Admission of Evidence at Trial

General Evidence Rules

• Parole Evidence Rule
• Expert Reports

Production Order for Documents in Small Claims Court

See: Order for Production

Rule 18.02 Exception to Hearsay Rule

O. Reg. 258/98: RULES OF THE SMALL CLAIMS COURT Written Statements, Documents and Records

18.02 (1) A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise. O. Reg. 78/06, s. 36 (1).

(2) Subrule (1) applies to the following written statements and documents:

1. The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.

2. Any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a receipt, a bill, documentary evidence of loss of income or property damage, and a repair estimate. O. Reg. 258/98, r. 18.02 (2); O. Reg. 78/06, s. 36 (2).

Details about Witness or Author

(3) A party who serves on another party a written statement or document described in subrule (2) shall append to or include in the statement or document,

(a) the name, telephone number and address for service of the witness or author; and

(b) if the witness or author is to give expert evidence, a summary of his or her qualifications. O. Reg. 78/06, s. 36 (3).

(4) A party who has been served with a written statement or document described in subrule (2) and wishes to cross-examine the witness or author may summon him or her as a witness under subrule 18.03 (1). O. Reg. 258/98, r. 18.02 (4).

Where Witness or Author is Summoned

(5) A party who serves a summons to witness on a witness or author referred to in subrule (3) shall, at the time the summons is served, serve a copy of the summons on every other party. O. Reg. 78/06, s. 36 (4).

(6) Service of a summons and the payment or tender of attendance money under this rule may be proved by affidavit (Form 8A). O. Reg. 78/06, s. 36 (4).

Adjournment

(7) A party who is not served with a copy of the summons in accordance with subrule (5) may request an adjournment of the trial, with costs. O. Reg. 78/06, s. 36 (4).

Garcia v. 1162540 Ontario Inc., 2013 ONSC 6574 (CanLII)

[17] The Deputy Judge expressed skepticism regarding the probative value of these statements in paragraphs 77 and 78 of his reasons. Admission of these statements under Rule 18.02 of the Rules of the Small Claims Court, O. Reg. 258/98 does not require the trial judge to accept the statements as probative.

Lakehead Aluminum v. Mauno Parkkari, 2014 ONSC 4167 (CanLII)

[16] The appellant submits that the trial judge erred in admitting this document in light of rule 18.02(1) of the Rules of the Small Claims Court, O.Reg 258/98, which states as follows: A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise. O. Reg. 78/06, s. 36 (1).

[17] In addition, the appellant submits that the trial judge erred in failing to apply the rule “universally” throughout this case because he declined to admit photographs that Mr. Pietila had taken of Mr. Parkkari’s home on the basis that they had not been shown to the appellant. The trial judge also refused to allow Mr. Parkkari to introduce inspection reports prepared by a Larry Hoggard, who was not available to testify at trial.

[19] Mr. Parkkari’s submission that the trial judge erred in admitting the handwritten report rests on the premise that rule 18.02(1) requires the exclusion of any document, written statement and audio or visual record that has not been served at least 30 days in advance of the trial. I do not agree for a number of reasons.

[20] The strict construction propounded by the appellant is not supported by the wording of s. 27 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which sets out the jurisdiction of the Small Claims Court to hear evidence as follows:

27.(1) Subject to subsections (3) and (4), 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, but the court may exclude anything unduly repetitious.
(2) Subsection (1) applies whether or not the evidence is given or proven under oath or affirmation or admissible as evidence in any other court.
(3) Nothing is admissible in evidence at a hearing,
    (a) that would be inadmissible by reason of any privilege under the law of evidence; or
    (b) that is inadmissible by any Act.
(4) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.
(5) A copy of a document or any other thing may be admitted as evidence at a hearing if the presiding judge is satisfied as to its authenticity.

[21] Thus, provided that the evidence is not subject to privilege or rendered inadmissible by any Act, the Small Claims Court has the discretion to admit any oral or documentary evidence, whether or not sworn, affirmed or admissible in any other court, and a copy of a document may be admitted provided the court is satisfied as to its authenticity. While rule 18.02 expressly mandates the admission of documents that fall within its terms, it does not require the exclusion of documents that do not fall within its terms as set out in Ontario Small Claims Court Practice 2014:

Rule 18.02 is often misinterpreted. The rule provides a procedure for the admission of documents which have been served on the other parties at least 30 days before trial, without the need for in-person witness. It does not say that no document can be admitted at trial unless it was disclosed at least 30 days before trial: see O’Connell v. Custom Kitchen & Vanity, 1986 CanLII 2650 (ON SC), 1986 CarswellOnt 414, 56 O.R. (2d) 57, 11 C.P.C. (2d) 295, 17 O.A.C. 157 (Ont. Div. Ct.). Rule 18.02 is an enabling provision and not a prohibition. It enables the admission of documents which might otherwise be excluded as hearsay. Documents not admitted under rule 18.02 may be admitted through other means such as through an in-person witness (M.A. Zuker and J.S. Winny, Ontario Small Claims Court Practice, 2014 (Toronto: Thomson Reuters, 2013) at p. 206).

Untinen v Dykstra c.o.b., Dykstra Roofing & Renovations, IKO Industries Ltd., 2016 ONSC 4721 (CanLII)

[23] On the trial judge’s decision to admit opinion evidence without a report having been filed 30 days prior to trial, the Appellant relies on Tosti v. Society of the Madonna Di Canneto of Windsor Inc., 2011 ONSC 339 (CanLII), 275 O.A.C. 108 (Div. Ct.), in support of his position that the Rules of the Small Claims Court require service and filing of an expert report prior to trial.

[24] The Respondents rely on Prohaska v. Howe, 2016 ONSC 48 (CanLII) (Div. Ct.), in support of their position that there is no such absolute requirement and that the Small Claims Court trial judge retains discretion over the evidence to be presented at trial; all of the circumstances of the matter must be considered in deciding if expert evidence should be received where no prior written report was served and filed.

[25] In Prohaska, LeMay J. specifically reviews the findings of Nolan J. in Tosti together with other jurisprudence. This leads her to the conclusion that there is to be a balancing of how evidence is admitted, and that in considering that balance, Small Claims Court judges can exercise discretion in deciding if opinion evidence should be admitted in the absence of a prior written expert report having been served and filed.

[26] In > Prohaska, the trial judge ruled that the expert evidence was inadmissible in the absence of prior service of an expert’s report. The Divisional Court held that Rule 18.02 of the Rules of the Small Claims Court allows for flexibility: expert reports should be served at least 30 days prior to trial, but trial judges have the discretion (by virtue of their gatekeeping role) to allow expert evidence even if the report was not filed ahead of time, as long as they exercise their discretion reasonably.

[27] In Parkkari v. Lakehead Aluminum Ltd., 2014 ONSC 4167 (CanLII), 324 O.A.C. 8 (Div. Ct.), the trial judge admitted a document the Respondent claimed he had never seen. On appeal, Harvison Young J. relied on authorities which state that Rule 18.02 of the Rules of the Small Claims Court is an enabling provision and not a prohibition. It enables the admission of documents which might otherwise be excluded as hearsay but it does not prohibit evidence which has not otherwise complied with Rule 18.02: see Parkkari, at para. 21. The Divisional Court concluded that while Rule 18.02 mandates the admission of documents that fall within its terms, it does not require the exclusion of documents that do not fall within its terms.

Hearsay Evidence

Canadian Imperial Bank of Commerce v Wiedemann, 2019 CanLII 10131 (ON SCSM)

8. Hearsay may be admitted in Small Claims Court but is generally entitled to reduced weight because it is hearsay and therefore less reliable than direct evidence: Central Burner Service Inc. v. Texaco Canada Inc. (1989), 36 O.A.C. 239 (Div. Ct.).