Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In today’s lecture I will explain the basic principles of evidence that will help you in identifying the appropriate evidence that you would need for your case in a civil court in Ontario.

Please note, that this lecture is not legal advice, so if you have any specific questions regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

In today’s lecture, I will explain what are the sources of evidence law that the judges and the courts consider in making decisions about evidentiary matters. I will explain to you the basic principles of evidence law that is applied by judges. I’ll try to explain this further, by way of an example.  Then, finally, I will talk about the discretionary powers of a court or a judge with respect to the evidentiary matters. There are 2 sources of law with respect to evidence. Number one is statutes and number 2 is common law, which are the decisions of judges with respect to evidentiary matters.  It contains many, many principles of evidence.  When judges are deciding on evidentiary issues, they make those decisions on the basis of a combination of common law principles and statutes.

Regarding statutes, we have the federal statute, Canada Evidence Act which deals with all matters that are in federal jurisdiction. With respect to provinces, each province has its own provincial legislation regarding evidence and in Ontario it is Evidence Act.  Other provinces and territories will have similar legislation.  The third item with respect to legislation is the Rules of Civil Procedure. They also contain various Rules with respect to how different pieces of evidence are entertained by judges and in courts.

Let’s go to basic principles.  There are 3 basic principles with respect to evidence and the courts will consider those principles in deciding whether the evidence is relevant and its need to be included in that court action or in that legal process.

The 1st principle is relevancy. The evidence needs to be relevant. What does that mean? The specific piece of evidence that you’re presenting, it should increase or decrease the probability of the truth of a fact. The evidence is whatever you have stated, whatever facts you have alleged in your pleadings, that specific evidence that you are providing, that you’re submitting, should increase or decrease the probability that, that fact is in fact true. The key thing you want to remember about relevance is that the threshold for a piece of evidence to be relevant is very low. As long as that particular piece of evidence can somehow add value with respect to the truth of that fact—either it is true or untrue—then that piece of evidence would be considered relevant.  I will explain this by way of an example, so hopefully it will be clearer.

The 2nd principle is called materiality. Materiality is a piece of evidence that when you are trying to prove a specific fact, then that specific piece of evidence must have legal significance.  In this situation there is a specific legal test that is connected to that piece of evidence or evidence is connected to that specific legal test, which is why that particular piece of evidence becomes material. Broadly speaking, you will have a lot of pieces of evidence that will be relevant and from those relevant pieces, there will be evidence—pieces of evidence that will be material because they are corresponding to a specific legal issue that you have raised or you are defending and that’s what makes those pieces of evidence material.  Finally, the evidence that you’re submitting ought to be admissible (third principle) and what this means is that there are no exclusionary rules that apply by virtue of the application of those rules, those pieces of evidence are not admissible. In some cases evidence that you have presented may be relevant and material but because of the application of exclusionary rules and there are many exclusionary rules—(today we’re not discussing that, but in another lecture we’ll talk about it), relevant and material evidence is no longer admissible in that proceeding.

Examples of evidence that could be excluded is hearsay.  Hearsay evidence could be relevant and material—quite relevant, quite material—but because the evidence is hearsay it ought to be excluded.  The judge will exclude that.  Then there are exclusions to hearsay evidence (further exclusions) which will allow hearsay evidence to be admitted.  We’re not discussing that today. Character evidence is another example where character evidence may not be admitted. Similarly, there may be circumstances where opinion evidence is not admitted.  There are a number of categories of exclusionary rules that may apply. But what you want to remember is that for the judge to accept any piece of evidence, it has to be relevant and material and has to be admissible.

Let’s go to an example and see if we can explain the concept of relevance and materiality a bit better. I take an example of a case, where you had retained a contractor to renovate your kitchen.  In that process the contractor did not do the job properly.  You incurred damages as a result of inferior work or the contractor’s work that was not performed in accordance with your agreement or instructions.  You have incurred damages and you have sued the contractor in court for your damages. Within that context I am giving an example of one specific issue which was with respect to the countertops in the kitchen. You claim in your statement of claim that you had an agreement with the contractor that he will install granite countertops.  The countertops that he has installed are actually quartz—which was not something that you had agreed upon.  You had to have the quartz countertops removed and then granite countertops installed. Because of that you have incurred damages for which you are claiming before the court.

Normally if you have one contract, one piece of document that specifies what the agreement is, what is the scope of work, what is the cost, what material will be used, then that piece of evidence will be relevant and material.  You will produce that in order to show what was agreed upon and what the nature of the contract was.  Let’s assume, in this case, that there was no written contract—one piece of document.  The way you had agreed to all of the terms with your contractor was by e-mails and text messages—which is not unusual.  All of the evidence that you are going to present with respect to proving your case is going to be from the e-mails and text messages that you corresponded with your contractor.

In those e-mails let’s assume that you had e-mails that were discussing countertops. Imagine these are a bunch of e-mails where you state my budget is $5000.00 for countertops.  I would like to have granite countertops. The contractor, for example says, “well, $5000.00 is a low budget. I think you should consider some other material, maybe quartz”.  All of these e-mails will be relevant and material.  Where as if there are other e-mails that are discussing kitchen cabinets that may or may not be relevant depending upon the circumstances of your case.  But they’re not material.

What does this mean? Why are these ones material and these ones not material to this particular case? As I said for materiality you need to understand the legal significance of that specific piece of evidence that you are providing in this case.  Because it is a breach of contract case, there are 3 (I would say there are 3) basic things that you need to legally prove to the court. Number one that there was an agreement—there was a contract which specified that the material for the countertops will be granite. There’s a contractual agreement for the installation of granite countertops. That’s item number one. Second item that you’ll have to prove to the court is that the contractor breached that agreement. You will provide pieces of evidence proving to the court that what was installed was not granite, it was quartz. The third thing that you will have to prove to the court is that because of that breach you incurred damages.  In this case, you will be able to show, for example, invoices for removal of quartz and for the reinstallation or purchase of granite countertops and installation of that. Those are the three categories (3 things) that you have to prove in order for you legally to get your damages that you’re claiming.

The 1st item that you have to prove is that there was indeed a contractual agreement between you and the contractor for the installation of granite countertops.  The emails that are talking about countertops are relevant and therefore material. But the kitchen cabinet emails are not material because they are not going to prove the agreement of granite countertops. Now, if you have issues about kitchen cabinet as well with the contractor then, of course, these e-mails will be relevant and material—depending upon what kind of issues you have.  The point, that you want to carry from this discussion (from this example) is that one of the important things that you have to do in selecting evidence is to understand what is the legal task that you have to meet either to prove your case or to defend your case and then what are the pieces of evidence that correspond with that legal test and therefore those pieces of evidence will become material.

Let’s go to our discussion about the discretionary power of the court. What you want to remember from this discussion is that the courts have this broad discretionary power with respect to evidence.  In certain circumstances where the evidence may be relevant, may be material, may be admissible and there are no exclusionary rules that may apply, even then the court, the judge may decide that that particular piece of evidence ought not to be admitted with respect to this particular trial that you’re dealing with. How do judges decide that?  They apply this test where they assess the probative value of the piece of evidence that you have provided, versus the prejudicial effect of that evidence.

Let’s do this by way of an example. The example I have chosen is a bit extreme but it illustrates the point probably a bit better. Let’s take an example of a murder case.  Where the question is—does the Crown need to provide the photos of the deceased or the person who was murdered, as evidence to show that the person has indeed died?  The court will consider the probative value of those pieces of photos to confirm the death of that person.  There may be other ways to show that the person has died. There could be a death certificate.  In that situation the court will consider what is the benefit of having the deceased person’s photos, as part of evidence to prove that the person has died.  On the other hand the prejudicial effect may be that, seeing the photos of that person may have some sort of psychological impact on the minds of the jury.  That may have an impact on how that trial is decided or the process of trial is taken by the jury. In that case, the court may decide that there isn’t much probative value from those photos to be included as evidence even though they’re admissible. A death certificate from a hospital or a doctor is sufficient.  The court may say, we’re not going to admit the photos. But for example, if those photos are being presented to show, to prove the method of killing of the person, then the probative value may be much higher and the prejudicial effect maybe much lower.  In that case the court may allow the admissibility of those pieces of evidence.

In all of this what you want to understand, the 2 things you want to carry is you want to make sure that your evidence is material and it’s not otherwise inadmissible.  That means that you need to understand the legal significance of the evidence that you’re using.  Generally speaking what you want to remember from all of this is that judges generally like to have all of the evidence admitted as much as possible.  If it’s clearly hearsay evidence or there’s a prejudice to the other side then of course the judge will not allow that evidence but otherwise judges will like to have all pieces of evidence because then the judge can assign different weight to different pieces of evidence—if they believe that a particular piece of evidence seems to be weak, they may assign a lesser value to that piece of evidence / may rely lesser on that and there may be other evidence.  They like to have that option, so that within the context of the entire case, they can figure out which pieces of evidence are more appropriate for them to make their decision on.

Hopefully this lecture gives you a broader understanding of the fundamentals of evidence law.  As I indicated earlier, evidence law is quite complicated. It’s intricate. But if you have this basic understanding, at least you will be able to figure out what kind of evidence is relevant and material to your case and you will be able to make that selection better.

Thank you for watching.