Ontario Evidence Law — Admissibility, Hearsay, Privilege, and Expert Evidence

The Evidence Act RSO 1990

The Evidence Act RSO 1990 c E.23 governs civil proceedings in Ontario courts. Criminal proceedings in Ontario are governed by the Canada Evidence Act RSC 1985 c C-5. Both statutes exist alongside the common law of evidence, which continues to apply in the absence of statutory provision.

Key provisions of the Ontario Evidence Act:

• s.8: Spouses of parties are competent and compellable witnesses in civil proceedings
• s.13: Where a person whose evidence is material is dead or unable to testify, documents signed by that person may be admitted with corroborating evidence (discretionary)
• s.35: Business records — records made in the usual and ordinary course of business are admissible without calling the maker; the foundation requires evidence of the nature of the business and the record-keeping practice
• s.52: Admissibility of documentary evidence with proper foundation

Hearsay — The Principled Approach

Hearsay is an out-of-court statement tendered for the truth of its contents. The traditional rule excluded hearsay subject to categorical exceptions (dying declarations, admissions by party-opponents, statements against interest, res gestae, etc.). The Supreme Court of Canada has replaced this with the principled approach:

• R v Khan [1990] 2 SCR 531 — hearsay can be admitted on a principled basis where necessary and reliable
• R v Smith [1992] 2 SCR 915 — principled approach established; traditional exceptions retain presumptive admissibility
• R v Starr 2000 SCC 40 — threshold reliability assessed at the voir dire; categories can no longer expand by analogy alone

The two criteria for principled hearsay admission:

1. Necessity: The original declarant is unavailable (dead, ill, outside jurisdiction, unwilling to testify after being found in contempt) OR the original evidence cannot be presented in an equally effective way. Mere preference for the out-of-court statement is insufficient.
2. Threshold Reliability: There are sufficient circumstantial or corroborating guarantees of trustworthiness that the usual dangers of hearsay (no oath, no cross-examination, no demeanour assessment) are overcome. Reliability is assessed at a voir dire.

Traditional categorical exceptions retain their presumptive admissibility (admissions by party-opponents, dying declarations, business records s.35 Evidence Act, prior inconsistent statements under oath after adverse witness finding s.9(2) Canada Evidence Act). Each exception has its own conditions.

Prior consistent statements are generally inadmissible to bolster a witness's credibility. Exceptions: rebut allegation of recent fabrication; prior identification evidence; to establish truth where Khan necessity and reliability met.

Similar Fact Evidence

Similar fact evidence (evidence of prior discreditable conduct) is presumptively inadmissible because its primary effect is to show propensity to commit the act in question, which risks reasoning based on moral character rather than proof of the specific act.

The test from R v Handy 2002 SCC 56:

1. The party seeking admission must identify the specific use to which the evidence is put (identity, intent, modus operandi, absence of mistake — not propensity alone);
2. The probative value must exceed the prejudicial effect on a balance;
3. In criminal cases, probative value is assessed against: connection to the accused, degree of similarity to the alleged offence, timing, number of prior instances, circumstances, and presence of a distinctive pattern.

Striking similarity in the prior conduct and the alleged offence increases the inferential strength. Handy noted the "hallmark" or signature quality of conduct can elevate probative value enough to warrant admission.

In civil proceedings, similar fact evidence is subject to the same principled cost-benefit analysis: probative value vs prejudice and trial efficiency. Ontario courts have admitted prior misconduct to prove fraud, breach of fiduciary duty, and dishonesty in commercial disputes where sufficiently probative.

Privilege

Solicitor-Client Privilege

Solicitor-client privilege is a substantive rule of law, not merely an evidentiary rule: Lavallee, Rackel & Heintz v Canada (AG) 2002 SCC 61. It protects all communications between a lawyer and client made in confidence for the purpose of obtaining or providing legal advice. Key features:

• The privilege belongs to the client, not the lawyer
• The privilege is permanent — it continues after the retainer ends and after the client's death
• The privilege extends to the legal advice continuum — all communications substantially connected to the provision of legal advice
• The privilege applies to legal advice privilege (seeking/providing advice) and litigation privilege (dominant purpose of anticipated litigation)

Crime-fraud exception: Solicitor-client privilege does not protect communications in furtherance of a crime or fraud. The exception requires a prima facie case that the communication was in furtherance of a criminal or fraudulent purpose: Smith v Jones [1999] 1 SCR 455 (public safety exception — where there is a clear risk to an identifiable person or group of serious bodily harm or death, the privilege may be overridden; threshold is high).

Litigation Privilege

Litigation privilege protects documents and communications prepared with the dominant purpose of anticipated or ongoing litigation. Unlike solicitor-client privilege, it extends beyond lawyer-client communications to include materials prepared by third parties (investigators, experts before retainer as experts). Litigation privilege ends when the litigation is concluded. Blank v Canada 2006 SCC 39 confirmed the distinction between the two privileges.

Informer Privilege

Police informer privilege is absolute — it cannot be overridden even to prove innocence: Named Person v Vancouver Sun 2007 SCC 43. The Crown must either disclose the informer's identity or stay the proceedings.

Public Interest Immunity / Crown Privilege

The court balances the public interest in non-disclosure against the litigant's interest in disclosure: R v Stinchcombe [1991] 3 SCR 326 (disclosure; Stinchcombe obligations of Crown in criminal proceedings); Conway v Jacques (1954) ONCA (civil public interest immunity).

The Voir Dire

A voir dire is a trial within a trial held to determine admissibility of evidence before it is placed before the trier of fact. Common voir dire purposes:

• Voluntariness of a statement (criminal) — R v Oickle 2000 SCC 38
• Admissibility of hearsay under the principled approach
• Qualification of an expert witness
• Charter s.24(2) exclusion hearing

In jury trials, the jury is excused during the voir dire. The judge determines admissibility; the jury then hears only admitted evidence.

Expert Evidence — The Mohan Framework

The leading case on the admission of expert evidence in Canada is R v Mohan[1994] 2 SCR 9, establishing a four-part test:

1. Relevance: The evidence must be logically relevant to an issue in the case;
2. Necessity: The evidence must assist the trier of fact beyond the scope of their ordinary knowledge and experience — experts cannot simply tell the trier what conclusion to reach on the ultimate issue;
3. Absence of an exclusionary rule: No specific rule excludes the evidence; and
4. Properly qualified expert: The witness must have expertise by reason of training, study, or experience in the relevant field.

White Burgess Langille Inman v Abbott and Haliburton Co 2015 SCC 23 added a threshold gatekeeping function on the expert's independence and impartiality:

• The expert has a duty to the court to provide fair, objective, and non-partisan opinion
• An expert who cannot or will not fulfil this duty should not be admitted, regardless of expertise
• The weight given to expert evidence must account for real or apparent bias

R v Sekhon 2014 SCC 15 held that an expert witness cannot usurp the role of the trier of fact by providing ultimate issue opinions on credibility or guilt. In Ontario civil proceedings, the expert can opine on the ultimate issue (e.g., standard of care breach) but the trier retains independent judgment.

Expert Reports in Ontario Civil Proceedings

Rule 53.03 of the Rules of Civil Procedure RRO 1990 Reg 194 requires expert reports to be served in advance and sets out mandatory contents: the expert's qualifications, the opinion expressed, the basis of the opinion, and an acknowledgment of the expert's duty to the court. Failure to comply may result in exclusion at trial.

Section 24(2) Charter — Exclusion of Evidence

Where evidence is obtained in a manner that infringes the Canadian Charter of Rights and Freedoms, s.24(2) provides that the evidence shall be excluded if admitting it would bring the administration of justice into disrepute. The R v Grant 2009 SCC 32 three-stage analysis:

1. Seriousness of the Charter-infringing conduct — more serious infringement favours exclusion;
2. Impact on the accused's Charter-protected interests — more serious impact on interests favours exclusion; and
3. Society's interest in adjudication on the merits — where the evidence is reliable and the offence serious, admission may be warranted.

In Ontario, the Grant framework applies in both provincial court and Superior Court criminal proceedings. The Evidence Act has no equivalent exclusionary provision for civil proceedings; however, courts retain discretion to exclude evidence obtained in bad faith where admission would compromise trial fairness.