Hearsay Evidence at a Tribunal

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Date Retrieved:	2024-05-04
CLNP Page ID:	1826
Page Categories:	[Evidence Law]
Citation:	Hearsay Evidence at a Tribunal, CLNP 1826, <58>, retrieved on 2024-05-04
Editor:	Sharvey
Last Updated:	2021/12/13

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.