 2848
 Bachand: “thing applied for” clearly wasn’t the same, shouldn’t have to pretend that it was
 This argument works substantively, since Superior Courts have a whole lot of broad inherent powers, just like CML judges!
 Art. 46 CCP: The courts and judges have all the powers necessary for the exercise of their jurisdiction.
 AND, City of Toronto recognizes that these powers include inherent powers to stop proceedings in case of abuse of process,
which Ungava’s second case arguably was!
Code was amended recently: if the legislator had wanted this liberal interpretation, they could have made this a law  judge-made expansion of 2848 makes the
law unpredictable
Ali c. Compagnie d’assurance Guardian du Canada, p. 21
Jurisdiction
QCA, 1999
Facts
 Ali convicted of burning down his own building criminally (Trial #1). After a 10 day trial, Ali was found guilty of arson.
 In Trial #2, Ali (appellant) sues insurance company for not paying insurance.
 Insurance company claims that they don’t have to pay because Ali caused the fire deliberately, and attempt to prove this fact by relying on
the judgment from the criminal trial.
 Trial judge of Trial #2 accepts Ali’s version (that he didn’t start the fire) without consideration of the criminal conviction
 Both sides appeal
Issues
Are criminal convictions admissible in civil trials?  YES!
Are civil courts bound by previous criminal convictions?  NO!
132
Ratio
Thibault JA:
Admissibility
 Admissible – a criminal conviction is an important juridical fact that cannot be ignored
 Look to relevance and it is material. (could possibly make an Anderson prejudice argument)
 General rule is that evidence is admissible if it relates to material / relevant fact
 Insurance company wants to adduce DOCUMENTARY EVIDENCE – Ali’s conviction – related to the material fact issue
o The judgment speaks DIRECTLY to whether he burned down his own house, as alleged by the insurance company
o NOT a document that attests that he likes to play with fire, or that he has burned down his own houses before
Probative Value
 A criminal conviction is an important fact which civil trial must take into account. However, it doesn’t establish any absolute presumption:
res judicata doesn’t apply here, because it does not meet requirements under Art. 2848.
 Civil judge is free to draw appropriate conclusions and presumptions of fact from the conviction according to the circumstances
 The criminal conviction is not binding on the civil court.
 An individual found guilty by a fair criminal trial, can’t reopen the debate on his guilt “incidentally” by means of a civil trial
Bachand
Admissibility
 Are there any exclusionary rules related to the admission of documentary evidence in this cause?
1. First thing to think about (always!): best evidence rule!
 Would suggest the need for the original court document
 No one would ever raise this issue – even if they were a harsh vexatious litigant
 But even if they did, you could get a copy that constituted a public document selon 2814-15 CCQ, which would legally replace the
original within the meaning of 2860
2. Argument that there should be a strict separation between civil and criminal matters, so that civil judges should not look at criminal matters
 This was actually contentious when this argument was raised in a case 10 years ago, but the CA dismissed this argument
 Same argument as in City of Toronto: don’t want civil courts to draw different conclusions from criminal courts, or to redo
whole judicial processes
 Of course, this applies differently to an acquittal – not very useful to say that the Crown has failed to meet its extremely demanding
standard of finding guilt
3. It’s (technically) hearsay!
 Piece of paper that says that Ali burned his own house down, not pleaded in trial
 However, in CML, the judgment would fall under an exception touched on by the FRE 803: official findings of fact made by officials
 In CVL, falls under some other exception
Probative Value
 General rule: left to discretion of adjudicator
 Rules relating to authentic acts? (2818 CCQ)
 Rule limiting assessment of evidence by appellate courts
 Potentially applicable exceptions?
o Prohibition on relitigation
 Traditional res judicata (2484): obviously not – different causes of action, different parties, different objects
o Could you make argument that, in Quebec, in addition to 2848, the abuse of process doctrine can prevent re-litigation of issues already
decided?
133

No!


Yes!


2848 is completely exhaustive law
Otherwise criminal convictions would never be binding on civil courts, and we would get contradictory results (which is
exactly what 2848 is attempting to avoid
Abuse of process doctrine arises inherent powers of Canadian Superior courts, so you don’t need a codal article
o Art 46 CCP: Quebec courts enjoy same inherent powers historically recognized at common law. This means that,
just because powers not enumerated doesn’t mean that courts don’t have those powers
o Inherent powers are so important that have constitutional protection (SCC said this) under unwritten principles
o Thus could always resort to abuse of process based on City of Toronto.
EXAM QUESITON: What would city of Toronto been decided in Quebec?
Res judicata in Quebec is codified as a presumption and included in chapter in the CCQ and not the CCP.
So, Bachand has gone the civilian way and looked at this under Evidence rather than procedure.
ii. The Litigation Privilege/work product Doctrine
Another rule (like res judicata) aimed at ensuring the efficiency of the adjudicative process, rather than the search for truth
 In fact, sometimes it will actually impair the search for truth, causing the trier of fact to make incorrect findings
The basic rule: A cannot be forced to disclose to B materials/info that came into existence for the dominant purpose of preparing for anticipated or existing
litigation
 Applies to all such information, regardless of relevance
 Even if info is relevant and would arguably lead the fact-finder to draw more accurate conclusions, the fact-finder won’t know about it (unless, of
course, A agrees to disclose it)
 Because the litigation privilege blocks out information that may be highly relevant, it goes against search for truth.
 But at the same time it insures the efficiency of the fact finding process and preserves the integrity of certain relationships (public policy reasons).


Pre-existing materials/information not covered
Confidentiality is completely irrelevant – material doesn’t need to be confidential to be covered
o E.g. if you are a lawyer and have a meeting with a witness in a Tim Hortons with other people at the table, with no expectation of
confidentiality, the conversation will still be covered by the litigation privilege

Typical of common law jurisdictions (incl. Quebec); no functional equivalent in civil law jurisdictions

Scope of the privilege and comparison with the legal advice privilege
o Legal advice privilege is narrower in that it only covers communications between legal adviser and client (Blank, par. 26-28)
o Legal advice privilege is broader in that it covers such communications even if they were not made for purpose of preparing for anticipated or
existing litigation
Rationale: why protect materials/information that came into existence while preparing for anticipated or existing litigation?
 Rationale has to do with ensuring the efficiency of the adversarial process
134
o
o
o


Remember that the judge and jury are neutral parties in traditional CML understanding
Blank, para. 27: “Its object is to ensure the efficacy of the adversarial process…”
Idea is that if parties know that the info they disclose will be protected in the future, parties will feel free to investigate their case fully, test out
possible arguments, interview more witnesses
o In other words, allow the parties a zone of privacy to create the best possible case to confront the opponent’s case, so that the truth has the
maximum chance of emerging
Applies just as much when the litigant is not represented by a lawyer: self-rep still needs a zone of privacy to test arguments and make the best possible
case
o E.g. if one of the litigants consults an expert and it turns out the expert’s opinion doesn’t support his case and he decides not to use it, it’s
necessary that the opponent can’t access this dropped opinion, or it will dissuade the litigant from consulting experts in the first place
Parallel between decrease in privilege’s scope and contemporary evolution of adversarial model (judge more active, party has less control)
The line between dominant and substantial purpose can sometimes be a bit unclear - EXAMPLE
 Suppose I burn down my house, and the insurer sends somebody to make a report
 I want to get my hands on this report, thinking it might help me in my subsequent litigation
 The insurance company can only stop me if:
o First, they can show that at the time the reports were prepared, litigation was anticipated
 It would be unlikely here that the company would succeed if the report was prepared right after
o Second, they could show that the dominant purpose of the reports was the company’s preparation for anticipated litigation.
 Hard to say: it may later turn out to be useful for the insurance company’s case, but at the time it is made, this is not clear (although
you could argue that some calls clearly indicate that litigation was on the way)
 It would be unlikely that company could succeed because as a matter of practice, these reports are prepared on a routine basis, so there
is an administrative/business purpose for their coming into existence.
 What about witness statements prepared by the insurance company’s lawyers in their own investigation, made a few weeks after your action was
launched?
o It is more likely that the dominant purpose of the coming into existence of this information was preparation for action you had launched. Thus,
the document would fall within the ambit of the litigation privilege.
Currently, there is a trend toward DECREASING the scope of the litigation privilege
 Shift from substantial purpose test (the former test) to dominant purpose test
o I.e. the information has to have come into existence for the DOMINANT purpose of preparing for litigation; not enough that preparing for
litigation was a substantial reason for the creation of the information
o Thus, decrease in the amount of material that will be protected by the test
o You cannot pre-characterize the document – the qualifications belong to the judge and not to parties. For instance, should “dominant purpose
for litigation” be written on a document, it is up to the judge to decide whether this was the true dominant purpose, based on investigation into
preparation of document as compared to others.
 US courts’ discretionary power to set privilege aside
o Not clearly accepted in Canadian case law, though some authors are pushing for it
o Idea is that if one party can establish a strong prima facie case that the trier of fact will make a wrong decision without the evidence, and the
case is of serious public interest (?), the judge has the discretion to admit the evidence
o This means it is no longer an absolute privilege, but a relative privilege.
o Bachand: this is dangerous
 The idea is that parties must be confident in their relationships – this is a legitimate interest.
 The moment that door is slightly opened, it is like not having any privilege at all, which may have a chilling effect.
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
This sacrifices the search for truth with the effectiveness of the adjudicative system – it makes sense to try to balance the two.
Exception to the litigation privilege doctrine
 Privilege does not protect from disclosure “evidence of [party’s] abuse of process or similar blameworthy conduct” (Blank, par. 44)
 Upon prima facie showing of actionable misconduct by other party, access may be granted
 Unlike US exception, this is not a discretionary exception
Termination of the litigation privilege doctrine
 Privilege ends with termination of litigation
 Exception: survives if sufficiently-related litigation pending or anticipated
o Blank: civil action for fraud, conspiracy, perjury and abuse of prosecutorial powers not sufficiently related to initial criminal case
o “It springs for a different juridical source and is in that sense unrelated to the litigation of which the privilege claimed was born.” (par. 43)
Conclusion: We are witnessing a narrowing of the privilege rule as the common law is shifting away from the passive role of the judge. There is an interesting
parallel here.
Civil law note: There is NO functional equivalent in the civil law tradition, and there should not be when you think of the rationale.
 For this matter, Quebec is common law jurisdiction. There are some slight differences, but generally, the rule applies to QC
Blank v. Canada (Minister of Justice) SCC, 2006 (not in Casebook)
Facts
 Canada prosecutes Blank several times for regulatory offences
 Eventually all the charges are defeated or blocked
 Blank sues the government for abuse of its prosecutorial powers, conspiracy, etc.
 He demands the files that were prepared against him
 This produces a potential litigation privilege problem, since the information in question may have come into existence for the dominant
purpose of preparing or anticipated or existing litigation
o Note that this is a rule that may suppress the search for truth
o But the larger goal of fairness is considered worth the sacrifice
Issues
Does litigation privilege extend after the end of the litigation the communications were prepared for?  NO!
Ratio
Fish
 The reference to “solicitor-client privilege”, in s. 23 of the Access Act, was intended to include the litigation privilege (which is not
elsewhere mentioned in the Act)
 Question is how long litigation privilege lasts
 The answer is that it lasts until the litigation is was prepared for is over (unlike solicitor-client privilege)
o “The privilege may retain its purpose — and, therefore, its effect — where the litigation that gave rise to the privilege has
ended, but related litigation remains pending or may reasonably be apprehended” (para. 38)
o “At a minimum, it seems to me, this enlarged definition of “litigation” includes separate proceedings that involve the same or
related parties and arise from the same or a related cause of action (or “juridical source”). Proceedings that raise issues
common to the initial action and share its essential purpose would in my view qualify as well.” (para. 39)
 However, in the present case, the litigation the documents were prepared for is absolutely over – thus, the documents are no longer covered
by the litigation privilege
 “Seeking civil redress for the manner in which those proceedings were conducted, the respondent has given them neither fresh life nor a
posthumous and parallel existence”
 Note that, even if the privilege had not expired, “the party seeking their disclosure may be granted access to them upon a prima facie
136

showing of actionable misconduct by the other party in relation to the proceedings with respect to which litigation privilege is claimed”
(para. 45)
(Note special considerations because the defendant is the government: paras. 51-57)
Comments
 “Litigation privilege … is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well,
communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its
object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this
purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial
interference and without fear of premature disclosure.” (para. 27)
 “The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.”  not a partner to solicitorclient privilege (which is more broadly interpreted)
C. EXAMPLES OF RULES PRIMARILY AIMED AT SAFEGUARDING EXTRINSIC PUBLIC POLICIES



Extrinsic public policies, because they are extrinsic to the adjudicative process
Such rules exist in all legal systems, and they can be grouped in two basic categories:
1.
Rules that limit admissibility of evidence because of the nature of the information to which the evidence relates; e.g.
 Communications involving professionals
 Information relating to the resolution of disputes
 Communications made in an attempt to settle a dispute
o E.g. if during a settlement, one party says to the other “I don’t think this part of my case is very strong”
 Mediation privilege
 Adjudicative privilege
 Governmental information
 Covered by both CML and statutory rules that guarantee the confidentiality and privileged nature of things like cabinet
discussions
 Idea is that government needs their own zone of privacy to make good policy: don’t want the choking effect of facing future
litigation for what they say
 However, the current trend is to narrow this privilege: especially when they deal with commercial issues (like awarding
contracts
2.
Rules that limit the admissibility of evidence because of the manner in which it was obtained
We will focus on professional privileges and improperly obtained evidence
i) Rules that limit admissibility of evidence because of the nature of the information to which the
evidence relates
This section includes 3 categories of rules:
(a) communications involving professionals
(b) information relating to the substance of the dispute
137
(c) public interest immunity and governmental secrets
All these rules focus on the nature of the information to which the evidence relates. Even if the evidence is really relevant, the
UNIDROIT
P.18 – Evidentiary Privilege and Immunities – (1) effect should be given to privileges, immunities, and similar protections of a
party or nonparty concerning disclosure or production of evidence…(2) the court should consider whether these restrictions
may justify a party’s failure to produce evidence in deciding upon drawing adverse inferences…(3) the court should recognize
such restrictions in exercising authority to impose direct compulsory sanctions on a party or nonparty
All legal systems recognize various privileges (self-incrimination, confidentiality of professional communication, etc.) but the
conceptual and technical bases of these protections differ, as do the legal consequences of giving them recognition…the
weight accorded to various privileges differs from one system to another and the significance of the claim may vary according
to the context…these factors are relevant when the court considers whether to draw adverse inferences from a failure to
produce evidence…18.2 and 18.3 distinguish between drawing adverse inferences and imposing sanctions…in some systems,
privilege must be claimed and effect should be given to the procedural requirement that this be so
R.25.1 – All relevant evidence, except that which is privileged, is admissible, including circumstantial evidence…
R.27 – Evidentiary Privileges – evidence may not be elicited in violation of: the right of confidentiality of the legal profession,
including attorney client privilege, confidentiality of communications in settlement negotiations…a privilege may be forfeited
by, for example, omitting to make a timely objection to a question or demand for information protected by privilege (the court
in the interest of justice may relieve the party of that forfeiture)…a claim of privilege made with respect to a document shall
describe the document in detail sufficient to enable another party to challenge the claim of privilege
Privileges exclude relevant evidence…they have evolved over time and reflect various social interests (organized profession
interested in protecting their members’ activities)…statutory law has extended the list of professional privileges, which have
significant cost in the quality of proofs and discovery of truth…there is full effect given to attorney-client privilege, which is
given different meanings in the civil and common laws…
IBA Rules
9(2) – The Tribunal shall, at the request of a party or on its own motion, exclude from evidence or production any document,
statement, oral testimony or inspection for any of the following reasons:
b) legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable
e) grounds of commercial or technical confidentiality that the Arbitral Tribunal determines to be compelling
f) grounds of special political or institutional sensitivity (including evidence that had been classified as secret by government
or a public international institution) that the Arbitral Tribunal determines to be compelling; or
g) considerations of fairness or equality of the Parties that the Arbitral Tribunal determines to be compelling
a. Communications involving professionals


Common law and civil law have markedly different approaches.
o At common law, there are very few professional privileges
o In civil law jurisdictions, we are much more willing to limit the truth so as to promote the professional relationships; civil lawyers are willing to
afford significant privileges to communications with professionals.
When you focus on just the issue of confidentiality, you really get the impression that truth matters a lot more in civil law than in common law. This,
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however, must be qualified.
Common Law
 Traditionally, only communications involving legal advisers were privileged
 Communications between doctors, etc. were not privileged
 This doesn’t mean that doctors etc. didn’t have duties of confidentiality – obviously they did – but these duties didn’t trump the search for truth
 In many common law jurisdictions, privilege has been extended -- through judicial or statutory reform – to other communications involving
professionals (most often professionals of the health care sector)
o E.g.: USSC decision in Jaffe re: psychiatrists (mentioned in Ryan); communications involving accountants privileged in some US states
o Yet, there remains a general reluctance, in common law jurisdictions, to extend privilege to communications involving other professionals
 Illustration of this reluctance: Ryan and communications between physicians and their patients
Civil Law
 As a rule, all communications with professionals are privileged
 In France, not only are communications between lawyers and clients are protected but also between midwives, nurses, priests… this has lead authors to
say there was an all encompassing privilege for professionals communication
 Quebec is much closer to the CVL than the CML position
 In Quebec, there are more than 41 professions bound by law to professional secrecy!
o The fact that this rule is in the charter shows the importance of this idea
 Expansive interpretation of “confidential information revealed to him by reason of his position or profession” (confirmed implicitly in Foster Wheeler
and Glegg)
 Do courts have a discretionary power to set it aside when considering truth is more important?
o There is a trend that seems to say courts have such a discretionary power. Glegg suggests that such discretionary power does exist (see par. 17)
o On the other hand, Royer says it makes no sense: absent any specific provision, courts should NOT consider they have such a discretion.
 He is also making a civil law argument: all the Charter cases have been influenced by common law cases that have no place in civil
evidence law!
o Bachand thinks it would be a good idea to have this discretion in Quebec.
CCQ 2858
(1) 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.
Quebec Charter, art. 9:
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
Apparent (but not actual) loopholes in art. 9
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Text seems to cover only information going from the client TO the professional (whereas privilege also covers information going the other way)
o However, the courts use an expansive interpretation of “confidential information revealed to him” – at least in the case of legal advisers,
physicians – to include ALL communications
o Foster Wheeler and Glegg, implicitly
Text seems to apply only when disclosure is sought from professional, but in fact it also applies when sought from client/patient
o Foster Wheeler, implicitly
What is the deal with this sloppy drafting?
o Bachand: maybe intended to show that art. 9 is not an exhaustive description of privilege
Imwinkelried, E.J., “The New Wigmore”: An Essay on Rethinking the Foundation of Evidentiary Privilege” (p. 483)


Dean Wigmore’s multi-volume Evidence treatise: one of the monumental achievements in Anglo-American law
This essay critiques the instrumental theory of evidentiary privileges  favours an alternative, more humanistic rationale to supplement the instrumental
theory
Description of Wigmore’s Instrumental Theory
 The starting point is a behavioural assumption: the typical layperson would neither consult with nor divulge to a confidant (such attorney or therapist),
but for the assurance of confidentiality furnished by a formal evidentiary privilege
 Thus, the evidentiary privilege is a means of promoting desirable social relationships
 “Cost free” because the evidence wouldn’t have come into existence without the privilege anyway (client wouldn’t have confided)
 Thus, there ought to be a relatively small number of privileges: not many relationships where a layperson would avoid disclosure unless protected by an
evidentiary privilege
o Wigmore was especially critical of a broad medical privilege: usually ill people will divulge to their doctors even without privilege
 But, the few privileges recognized had to be “absolute” in character, in that the layperson had to know when he made his revelation whether it would
subsequently be protected or not (judge couldn’t just override the privilege because of an acute need for the information)
o Otherwise the purpose of the privilege would be defeated, since no one would confide
The Weakness in the Instrumental Theory
 This theory doesn’t justify all of the privileges Wigmore advocated
o E.g. clergy-penitent relation: confessions are likely to be made even without privilege, since salvation is worth more than escaping a civil or
even criminal penalty [Nick: this presumes a very specific view of religion]
 Empirical studies cast further doubt on the proposition that laypeople wouldn’t consult or confide absent an evidentiary privilege
o Rather, they rely on the confidant’s sense of professional ethics
o They are usually more concerned about out-of-court revelation to third parties (such as employers) than in court, since most revelations take
place before “ a lawsuit is ever dreamed of” – “the world does not revolve around the courtroom to the extent that Dean Wigmore assumed”
 The theory is inadequate as a normative justification for privilege doctrine, since it depends on the existence of certain subjective states of mind – an
expectation of privacy and an unwillingness to communicate absent a formal evidentiary privilege
A Proposal for a Supplementary Humanistic Theory, Based on Autonomy or Decisional Privacy
 Potential bases other than autonomy
o A general right to privacy
 However, this encompasses a large range of rights, some of which have nothing to do with privileged relationships
o A right to informational privacy – freedom from scrutiny
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 However, it would be unwise to tie privilege doctrine to this alleged right, since it isn’t settled
Autonomy!
 Rests on the Kantian notion that government must “esteem citizens as ends” – not just as means to achieve collective ends
 The individual is entitled to make life choices, and some receive special constitutional protection
 Sometimes an individual needs to consult other members of society in order to make an informed choice, which increases the intelligence and genuine
autonomy of that choice
o The person may also need to consult family members, for altruistic reasons
 However, the person seeking consultation is vulnerable to manipulation by the person he is consulting with, thus risking a decrease in autonomy  this
causes a dilemma
 According to the positive theory of freedom, the state should intervene to protect the autonomy of its citizens where the threat to autonomy is significant
o To do so, the state must create conditions conducive of trust – allow the person to trust that the consultation will not compromise his autonomy
o Person should be able to trust that they can advance all the information the consultant needs, that the consultant will not allow his own or
anyone else’s interests to interfere with the tenor of the advice, that the consultant will not be afraid to provide unconventional or unpopular
advice, etc.
o Society can promotes these goals in several ways: impose substantive fiduciary duties, for one
o Can also establish conditions of privacy conducive to trust
 Privacy is not an end in itself or a primary right – it is a derivative right arising from the fundamental right to autonomy
 Works both ways: if a consultant knows that his advice won’t be revealed to the public, he will be more willing to provide his true
opinion
The Consequences of Recognizing a Supplementary Humanistic Theory Based on Autonomy
 Extending privilege protection to additional social relations
o Medical privilege – health aids the person to pursue his life plan – privacy enables the patient to make better-informed, more independent
choices
o Familial privileges extending beyond the spousal
o Wouldn’t be revolutionary: France and Germany already recognize way more privileged relationships than the US
 Classifying privileges as qualified
o In liberal democratic theory, few rights are absolute: the right to autonomy or decisional privacy included
o Thus, if the opposing litigant can demonstrate a compelling need for the privileged information and the holder has only a minimal privacy
interest, the privilege can yield
 Not as big a deal as it might seem – even purportedly absolute privileges are already qualified in lots of criminal cases
1. Lawyer-client communications
Application of the privilege rule:
 Only applies to communications made between client and legal adviser
o Thus, if you bring a bunch of pre-existing documents for your lawyer to see, and he sticks some post-it notes on them with bits of advice, the
post-it notes are privileged but the documents are not
o Doesn’t matter if the lawyer actually sent the communications, only that he intended to send them (thus, if a lawyer writes a letter to a client
and then dies before he sends it, the letter will still be privileged)
o Three Rivers (UK): mere employees aren’t clients if the client is a corporation – has to be upper management
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
Only applies if all conditions are met:
(a) Communications must have been made in confidence
 If you go to a lawyer to get advice along with another person who is not involved in the litigation at all, chances are confidentiality
will be lost
 Keep in mind this is a grey area, and there is always some wiggle room
 Think about the underlying rationales for this law and build an argument based on this
 The problem of confidentiality arose in Foster Wheeler (QC). At trial, the court ruled that the third party consultant who was present
when the communications were made was not bound by any privilege. The SCC, however, adopted a more broad approach to
confidentiality, and ruled that the third party consultant retained in the course of the litigation and present during conversations
between the client and his lawyer is bound by confidentiality.
(b) Communications must have been made for the (dominant) purpose of seeking legal advice (whether in a litigious context or not)
 This gets fuzzy in the context of corporate counsel or government lawyers, who wear some very different hats, not all of them strictly
legal
 In Foster (QC), a firm had started giving business advice to its client. This mixed mandate was not protected in the privilege – line
drawn here
 Three Rivers (UK): strict interpretation of “dominant purpose”  not found in that case (illustrates traditional CML reluctance with
regard to privileges)
 Also, if the lawyer gives advice on how to break the law, this isn’t privileged because it isn’t considered legal advice
(c) Client must not have waived privilege
 Waiver can occur implicitly
 E.g.: waiver through disclosure to third party
 If inadvertent disclosure, no intention to abandon privilege, courts tend to conclude that no waiver occurred
 The waiver can only emanate from the client who is the beneficiary of the solicitor client privilege.
 There are no public policy reasons for not being able to waive such a right
 In Portneuf (QC), the client had implicitly waived his privilege when it invoked legal advice received to justify the delayed issuance
of a license.
 When a defendant invokes for its own benefit communications it had with its legal advisors, this constitutes an implicit
waiver.

No discretionary power to set privilege aside on ground that in a given case, search for truth ought to prevail
Common Law
Three Rivers District Council v. Bank of England
(Illustrates typical CML reluctance with regard to privileges)
Facts :
• Interlocutory appeal in relation to disclosure of documents in which the appellants, the liquidators & creditors of BCCI, are suing the Bank of England for
misfeasance in public office.
• Bank claims legal professional privilege for numerous documents which came into existence between the time when BCCI collapsed & the time when they made
their final submissions to the Bingham Inquiry. Three Rivers are trying to get their hands on documents prepared by the bank’s employees. The bank was relying
on the privilege to avoid having to turn over these documents.
• Bank had appointed 3 officials (the “BIU”) to communicate with Freshfileds (Bank’s solicitor) and to prepare the evidence & submissions to the Bingham Inquiry.
• Bank submits that any document prepared with the dominant purpose of obtaining the solicitor’s advice comes within the ambit of “legal advice privilege”.
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•
•
The appellants claim that documents prepared by the Bank’s employees or ex-employees, whether prepared for submission to or at the direction of Freshfields or
not, should be disclosed as being no more than raw material on which the BIU would, thereafter seek advice.
Judge concludes in favour of the Bank.
Issues:
1. Does legal advice privilege extend to documents prepared by Bank employees, which were intended to be sent to and were in fact sent to Freshfields?
2. Does it extend to documents prepared by Bank employees with the dominant purpose of the Bank’s obtaining legal advice but not, in fact, sent to Freshfields (though,
perhaps, their effect was incorporated into documents that were so sent)?
3. Does it extend to documents prepared by Bank employees, without the dominant purpose of obtaining legal advice, but in fact sent to Freshfields?
Held:
• Documents passing between the BIU & Freshfields are privileged.
• The privilege doesn’t extend to any of the documentation or internal memoranda of the Bank’s employees.
Ratio: Longmore LJ:
• The Bank does not claim the documents are covered by litigation privilege but rather by “legal advice privilege”, i.e. privlege in relation to legal advice that is not
founded on the existence and contemplation of litigation. The reason the bank does not seek to rely on litigation privilege is that it has been held to be reserved to
adversarial proceedings. The inquiry here is not adversarial but rather a private non-statutory inquiry.
19th century case law
• At first, there was no distinction between the lawyer client privilege and the legal advice privilege.
• Cite Anderson case: information given by an employee to an employer doesn’t in itself attract the legal advice privilege even though it is intended that it be shown
to a solicitor. But if it is intended to be shown to a solicitor in the context of existing or contemplated litigation, it will fall in the litigation privilege.
• -Cite Southwark case where the context was solely a litigation privilege (and could not address the question of the documents produced by the BIU by Bank
employees).
• -Cite Wheeler case which makes clear that legal advice privilege doesn’t extend to documents obtained from 3rd parties to be shown to a solicitor for advice.
• -Court agrees with 19th century authorities which established that legal advice privilege could not be claimed for documents other than those passing between client
& legal advisor (at that time there was no distinction between litigation and legal advice privilege).
Later development
• Appellants argue even if the law of the 19th century was as stated, it has been elaborated by developments in the field of the law of discovery that happened in the
20th century.
• Cite Balabel case which doesn’t support wider application of the privilege to memoranda supplied by employees for the purpose of being sent to the client’s
solicitor. Balabel is not authority for extending the privilege.
Dominant purpose
• It is unnecessary to express a view on the question whether the internal documents of the Bank were indeed prepared with the dominant purpose of obtaining
advice. It was an important purpose, but not the main one,
• The “dominant purpose” of the preparation of the documentary material supplied by Bank employees to the BIU (or Freashfields) wasn’t to obtain legal advice.
The dominant purpose it was prepared for was so the Bank could comply with its primary duty of putting all relevant factual material before Bingham LJ.
• If it can be seen upon analysis that the dominant purpose isn’t that of obtaining advice, as will seldom be the case where a national institution is gathering evidence
to put before an inquiry, then it is the court’s duty to say so.
Comments:
• Q: in a corporate entity, who is the “client”?
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•
•
BOE had sought legal advice re: public inquiry.
3 categories of docs prepared by employees were sought:
 Some were prepared for specific purpose of being sent to lawyers and were indeed sent o to lawyers
 Some were prepared for specific purpose of being sent to lawyers but were not sent to lawyers
 Some were not prepared for specific purpose of being sent to lawyers but were nonetheless sent to lawyers
The CA: “Mere employees are not clients”: privilege only applies to communications between lawyers and senior employees specifically mandated to
manage issues re: public inquiry.
The CA also found that, on these facts, seeking legal advice was not the dominant purpose of preparing these documents.
More comments:
• The issue is whether or not these internal documents can be covered by the solicitor –client privilege.
• The key fact was that the documents were prepared in a context of private inquiry, which is not a judicial proceedings. The court of appeal judgement
makes it clear it cannot be litigation privilege, because it was not in a judicial proceeding.
• The issue of the purpose of the documents comes up at the end of the case, in obiter.
• At the end of the case, you can wonder why the law is so unclear
• There was an issue as to whether this was really legal advice
• The court seems to take a strict approach
• This case was strongly criticized
• The interesting thing is that the documents had been prepared by mere employees of the bank, as opposed to senior officers. The court says that with
respect to corporate communications betweens employees and clients will be treated as communications between lawyers and clients- not lawyer and
client. This goes to far and it not in lien with Us law, which takes a much more liberal view
Civil Law
Récupération Portneuf Inc. v. Saint-Alban (Paroisse de), [1999] R.J.Q. 2268 (Qué. C.A.)
Facts
 Corporation asks the municipality for a license. The municipality refuses. The corporation sues
the municipality alleging that the decision was taken in bad faith and that the corporation was
improperly denied the license.
 The municipality refutes the allegation by using a letter from their legal counsel stating what the
municipality should do (i.e.: that they should not grant the license to the corporation).
Issues
What about the legal advice privilege?
Holding
The municipality forsook the legal advice privilege when it turned the lawyer’s opinion into a fact in
issue.
Reasoning
 The municipality wants to prove its non-negligence by showing what the lawyers said to do.
 Essentially the holder of the privilege is, through the statement of defense, turning the privileged
document into a fact in issue.
 The Court comes to the conclusion that when a client specifically invokes, in subsequent
litigation, communications with its lawyer to say “I acted like I did because my lawyer told me it
was OK”, the communication becomes a fact in dispute and the opponent can have access to it to
fully investigate it.
Comments:
• This illustrates a question that comes up often, and the court’s answer is typical
• It is about waiver: a civil action was launched against the municipality by a plaintiff who was claiming that municipality has not handled properly the
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•
•
request to issue a license. The municipality in defence, refers to communications it made to its own lawyers. It is saying they acted reasonably because they
asked legal advice. The plaintiff asks disclosure of the legal communications in order to assess the accuracy of the allegations made by the municipality
The court of appeal held that where the client invokes communications made with his or her legal advisor in an attempt to further his or her own case,
because you think by doing so you will advance your case, you cannot claim privilege in response to an attempt made by your opponent to obtain more
information because an implicit waiver will be inferred from your decision to invoke those very communications.
The fundamental rules of civil procedure make it perfectly logical for the other party to obtain that information.
In some situations it can be harder because there can be debates in practice as to the extent of the waiver. The legal advice might have been on many
things, and then it will be difficult to determine the specific scope of the waiver.
Foster v. Société intermunicipale de gestion et d’élimination des déchets (SCC from Quebec)
P. 189
Facts:
• This appeal is incidental to an action for damages brought by the respondent, Foster Wheeler Power Company Ltd. ("Foster"), against the appellant, the
City of Montréal ("the City"), further to the cancellation of a project involving the construction of a solid waste recycling centre and a municipal
incinerator ("the project").
• During examinations on discovery after defence, Foster's lawyers and lawyers representing some of the interveners wanted to ask witnesses questions
about information related to certain aspects of the project that was obtained from lawyers representing the municipal authorities in the matter of that
project.
• Although the appellant objected that these questions violated professional secrecy, the Quebec Superior Court and the Quebec Court of Appeal allowed a
certain number of these questions.
Issues:
This appeal concerns the scope of professional secrecy in Quebec civil law and the means of exercising it, specifically with respect to one of its components,
namely, the immunity from disclosing confidential information to others in a judicial proceeding.
Decision:
LEGAL FRAMEWORK OF PROFESSIONAL SECRECY IN QUEBEC LEGISLATION
• Professional secrecy has two components that form the basis for its creation and protection.
• The first component recognizes the confidentiality of information generated by the lawyer-client relationship. Clients have the right to expect their legal
advisers to remain silent about such information.
• This obligation of confidentiality gives rise to an immunity from disclosure which, except in limited circumstances, protects clients against the disclosure
of that information, particularly in judicial proceedings
•
•
•
The dual origins of the principle of professional secrecy in Quebec law and the use of a legislative technique to shape the creation of the substantive
right, the protection of its content against disclosure and the exceptions within the same texts help explain the semantic difficulties encountered in the
case law, especially when transferring the relevant concepts from French into English.
For example, in Smith v Jones (the French translation of the opinion of Cory J.), the words "secret professionnel" are used to translate "solicitor-client
privilege".
To avoid this type of problem, we must always bear in mind the rich and diverse content of the concept of professional secrecy and know how to
distinguish the components touched upon by the specific issues referred to the courts. Instead of speaking about professional secrecy in indiscriminately
and carelessly chosen terms, we must first determine whether we are concerned with the obligation of confidentiality or the right to silence, or with the
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immunity from disclosing confidential information, or with both.
•
In the context of Quebec's statutory framework, the term "professional secrecy" refers to this institution in its entirety. Professional secrecy includes an
obligation of confidentiality, which, in areas where it applies, imposes a duty of discretion on lawyers and creates a correlative right to their silence on
the part of their clients. In relation to third parties, professional secrecy includes an immunity from disclosure that protects the content of information
against compelled disclosure, even in judicial proceedings, subject to any other applicable legal rules or principles.
A. Content of the Lawyer's Obligation of Confidentiality
• As important as professional secrecy may be, it does have its limits. Not every aspect of relations between a lawyer and a client is necessarily
confidential. The exigencies of other values and concern for competing interests may sometimes necessitate the disclosure of confidential information.
• It would be inaccurate to reduce the content of the obligation of confidentiality to opinions, advice or counsel given by lawyers to their clients. While
this is, on many occasions, the main goal in creating a professional relationship with a lawyer, it is often the case that this relationship can also entail
some highly diverse activities, such as representing clients before various tribunals or administrative bodies, negotiating or drawing up contracts,
preparing reports, filling out various forms and having discussions with members of governing bodies of public entities or private corporations.
• Despite the intense nature of the obligation of confidentiality and the importance of professional secrecy, not all facts and events that lawyers deal with
in the execution of their mandates are covered by professional secrecy, nor does the legal institution of professional secrecy exempt lawyers from
testifying about facts involving their clients in all situations.
• It is unrealistic to expect that we could set absolutely clear and simple rules and tests that would leave trial courts with no margin of uncertainty or
individual discretion in such matters. Solutions will vary and must be tailored to the circumstances of a case.
Conclusion: the questions aim solely to obtain information about two specific facts: the identity of the project submitted to the regulatory approval process
and the status of that process. In both cases, this sort of information does not engage an obligation of confidentiality on the part of the lawyer, and the
disclosure of this information is not prohibited. As the Court of Appeal concluded, these questions could, within the limits of the new formulation given to
them by counsel for the respondent, be asked in the context of discovery. Any problems raised by or subsequent questions stemming from the answers to
these questions could be dealt with by the trial judge.
B. Production of Documents
• Many of these documents are alleged to be covered by an immunity from disclosure, which in Quebec civil law is roughly equivalent to the common
law's litigation privilege. This privilege protects documents prepared by a lawyer for the purposes of contemplated or ongoing litigation. Although
originating in the common law, litigation privilege is now being absorbed into the Quebec civil law concept of professional secrecy. In Quebec's law of
evidence in civil matters, these documents are effectively treated as being confidential and protected by an immunity from disclosure
• The appellant's argument would have us ask judges not to carry out one of their core functions in the consideration of evidence, based on the unverified
and unverifiable statement of the appellant's counsel.
• The fate of these objections cannot be decided on the mere basis of one party's unilateral declaration. The judge must carry out the function of verifying
these documents, as the Court of Appeal rightly decided
C. Waiver of Confidentiality
• The Court ruled that the mere presence of a professional facilitator hired for the purpose of chairing that meeting implied a waiver of professional
secrecy, given that a third party attended the meeting in question.
• - This conclusion is incorrect, given the circumstances of this case.
Foster Wheeler Power Co. v. Société intermunicipale de gestion des déchets (SIGED) Inc. (SCC from Quebec)
2004, p. 127
Facts
• The Société intermunicipale de gestion et d'élimination des déchets (SIGED) Inc. ("SIGED") and
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Issues
Holding
Reasoning
the Régie intermunicipale de gestion des déchets sur l'île de Montréal (the "Régie") were given
responsibility for preparing and carrying out an incinerator project in Montreal. SIGED and the
Régie retained two lawyers, Meunier and Picotte, to assist them with obtaining required
authorizations.
• These legal advisors advised the city all the time on numerous matters (complex mandates).
• Foster Wheeler Power Co. contracted to construct the incinerator. Subsequently, when political
support for the incinerator disappeared and the contract was resiliated, Foster sued SIGED and
the Régie.
• During examinations for discovery, Foster and the interveners sought to question various people
about information Meunier and Picotte had provided to their clients and to examine certain
documents that had been provided by Meunier and Picotte. Some of this information was
provided at meetings of the Régie for which a professional facilitator had been hired.
• SIGED and the Régie (together=the municipality) objected to the questions, claiming that the
information was protected by professional secrecy.
• The trial judge dismissed most of the objections, ruling that the questions sought only factual
information that was not protected by professional secrecy.
Was this information protected by professional privilege?
No.
• Under Quebec's civil law, professional secrecy imposes an obligation of confidentiality upon
lawyers and protects their clients against even forced disclosure to third parties.
• Not every communication between a lawyer and client attracts professional secrecy. To
determine whether a particular communication is covered by professional secrecy, it is sufficient
for the party claiming professional secrecy to establish that a general mandate had been given to
a lawyer for a range of services generally expected of a lawyer in her professional capacityThe
opposing party would then have to show that the information sought was not subject to the
obligation of confidentiality nor to immunity from disclosure or that the law authorized
disclosure despite professional secrecy.
• In a complex and prolonged mandate, there was a rebuttable presumption that all
communications between lawyer and client were confidential. This presumption shifts the
burden on the information-seeking party to show that what they’re seeking is not covered by the
privilege.
In this case, several of the questions related simply to the identity of the project submitted to the
regulatory approval process and the status of that process, i.e. specific factual information. This
information did not engage an obligation of confidentiality, and disclosure of those facts should not
be prohibited.
•
The court rejected the argument that the trial judge should not look at the documents in question
in resolving this issue so as to avoid the judge being influenced by the content of documents
alleged to be inadmissible. Every day, judges must rule on the admissibility of evidence that they
must inspect or hear before excluding, and this duty is an indispensable part of their role in the
conduct of civil or criminal trials. Judges understand that they must disregard any evidence that
they deem inadmissible and base their judgments solely on the evidence entered into the court
record.
•
The court also addressed the question of waiver of confidentiality (since third parties were
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Ratio
present when advice was given). In this case, the professional facilitator had been hired to act as
Chair at meetings of the Régie which were held in camera. It was clear that the meetings were
intended to be confidential. In the circumstances, this did not amount to a waiver of
confidentiality since the facilitator was hired as an agent.
Problem of lawyers playing various roles (general mandate, more than just providing legal advice).
The privilege extends only to legal advice.
- We cannot infer from this procedure an implied waiver of professional secrecy with regard to communications made by the lawyers who took part in the
meeting in the capacity of legal advisers of the SIGED and the Régie.
2. Doctor-patient communications


In many common law jurisdictions, privilege has been extended – through judicial or statutory reform – to other communications involving professional.
Yet, common law jurisdictions still remain reluctant to extend the privilege to other types of professions. As a result, the extension has been on a caseby-case, and ad hoc approach.
Ryan illustrates common law’s reluctance towards extending privilege to communications involving other professionals.
Common Law
A. (M) v. Ryan (SCC from B.C., 1997) (CML), p. 9
Facts:
• When the appellant was 17 years old, she underwent psychiatric treatment from the respondent R. In the course of treatment, R had sexual relations with her.
He also committed acts of gross indecency in her presence.
• Appellant later sought counselling with P; notes were taken and reports were made
• The appellant was concerned that communications between her and P should remain confidential, and P assured her that everything possible would be done to
ensure that this was the case.
• At one point, the appellant's concerns led P to refrain from taking her usual notes.
• At the hearing before the Master of R's motion to obtain disclosure, P agreed to release her reports, but claimed privilege in relation to her notes.
o R probably thought they could be useful in challenging causation (e.g. if there were other contributing factors)
• The Master found that P had no privilege in the documents and ordered that they all be produced to R.
• The British Columbia Supreme Court affirmed that decision. P's appeal to the Court of Appeal was allowed in part. The court ordered disclosure of P's
reporting letters and notes recording discussions between her and the appellant.
• The disclosure ordered was protected by four conditions: that inspection be confined to R's solicitors and expert witnesses, and that R himself could not see
them; that any person who saw the documents should not disclose their contents to anyone not entitled to inspect them; that the documents could be used only
for the purposes of the litigation; and that only one copy of the notes was to be made by R's solicitors, to be passed on as necessary to R's expert witnesses.
Issues:
She is claiming for moral injury caused by Ryan’s inappropriate sexual behaviour.
Did his behaviour actually cause the prejudice?
Decision:
General principles
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•
•
•
•
•
The common law principles underlying the recognition of privilege from disclosure are simply stated. They proceed from the fundamental proposition that
everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained.
While the circumstances giving rise to a privilege were once thought to be fixed by categories defined in previous centuries -- categories that do not include
communications between a psychiatrist and her patient -- it is now accepted that the common law permits privilege in new situations where reason,
experience and application of the principles that underlie the traditional privileges so dictate
Law can evolve to reflect new developments (e.g. increasing concern over sexual abuse, rise of medical psychology, etc.)
Four principles for determining whether communication should be privileged:
1. First, the communication must originate in a confidence.
 The fact that the communications might have been demanded by a court someday doesn’t undermine this
2. Second, the confidence must be essential to the relationship in which the communication arises.
3. Third, the relationship must be one which should be "sedulously fostered" in the public good.
4. Finally, if all these requirements are met, the 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.
 This determination is one “of common sense and good judgment”
 Courts should be cautious about extending privilege (para. 32)
 Must consider Charter values like privacy, equal treatment, etc.
 Justice requires that the defendant be able to make full answer and defence
 Best solution – partial privilege (limit disclosure to certain people, remove non-essential passages, etc.)
 Documents relevant to a defence or a claim may be released – documents of questionable relevance, or which contain information
available in other sources, may not be
 Fishing expeditions, however, are not appropriate
The appellant's alleged failure to assert privilege in the records before the Master does not deprive her of the right to claim it. If the appellant had privilege in
the documents, it could be lost only by waiver, and the appellant's conduct does not support a finding of waiver.
Issue of whether a judge has to examine each document individually – time consuming (bad for efficiency) but might be necessary for search for truth / other
policy rationales – determined on a case-by-case basis
Dissent (L’H-D) (?)
Comments:
 Court does NOT end up finding a psychiatrist-patient privilege – denies privilege!  Truth prevails!
 Instead they agree to a very limited disclosure: the file is disclosed only to Dr. Ryan’s counsel and his expert
o He himself won’t see it
o And there is a publication ban/sealing order on all the information obtained
 Ratio: the search for truth is so important that courts will allow sensitive information to be viewed, as long as there are unintrusive methods for doing so
 Bachand: not very convincing – we are being told by the legal system that this relationship is very important, but that if courts REALLY WANT this
information, they can get it
o Could have a chilling effect on people going into relationships like this
o A discretionary quasi-privilege is just as good as no privilege: if people aren’t sure their information will be kept private, they won’t be candid
o Rebuttal: non-lawyers don’t think about things like privilege – it won’t effect their decision-making
Civil Law
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Glegg v. Smith & Nephew Inc. (SCC, 2005) from Quebec (CVL), p. 135
Facts
Issues
Holding
Reasoning
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Medical liability case: a surgical procedure went wrong and the patients are suing on the grounds of various types of prejudice
The defendants demand access to the plaintiffs’ medical records on the basis that the plaintiffs are making their medical condition an issue
in the allegation, which, according to the defendants, is tantamount to a waiver of privilege.
Does launching a medical malpractice suit constitute an implied waiver of confidentiality re: all medical records?
No; waiver is limited to relevant medical information
 Case falls under CCQ and CCP; Quebec Charter s. 9
 Unlike in M(A) v Ryan: Quebec legislature has confirmed that the physician’s duty of professional secrecy and the confidentiality of
records are recognized. All that remains is to determine in which cases disclosure of such information is permitted.
 Professional secrecy rules are rules of protective public order
 However, as important as professional secrecy may be, it is not absolute (para. 17)
o Disclosure of confidential information may be required to protect competing interests
o The holder of the right may implicitly or explicitly waive it
 “An implied waiver is inferred from actions of the holder of the right that are inconsistent with an intent to maintain professional secrecy,
or, rather, to avoid the disclosure of confidential information protected by professional secrecy”
 Respondent brought an action which raises the issue of her state of health, its causes and its consequences
 Even if her adversaries had waived an examination on discovery, she still would have had to establish their liability at trial, and would
thus effectively have had to waive secrecy
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Still necessary to establish relevance – this is a critical part of the test
o Defendant must establish that the evidence is relevant not in the traditional sense of the word, but that the disclosure of the
document will be useful, is appropriate, is likely to contribute to advancing the debate and is based on an acceptable objective
(Westinghouse)
Once the information is released, it must be kept in a sealed envelope – access is limited to the parties and their counsel
In the case at bar, the appellants demonstrated both relevance and an implied waiver (resulting from both the nature of the allegations and
the answers given by the respondent during examination on discovery)
o Information sought in this case is relevant and “did not amount to an uncontrolled and unlimited investigation into Ms. Glegg’s
entire medical history.”
o Access to relevant evidence is inevitably linked to the defendant’s right to make full answer and defence
Onus was then on the respondent to argue why the documents should not be produced
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Ratio
46 & 395 CCP recognize general powers of judicial discretion: “In this context, the judge retains the power to take any action that
would both preclude a premature or unnecessary disclosure of confidential information and ensure that he or she can obtain
sufficient information on the nature of the dispute and can guide the proceedings on the issue.”
 No heavier burden could be imposed on the appellants because they already demonstrated the relevance of the requested information
 The trial judge’s decision should have been upheld and the objection to disclosure dismissed
In medical liability actions, a plaintiff who raises their health as a relevant factor implicitly waives confidentiality of their medical records, but only
those records which pertain to the claim.
Can Ryan be reconciled with Glegg?
 Court applies a non-controversial rule that says that in an action like this one, a plaintiff who raises his own health as an issue implicitly waives
confidentiality with regards to this information
 The defendants must be able to test the truth of the plaintiff’s allegations, and a good way of doing this is by giving them access to the plaintiff’s medical
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records; this is an ordinary application of the rule
But is this reconcilable with Ryan? That was exactly the situation in Ryan, and yet this consideration was rejected!
Bachand: Maybe Glegg stands for the principle that in Quebec there is some discretionary power of courts to set privilege aside (para. 17)
ii) Rules limiting the admissibility of evidence because of the manner in which it was obtained
Should the fact that evidence was not properly obtained have a bearing on its admissibility (in civil matters!)?
The traditional common law position has always been that they don’t care how the information was obtained. If it is relevant and otherwise admissible, then it
goes in. The position was essentially the same in Quebec before the coming into force of the CCQ in 1994. Sec. 2858 CCQ changed all this.
CCQ 2858
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.
Departure from traditional common law position whereby manner in which evidence obtained had no bearing on admissibility
Rapprochement with civil law jurisdictions, where improperly obtained evidence tends to be considered to be inadmissible
The judge can, even on his own motion (court has a duty), reject any evidence provided two conditions are met:
 The evidence has been obtained in a manner that breaches fundamental rights and freedoms (note: Bachand says that we do not know what these
fundamental rights and freedoms are)
 Accepting the evidence would bring the administration of justice into disrepute
Houle v. Ville de Maschouche
Facts:
 Houle was ombudsman of the city of Mascouche. She was dismissed on the grounds she had lost the confidence of the duty council and failed in her duty of
loyalty.
 The evidence introduced by the city in support of her dismissal was mostly certain recordings made by her neighbor with a wave scanner. He recorded her
conversations essentially at lunch time and outside business hours.
 After several days of recording, he decided to inform the mayor of Mascouche of the conversations of the Respondent. They both decided the tapes had to be
given to the police, but the mayor wanted to know more.
 Consequently, the neighbor, Guilbault, kept on recording her conversations, and the Mayor’s wife supplied him with additional cassettes and recording
equipment.
 The recordings were then handed over to the police, by mutual consent.
 Houle contests her dismissal.
Issue: Did the trial judge err in law by declaring the recordings of the telephone conversations were inadmissible on the ground that they were made in violation of
the respondent’s right to privacy and that their use would tend to bring the administration of justice into disrepute?
Held: Evidence should be excluded
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Decision:
ROBERT J.A.
(1) Does the Canadian Charter apply to conversations recorded at the request of the mayor of Mascouche?
 Clearly, the Charter cannot apply to the recordings made by Guilbault of his own volition.
 However, it applies to the recordings he expressly made at the request of the mayor.
 He was then acting as an agent of the mayor, and the municipality, which is a government entity.
 It cannot be said that the mayor was acting on his own behalf, since what was at stake was shedding light on a possible lack of loyalty of Houle.
Sec. 2858 CCQ is new law. It provides a mechanism for excluding evidence when 2 conditions are met:
1. The evidence must have been obtained in breach of fundamental rights;
2. Its use must tend to bring the administration of justice into disrepute.
(2) Violation of right of privacy of the respondent
 The right to privacy is a fundamental right and it is at the very core of the democratic system.
 It aims to protect reasonable expectations of individuals in the field of privacy and cannot be analyzed by carrying out an ex post facto review of the content of
the intercepted communications in order to determine whether they do or do not concern the private life of a person.
 Here, Houle’s right to privacy was violated. The recording were made after business hours, while she was in her home, so she had a clear expectation of
privacy.
(3) Whether the administration of justice would be brought into disrepute
Norm of judicial review which applies at this level:
 The SCC has held that the notion of bringing the administration of justice into disrepute calls for a subjective analysis which depends upon certain judicial
appreciation. Consequently, in the absence of an error in principle, a court of appeal should not change the conclusions drawn by the trier of fact.
 However, in the case of an administrative tribunal, such as the commission, the application of sec. 24(2) or sec. 2858 CCQ is to be subjected to the norm of
simple error, in the same way a decision with respect to an issue of fundamental rights would be.
 The commission did not have to listen to the cassettes, as the evidence on the record was sufficient.
Does the criminal case law relating to sec. 24(1) apply in the case of art. 2858 CCQ?
 Because of the fundamental differences between criminal and civil law (i.e. presumption of innocence, requirement that proof beyond reasonable doubt to find
an accused guilty, and the right of any accused not to testify against himself), the criminal case law cannot be applied as such.
 However, the factors laid down in criminal matters in connection with the interpretation of sec. 24(1)- in R v. Collins- can serve as guides for the purposes of
analysis under art. 2858 CCQ mutatis mutandis.
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Trial fairness : in civil matters, self incrimination had little importance so the criteria of trial fairness will apply differently. Yet, here we are in presence
of evidence that would not have been obtained without the violation so we must turn to the other two criteria.

Seriousness of the violation: the numerous relevant factors at this stage in a criminal proceeding may also apply here in civil case: the right to privacy was
violated; the electronic surveillance is the greatest leveler of human privacy ever known; the use of evidence obtained by violating the privacy of a person
in their home brings the administration of justice into just as much disrepute as the administration of criminal justice; the violation of fundamental rights
was voluntary and fragrant; the surveillance amounted to a witch hunt, a fishing expedition ordered by the city; Guilbaut and the mayor were acting in
bad faith; it has not been demonstrated there was urgency or a need to safeguard evidence; there were other alternative investigating modes.
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Effect of excluding the evidence: “from the point of view of a reasonable, objective person who is well informed of all the circumstances of this matter,
the administration of justice would be more brought into disrepute by admitting evidence of this covert surveillance before a court, than by the
inconvenience caused in the process of seeking truth”.
GENDREAU AND FISH JJ. A. (concurring)
General principles
 Even if seeking truth is the aim of both criminal and civil trials, the fundamental differences in their conduct facilitates the admissibility in civil trials. The
right to a fair trial in criminal law, does not apply to the civil trials, where the rule is truly reversed.
 The judge of a civil trial is faced with an exercise of proportionality between two values: the respect of fundamental rights on the one hand, and seeking out
the truth on the other hand.
 Thus, he must respond to the following question: taking into account the purpose, the nature, the motivation and lawful interest of the author of the breach,
and considering the methods of acquiring the evidence, was the breach of fundamental rights so serious that it would be unacceptable for the court to authorize
the party having obtained the evidence to use it in order to advance his private interests.
 This is a case by case determination. But in the final analysis, if the judge considers the evidence obtained in a breach of fundamental rights constitutes an
abuse of legal system because it lacks a sufficient and well grounded legal justification, he should disallow the evidence.
Application to the case at hand
 There has been a violation of Houle’s right to privacy.
 The city usurped the civil justice system. All the elements of the case favour the exclusion of the evidence. The equilibrium has been broken and a reasonably
informed person would consider that our system of civil justice should not be used for purposes as those present in this case.
Comments:
Houle
 Mostly interested in the 2nd part of the test: we seem to have made a policy choice of sacrificing truth.
 We can read Houle as standing for the proposition that if the breach was serious, then we are not accepting the evidence.
 The end result is that you get a decision by a court where the factual conclusions are wrong. The evidence was determinative. It shows the extent to which
a rule can sacrifice truth and give rise to distortions. Why do we make a decision to sacrifice truth? It seems that we want to protect the relationship
between civil rights and adjudication.
 It that appropriate? Even if we are pro-civil rights, the question is whether it’s necessary to sacrifice truth. There are other ways to guarantee civil rights,
and why are those remedies not sufficient so that we feel the need to go over them and do more?
 Let’s assume that it is a valid objective.
 Let’s change the facts  the city had nothing to do with the violation of Mme Houle’s rights.
o There would be no evidence linking the recording to the city.
o In such a situation, could we really say that the evidence could be excluded? Bachand thinks the courts’ decision leaves that door open. If this
is the case, it’s troubling because you end up penalizing someone that had nothing to do with the violation.
 2858 asks to focus on the process, and not on the breach. Maybe a better test would be to require a participation of the party in the impugned human rights
violation. This way, you would ask the judge to consider the legitimacy or the appropriateness of that party’s behaviour in the proceedings. This would be
a more balances way of doing this. The principle of loyauté may be a better way of achieving this balance.
Conclusion on Houle: Basically, Bachand says the court goes to far: 1) first by focusing on the breach, and 2) on a level on principle, we seem to be unduly
sacrificing the interest of litigants in the interests of truth.
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Does this approach make sense? Is that what the National Assembly intended?
 Bachand: we should get away from the breach and look for something else in the second step of the analysis. Wording in 2858 looks at what would
reflect poorly on the administration of justice in society’s eyes and so we need to look at the system more broadly.
 Bachand likes what Couture says in the case:
o “…an appropriate criterion of fairness in civil matters would resemble the concept of ‘loyalty’, which would prevent a party from enjoying the
benefits of infringement….”
o This reflects the civil justice system principles which, for e.g., requires disclosure etc. – acting in good faith
o Couture: “This would enter into play notwithstanding the good or bad faith of the party who wishes to introduce the evidence being challenged.
The mere intention to use evidence obtained in violation of rights and freedoms blah blah…”
 Bachand doesn’t like this – taking it too far. Isn’t she erasing the second part of the test, making the first part determinative?
In search of a better standard for assessing what would bring admin of justice into disrepute:
 What if the party seeking to adduce evidence had nothing to do with breach of fundamental rights?
o The city didn’t do anything wrong in Houle. It’s crystal clear that the city had a substantive right to fire Houle. How the hell can the law of
evidence tell the city that they can’t introduce this evidence.
o Houle has other remedies to protect her fundamental rights – e.g. through the human rights system
o Me: Sounds like Bachand is looking at the outcome we want and reasoning backward to decide whether or not the administration of justice
would be brought into disrepute.
 What if victim of breach not a party to the action?
The alternative structure Bachand’s likes  National assembly is telling us to focus on something else!
 Organizing principle/underlying value = procedural loyalty
 2nd part of the test can only be met if party seeking to rely on evidence participated in the violation (irrespective of whether victim is opposing party or
third party)
 Discretion to admit nevertheless where:
o Importance of interests at stake (nature of right invoked by party seeking to rely on evidence) AND
o Impact of evidence on conclusions to be drawn re material fact at issue
See also Class 24 PPT!
Morissette, Y.-M., “L’influence du droit français sur le droit de la preuve au Québec”
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Discusses the reception of French law in Lower Canada.
Similarities between French and Quebec law of evidence include: burden of proof on the plaintiff on a balance of probabilities; primacy given to notarial acts
(and generally, la “force probante de l’écrit”); the inadmissibility of testimonial evidence to prove the existence of a juridical act (with certain exceptions).
But there are significant differences between the French law of evidence and Quebec’s law of evidence (because Quebec is a mixed jurisdiction). Differences
became evident for example with some of the rules adopted in the new CCQ, e.g. rules re: hearsay, illegally-obtained evidence. But the differences go as far
back as the 18th century…
Examples of differences which illustrate the impact of the CML in Quebec: the codification of the best evidence rule (1204 CCLC), modified parol evidence
rule (1234 CCLC); prohibition on hearsay with certain exceptions (not in the CCLC but in the jurisprudence, e.g. Morrow v. Royal Victoria Hospital).
Further examples: in Quebec, evidence is a distinct and important area of the law – not so in France; also, in Quebec, the practice of law is very much
inspired by mixed traditions (e.g. adversarial system, passive judges)
Finally, although neither French nor QC law place as much emphasis on witness testimony as the CML, QC law allows parties to the litigation to testify –
this is not allowed in France.
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- Keep in mind the perspective Bachand wants us to take: here, our role is limited to an advocate that helps a client.
2003 fact pattern
question
 Law suit in Quebec: your client vs. a doctror
 Seeking damages for negligence
 Decision rendered ago by the QC superior court 10 years ago in which Boucher was ordered to pay damages.
 Admissibility of this evidence
Answer:
 What are the potential problems we see here?
o This is a document- so think best evidence rule
o Hearsay problem? The out of court declaration we are trying to rely on here is the court’s decision, i.e. a statement by the judge that Boucher botched another
surgery. What is the purpose? To prove that he botches procedure! this raises a hearsay problem
o Might there be a problem of similar facts? this might raise relevance problems. Our broader purpose is try to establish that he was negligent here. It can only be
adduced in an attempt to prove that he committed an attempt. So, the very first question here is whether this evidence relates to a relevant fact. There is a
potential relevance problem here.
o NOT res judicata! It looks like there could be one, in the sense that you have two different law suits, but these are two different procedures, involving different
patients, and the object of the claims is not the same.
Relevance analysis: The test is low.
 The test is low and the issue is whether it could reasonably have a positive probative value
 You might say that if he did it once, me might do it twice. The factors to be taken into consideration are:
o It’s more than 10 years ago: this is quite a while
o We are not told whether the surgical procedure was similar or not.
o How long has this guy been practicing medicine for?
o We have no information as to the rest of the this doctor’s file, and if he has been successfully sued by other clients.
o Fell free to indicate some additional factors you would like to take into consideration even if they are not taken into consideration
o All those factors need to be decided on the basis of common sense.
o 2857 in civil law
The rest of the relevance analysis would be to decide whether the prejudicial effects of the relevance would take over the benefits it might bring.
 Since there is no jury, the costs are minimal.
 This part of the relevance analysis is not that relevant
Best evidence problem:
 This rule says that you need to bring the original document
 The most compelling answer here would be to say that there is a potential problem here, and you could discuss it for pages.
 Yet, you must take a practical approach to it and tell the client you will have plenty of time to get the other party to admit it, or to get an authentificated copy.
The battle here will NOT be on the best evidence rule.
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Hearsay problem
 If you look at things from a common law perspective, we know with Starr that the traditional exception still have a persuasive authority and there is an
exception for public documents.
 Ali itself is authority- they did not deal with the hearsay decision in it, but it is authority that you can use a previous decision. It may not be proof, but it does
not matter because here we are looking at the admissibility and not the probative value.
 What about judicial notice?
o It was creative, but not very strong: it is valid when what you are trying to do is to establish the content of a legal rule, but here you are using it to proof
circumstantial facts.
Note that this is the only transystemic point in the fact pattern.
QU2., 2004
Question
 Represent Tom who is involved in a lawsuit with Dave in front of the superior act
 He is seeking the annulment of a K (juridical act) he claims that he signed it because of fraud on the part of Dave
 Tom is trying to adduce evidence on Dave’s behaviour in previous ks they previously signed 8 years ago
 Tom sought to have this K for lack of valid consent, but this action was dismissed by a court, 2 years ago
 Transystemic question
Answer
What are the potential admissibility problems here?
 Res judicata- you are trying to prove facts that have been in issue already in another previous proceeding. He is trying to re-litigate the fact that the initial K
was entered into by fraud. You are indeed trying to re-litigate something here. Causes of action are different because different objects are involved- you have
different ks. But does this end the analysis in QC law? There is always a question as to the issue of abuse of process in QC law. You could always make an
argument that the discretionary power to implement the abuse of process applies here according to inherent powers.
 Potential relevance problem- this is a circumstantial fact, and we would encounter the same problems that we encountered in the Boucher case.
The rest of the problem was going over the res judicata principle in Ontario where there is issue
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