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Hearsay evidence is defined as an out of court statement being used to prove the truth of its content. If the issue is the colour of a streetlight, an example of hearsay evidence would be using the earlier statement of a witness whose whereabouts were now unknown. The absence of the observer means there can be no cross-examination. Such evidence is considered unreliable and is presumptively inadmissible.

There are however exceptions to the rule. These exceptions developed over time for use in circumstances where the evidence, although hearsay, presented a minimal risk of any unreliability and in fact, its exclusion would then impede, not advance, the fact-finding process. These exceptions are well known and are not the focus of this post.

A Principled General Exception

What about the admission of hearsay that does not fit into any defined exception? The party seeking to introduce the evidence would have to establish on a voir dire that the evidence was reliable and necessary. A voir dire is a hearing within a trial in the absence of the jury, if there is a jury present. This basis for admitting (or excluding) hearsay evidence was established in the 2006 Supreme Court of Canada decision, R. v. Khelawan.

The reliability requirement is aimed at identifying those cases where the concerns arising from the inability to test the evidence in question are sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule. That is most often shown by establishing that:

  1. That there is little or no concern about the reliability of the statement given the circumstances that led to it being made;
  2. The statement’s truth and accuracy can be tested by means other than cross-examination.

These two approaches are not mutually exclusive but rather serve to highlight the factors that need to be considered by the trial judge in making the determination to admit the evidence or not.

Comments from a Deceased Witness Admitted in Civil Matter

Although the issue may appear to be one most applicable in criminal law cases, the exception is equally applicable in any civil litigation proceeding. In a recent medical malpractice action before the Ontario Superior Court of Justice (ONSC), a voir dire was held to decide whether the oral statements of a deceased person could be admitted for the truth of their content and not just the fact that they were made to the defendant doctor. The statements were alleged to have been made by the doctor’s former receptionist. The statements related to the receptionist’s attempts to schedule a follow-up with a patient, as well as procedures the patient had at the doctor’s office. They would, if admitted and believed, go a long way to bolster the doctor’s defence.

The statements were ultimately admitted to prove the truth of their content but subject to a future determination of weight and reliability when considering all of the evidence at the end of the case. They were admitted in part because they were corroborated by an existing note, and this led to the statement being reliable without the benefit of cross-examination. Further, the receptionist had no reason to lie about the call or its nature.

Civil litigants should know that not all evidence that could technically be classified as hearsay will be excluded automatically. If the party wishing to rely on the evidence can demonstrate that there is little reason to question the reliability of the evidence, and especially in cases where the statement(s) are corroborated by external factors, such as notes other verifiable means, it is very possible such statements will at least be admitted for consideration within the larger context.

If you are involved in commercial litigation, the exceptionally skilled corporate litigation lawyers at Milosevic Fiske LLP in Toronto can help. Over the years, our team of lawyers has successfully fought for our clients’ rights and our impressive track record speaks for itself. Please contact us by calling 416-916-1387 or connect online for a consultation.