Hearsay Evidence at a Tribunal

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1826
Page Categories:	[Evidence Law]
Citation:	Hearsay Evidence at a Tribunal, CLNP 1826, <58>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2021/12/18

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R. v. Blackman, 2006 CanLII 42356 (ON CA)

[42] Hearsay evidence in the form of an out-of-court statement is presumptively inadmissible. As observed by the Supreme Court of Canada in R. v. Khelawon, [2006] S.C.J. No. 57, 2006 SCC 57, released on December 14, 2006, the central concern underlying this exclusionary rule is the difficulty of testing the reliability of the declarant's assertion. The exclusionary rule recognizes the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. As Charron J., writing for the Supreme Court, explained at para. 35 of Khelawon: "The fear is that untested hearsay evidence may be afforded more weight than it deserves." See also paras. 58, 59 and 61 of Khelawon.

[43] It is now settled law, however, that hearsay evidence in the nature of an out-of-court statement is admissible on a principled basis as an exception to this exclusionary hearsay rule where its admission can be justified on the twin criteria of necessity and reliability: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 59 C.C.C. (3d) 92; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 75 C.C.C. (3d) 257; R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449; Khelawon, supra. "Necessity" was not in issue in this case because Ellison was dead. The issue here was whether the criterion of "reliability" was satisfied, having regard to the circumstances under which the Statements were made.

[44] As the Supreme Court of Canada has emphasized repeatedly, there is an important distinction between threshold and ultimate reliability. Only the former is relevant to admissibility.

[45] Historically, the Supreme Court also stressed the distinction between factors relevant to threshold reliability and those that concern ultimate reliability alone. Thus, in Starr at paras. 215-17, the Supreme Court indicated that, at the threshold reliability stage, the judicial inquiry is concerned only with the circumstances surrounding the making of the statement at issue and [page304] whether these afford "sufficient elements of reliability" that the statement should be considered by the trier of fact. See also R. v. Humaid, 2006 CanLII 12287 (ON CA), [2006] O.J. No. 1507, 208 C.C.C. (3d) 43 (C.A.), leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 232; R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 111 C.C.C. (3d) 129.

[46] In Khelawon, however, this principle was abrogated. At para. 93, Charron J. held that the factors to be considered on the admissibility inquiry "should not be categorized in terms of threshold and ultimate reliability". Instead, "the court should adopt a more functional approach . . . and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers". Under this approach, the trial judge plays a limited, albeit critical, role in determining admissibility. Justice Charron cautioned at para. 93, "[I]t is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre- determined on the admissibility voir dire."

[47] Thus, Khelawon confirms that while the factors relevant to the admissibility of a hearsay statement should not be characterized according to the divide between ultimate and threshold reliability, the distinction between these measures of reliability remains of vital importance on the admissibility inquiry. Only threshold reliability is to be inquired into on the admissibility voir dire. In addition, the relevance of any particular factor to the admissibility inquiry depends on the particular dangers "arising from the hearsay nature of the statement and the available means, if any, of overcoming them": see Khelawon, at paras. 50 and 55.

[48] The legal test for the assessment of threshold reliability mandated by Starr and related cases places an onus on the party seeking the admission of a hearsay statement to show that the circumstances surrounding the making of the statement are sufficiently supportive of its reliability to permit its admission, despite the absence of an opportunity to cross-examine the declarant: see Smith, supra, at p. 932 S.C.R., p. 270 C.C.C.; Humaid, supra, at para. 50; R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18, [2001] O.J. No. 3603, 157 C.C.C. (3d) 129 (C.A.), at para. 64. Under this test, there is no evidential onus on the party resisting the admission of a hearsay statement to establish that the statement was made in unreliable circumstances.

F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41

[46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.

Re B and Catholic Children's Aid Society of Metropolitan Toronto, 1987 CanLII 4187 (ON SC)

Counsel for the appellant appeals upon three grounds:

(1) The hearing officer found against the appellant on the hearsay evidence of June De Maat (some of it hearsay upon hearsay) who repeated the complaints and later denials made to her by Haley B; and that in so doing there was a denial of natural justice. This hearsay evidence was admissible because s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, is made applicable to the hearing by s. 52(14) of the Act. Counsel for the appellant submitted that this case would come within the dictum of Galligan J. in Lischka v. Criminal Injuries Compensation Board (1982), 1982 CanLII 1840 (ON SC), 37 O.R. (2d) 134, particularly at p. 135, as follows:

It is my opinion that the evidence of the police officer, albeit from a technical point of view hearsay and opinion, was admissible because of the provisions of s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484. I am not prepared to say that there could be no case in which admission of hearsay and opinion evidence could not amount to a denial of natural justice even though its admission is authorized by s. 15. I do not think that this is one of those cases.

(2) That the hearing officer erred in failing to give effect to s. 11(d) of the Canadian Charter of Rights and Freedoms.

(3) That the hearing officer erred in failing to find that the alleged misconduct was not a reportable abuse pursuant to s. 52(2) of the Child Welfare Act.

...

First ground of appeal (the hearsay submission)

In argument before us counsel for the respondent quite candidly admitted that the alleged victim was not called to testify because she had changed her "story" and would not say that she had been abused or molested by the appellant. The alleged victim was aged 12 at the time of the alleged abuse and aged 14 at the time of the hearing. There was no indication of any kind that she could not have testified at the hearing or that there were any impediments to having her sworn as a witness. As I understand the submission of counsel for the respondent, he conceded that he could not have succeeded had she been called as a witness because she would deny any molestation by the appellant. Had she been called to testify and made that denial, leave might well have been given to counsel for the respondent to cross-examine her as to her alleged previous inconsistent statements. (There is no indication that she made any statements in writing.) If the alleged victim then admitted that she made the previous inconsistent statements but did not adopt them as being true, those statements would be of limited evidential value, that is, they would only go to her credibility and not to the truth of the facts referred to in the statements: Sopinka and Lederman, Evidence in Civil Cases, pp. 505-8. Therefore, had she been called as a witness, it seems to me that it would be almost impossible for the hearing officer to make a finding against the appellant upon hearsay evidence in the face of a denial of sexual abuse by the alleged victim and the appellant. Because of s. 15(1) of the Statutory Powers Procedure Act the hearing officer was able to rely upon hearsay evidence. In so doing he stated in part: "I believe the child's first account of what happened." He did not give any reasons why he rejected the denial evidence of the appellant J.B.

It is our view that in the circumstances mentioned, where the appellant was denied the right to cross-examine the alleged victim, the admission of the hearsay evidence did amount to a denial of natural justice; the hearing in this case fell below the minimum requirement of fairness. The appellant was not convicted of sexual molestation but nevertheless it is a grievous stigma to have one's name in the Child Abuse Register where it may remain for 25 years.

For the above reasons the appeal is allowed.

Re Girvin et al. and Consumers' Gas Co., 1973 CanLII 706 (ON SC)

The board of arbitration had before it certain evidence which can be briefly summarized as follows:

R.B. Hastings, an insurance investigator, testified that he had interviewed the grievor as to the condition of the basement area, who advised him that the condition as of May 28, 1971, was not the same as it was at the time of the escape of carbon monoxide gas. Mr. Hastings made inquiries in the neighbourhood and spoke on the telephone to Mr. Alexander concerning the date of the construction in the basement. He testified that he was advised by Mr. Alexander that the work was done in the winter. Mr. Hastings further testified as to conversations between Mr. Outerbridge, a solicitor for Consumers' Gas Company, and the grievor, when the grievor advised that the situation respecting partitions and doors had changed substantially since his service call on May 28, 1971. Mr. Hastings further testified that he communicated with a Mr. Syd Marchiori and learned that construction work in the basement had been done by one Joe Pavarin. He further testified that he spoke to Mr. Pavarin, who recalled doing the work in the Alexander residence, but could not remember the date of the installation of the doors to the pool heater cupboard. Mr. Hastings further testified as to a search of the records of Card Building Supplies Limited which search revealed an order dated January 28, 1971, and an invoice dated February 12, 1971, showing the name Alexander. A Mr. P.N. Ross, an employee of Consumers' Gas Company, testified, in part, that he had spoken to Mr. Alexander who advised that the construction work in the basement had been completed by the latter part of the spring of 1971. Mr. Ross further testified that he had discussed the matter with the grievor and the latter indicated that he could not clearly recall the state of the premises at the time of turning on the pool heater in late May. The grievor had indicated that while he had some recollection of the equipment and could remember doors on the pool equipment cupboard he could not remember whether the doors were fixed or sliding. The grievor himself testified to the effect that he was unable to say whether or not there were doors on the pool heater alcove or on the doorway leading to the vestibule area to the furnace room at the time of his service call.

The board made its finding of fact as follows:

At this point, we are in a position to deal with the first question formulated for consideration, namely, did the occurrence on August 16, 1971, result from a hazardous condition in the basement area of the Alexander home which existed on the date of the grievor's visit on May 28, 1971. We are of the view that this question must be answered in the affirmative. Although the precise date at which the new construction had been completed was not established all the evidence, save the testimony of the grievor, pointed to its completion well before the pool light-up on May 28, 1971, by the grievor.

...

This subsection was considered by the Court of Appeal for Ontario in R. v. Barber et al., Ex p. Warehousemen & Miscellaneous Drivers' Union Local 419, 1968 CanLII 446 (ON CA), [1968] 2 O.R. 245, 68 D.L.R. (2d) 682. Mr. Justice Jessup, for the Court, at p. 252 O.R., p. 689 D.L.R., after quoting the subsection above referred to, said:

By that clause the Legislature recognized that arbitrations will frequently be presented before arbitration boards by lay persons. Accordingly, it relaxed the strict rules as to the admissibility of evidence and in particular allowed hearsay evidence to be adduced without objection. However, that provision does not relieve a board from acting only on evidence having cogency in law.

It is to be observed that the board in this case made a finding of fact excluding, in effect, the evidence of the grievor and relied exclusively on hearsay evidence, some of which evidence was in conflict. Such evidence may well be admissible by reason of the subsection of the Labour Relations Act above referred to, but it must be borne in mind that in cases of this type the burden is on the employer to show that the employer acted properly in the discharge of the employee and in order to satisfy that burden in this case the employer, in effect, relied exclusively on hearsay evidence. Even though that evidence may well have been admissible we are all of the view that the employee did not receive a fair hearing in the circumstances. His counsel had no real opportunity to cross- examine on the evidence that was presented.

The importance of cross-examination in a case of this type is pointed up by evidence which was hearsay evidence concerning the statements made by Mr. Alexander. To one witness Mr. Alexander apparently said that the installation had been made in the winter and to another in the late spring. The date upon which the installation had been installed was crucial in this case. In the circumstances, we are all of the view that the award should be quashed and the matter remitted to the board of arbitration for further consideration.

It is the recommendation of this Court that the matter be heard by a freshly constituted board of arbitration.

Giroux v 2314253 Ontario Inc. (Hilton Transportation), 2018 CanLII 104552 (CA SA)

Although an adjudicator has the power to receive hearsay evidence (by the combined effect of subsection 242(2) and paragraph 16(c) of the Code), the case-law makes it very clear that such evidence cannot be relied on as a basis for decision. In Regina v. Barber et al., Ex parte Ware-housemen and Miscellaneous Drivers' Union Local 419, 1968 CanLII 446 (ON CA), [1968] 2 O.R. 245, Mr. Justice Jessup, for the Ontario Court of Appeal, stated the following, at page 252, in relation to the Ontario legislation comparable to paragraph 16(c) of the Code:

By that clause the Legislature recognized that arbitrations will frequently be presented before arbitration boards by lay persons. Accordingly, it relaxed the strict rules as to the admissibility of evidence and in particular allowed hearsay evidence to be adduced without objection. However, that provision does not relieve a board from acting only on evidence having cogency in law.

Hearsay evidence does not have “cogency in law”. As a result, it has been routinely decided that an arbitrator (or adjudicator) cannot act on hearsay evidence: see, eg., Girvin v. Consumers' Gas, [1973] O.J. No. 814 (Divisional Court).