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Is evidence law worth it in civil cases? | Michael Lesage

Thursday, December 17, 2020 @ 2:01 PM | By Michael Lesage

Michael Lesage %>
Michael Lesage
While the common law has developed over the last millennia, the law of evidence is a much more recent addition, with roots going back only several hundred years. In theory, evidence law serves to limit what a trier of fact may consider. In practice, it serves more as a trap for the unwary, requiring parties to robotically recite certain “magic words,” lest otherwise admissible evidence be excluded. As such, its continued utility in judge alone proceedings is questionable at best.

The absurdity of evidence law in practice is on full display in Ontario courtrooms, where proceedings are intermittently interrupted by interjections of “relevance” or “hearsay.” Relevance is of course a shorthand way of saying “what does this have to do with the matter, get to the point?” The meaning of hearsay is much less precise, shifting depending upon whether it refers to testimony or documents, and subject in some cases, at least to degree, to the whims of the decision maker.

To explore this further, let us consider a hypothetical breach of contract case, involving the sale of a lawnmower, from Sandy Seller to Paul Purchaser. Let us further assume that Paul alleges the lawnmower doesn’t work, and wants to testify that Diane, his daughter, told him she tried it and it wouldn’t start. He also wants to introduce the bill of sale and a photograph of the lawnmower, which shows the manufacturer’s logo with its “Starts every time” trademark. Let’s further assume it was an expensive lawnmower, meaning that Paul and Sandy are in Superior Court and that the rules of evidence, in all of their formal splendor and pageantry, apply.

Paul begins his case by stating that after he bought the lawnmower, he asked Diane to use it to mow the lawn. He saw her go to the garage, and when she came back inside, she reported that the lawnmower wasn’t working. This was greeted with a hearsay objection, which was sustained. However, Paul has not stated he has any firsthand knowledge that the lawnmower was in fact broken, and as plaintiff, he bears the burden of proving his claim. Even assuming his testimony about what Diane said had been considered, are we really to believe that a Superior Court judge will conclude that since something was said by someone, he/she is bound to follow it? Do our judges really worry that they themselves are so pliant? More to the point, what value did the law of evidence add to the proceedings?

Things get more interesting with the next two examples. On presenting the bill of sale, Paul is greeted with another hearsay objection. Candidly, this is a one-size-fits-all objection, that can be made reflexively to any document or other exhibit a party attempts to enter into evidence. In many cases, it indicates little other than that the speaker remains conscious. Prior to trial, Paul had attempted to ensure this was admissible by serving a request to admit, (which we assume was admitted) but because the folks on the Civil Rules Committee have a perverse sense of humour, such formal admission only proves the document is authentic; i.e. a true copy of what it purports to be.

As such, Paul must next convince the court that he is either introducing the document for a non-hearsay purpose, or that it falls within a recognized hearsay exception. Paul, being somewhat prepared for trial, consults his version of Sopinka’s The Law of Evidence (which he pulls from his front pocket), and states that the bill of sale is non-hearsay as it contains operative legal language, and/or is a business record, and hence falls within a recognized hearsay exception. This time, the objection is overruled. Once more, what value has evidence law added to the proceeding?

Finally, Paul attempts to introduce the photograph into evidence, but this time, is greeted with a double hearsay objection. Initially, he has not authenticated the photograph (we’ll assume he did not formally request the other side admit it), and even if he had, he is seeking to admit it solely to show the “Starts every time” language, which again, meets the textbook definition of hearsay.

Once more, Paul must consult his handy evidence treatise (as no Canadian scholar has yet summarized the rules of evidence, as was done long ago by the U.S. Federal Rules of Evidence). First, he must locate the magic words necessary to prove the photo, generally that it fairly and accurately depicts the lawnmower on a certain date. Having done that, he is again faced with convincing the court that words printed on the lawnmower that he bought, are in fact admissible, in a case where he alleges that very same lawnmower was not working.

Initially, Paul tries telling the judge that the trademark forms operative legal language, but the judge disagrees. Next, after wracking his brain and further scouring Sopinka, Paul confidently blurts out what he hopes to be the proper magic words, chiefly that the trademark constitutes a guarantee, warranty, representation, admission by a party opponent and/or statement against interest. Somewhat unsure of whether that’s correct (aren’t we all) but taking mental stock of how self-assured Paul seemed of himself, the judge mutters something about it “going to weight,” and the trial continues. Evidence law has once more added complexity, but little of value. The focus of the case remains upon whether Paul received what he bargained for.

In practice of course, things play out differently. Experienced counsel cannot risk fumbling around like Paul, and in the event documents are not to be admitted on consent, must spend time categorizing each and every document and determining the method, means and any specific magic words required to admit same into evidence.

Typically, this involves sitting down with an evidence treatise. Additionally, for certain types of documents, supporting witnesses must be called, despite the fact that no one seriously disputes the authenticity of the document or the fact that it will be ruled admissible. This of course adds substantially to the time necessary to prepare for trial, while likewise adding unnecessary time at trial itself. As such, it is questionable how often the law of evidence passes its own cost/benefit test. While not the sole factor, this doubtless contributes to the access to justice crisis, and offers partial explanation for why Ontario’s trial times are currently inferior to many developing nations. To be in such company, we are clearly doing something very wrong.

As Ontario rebuilds it badly broken justice system, perhaps it’s time to follow the lead of the small claims court and many tribunals, and make evidence fully admissible by default, unless there is a clear and compelling reason to exclude it. In that way, the onus would be put on the part of the party seeking to exclude evidence, and the perverse incentive to object for the sake of objecting would be reduced (after all, isn’t most evidence eventually admitted anyway).

Alternately, perhaps the COVID-19-aggravated court backlog can best be cleared by continuing to do things exactly the way they have always been done here, but this time hoping (a lot) for different results. I’m pretty sure Einstein had an unflattering definition for that sort of behaviour.
Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. He also sits as a bencher at the Law Society of Ontario. You can e-mail him at
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