How many of you were taught that hearsay evidence is generally not allowed in court, exclusive of the general hearsay exceptions? Put your hands up… way up!
In the last 40 years or so, hearsay evidence has come a long way. Generally speaking, most of us were taught that hearsay evidence was not allowed unless it fell under one of the principled exceptions.
Real changes to the hearsay rules began in 1970 with the Supreme Court of Canada decision, Ares v. Venner, in which the court admitted hospital records that did not fit within any of the existing exceptions. Since then, there have been many amendments to the law and many precedents have been set that have paved the way for hearsay rules as we know them today.
Formerly, s. 80(1) of the Courts of Justice Act provided that the court:
“…may admit as evidence at a hearing…any oral testimony [and] any document or other thing, relevant to the subject-matter of the proceeding…”
Today, s. 27(1) of the Courts of Justice Act states:
“…the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding…”
In Central Burner Service Inc. v. Texaco Canada (1989), 36 O.A.C. 239, Justice Steele concluded that s. 80(1) of the Courts of Justice Act allows relevant hearsay evidence to be admitted and relied upon in a Small Claims Court trial.
The court found: “In my opinion, s. 80 allows hearsay evidence of all oral testimony and all documents or other things… The object of s. 80 is to avoid technical procedures and the additional cost of calling extra witnesses in cases involving small claims.”
Subsequently, in 1998, pursuant to Sathaseevan v. Suvara Travel Canada Inc.,  O.J. No. 1055, Justice Lane stated that:
“The Small Claims Court…may decide cases entirely on the basis of hearsay evidence…”
What does all this mean? It means that there is a more relaxed approach to evidence in the Small Claims Court, as it caters to self-represented and unsophisticated litigants.
The Court recognizes that unsophisticated parties need to be able to present their evidence without having to master the complex rules of evidence. At the same time, the judge must decide how much weight and or credibility to give the hearsay evidence.
Wikibook on Criminal Evidence
A recent case that cites references above:
Millette v Ronayne, 2013 CanLII 57487 (ON SCSM)
Daniel Foster is a paralegal and Director of Legal Studies at Metro College of Technology.