Hearsay in Civil Courts: Simplifying the Rules of Evidence to Enhance Justice for All

By: Marcie Gray

The hearsay rule that a witness can only testify to what he or she actually observed, and not to what someone else told him or her, is the most frequently used, most complex and most exception-ridden of the exclusionary rules of evidence.¹

Hearsay, a statement made outside of court and then offered at a court proceeding to prove the truth of its contents, is presumptively inadmissible.² The law restricting hearsay developed over centuries in the common law world, and its rationale is sound: to support the search for truth. With no ability to swear the declarant to an oath, witness their demeanor, or cross-examine them, a decisionmaker cannot properly assess second-hand evidence. It stands unchallenged and may cloud, rather than clarify, the search for truth. The goal of keeping unreliable evidence out of the courtroom is surely laudable but the rules surrounding hearsay call out for reform. Commentators agree the traditional approach – forbidding the admission of a statement unless it falls into a categorical exception – is too rigid or rule-bound,³ with the exceptions “a largely shambolic and random collection.”⁴ One American critic describes the approach as “an antique, arbitrary and often irrational effort to capture the concepts of reliability and probative value in fixed categories and thus destined to produce unsatisfactory results.”⁵

Several countries, including Canada, have attempted to reform the law of hearsay to allow more flexibility and emphasize the twin principles of necessity and reliability, but complexity remains. England and Wales, along with Scotland, have broken away from the traditional rules by making all hearsay statements admissible in civil courts. This open-door policy, I contend, is a step too far. Admitting hearsay without limit creates further complications while allowing rumour and innuendo to unfairly taint litigants. Canadian civil courts should adopt a more evolutionary approach, stripping away categorical exceptions but retaining the principles of necessity and reliability.

Civil courts are an appropriate forum for hearsay reform for three reasons. First, these courts see a high percentage of self-represented litigants, who have no legal training on the perplexing rules of hearsay. The National Self-Represented Litigants Project reports that approximately three out of five people who self-represent are involved in civil cases.⁶ In addition, most people self-represent because they cannot afford a lawyer or do not qualify for Legal Aid.⁷ Removing the categorical exceptions would improve access to justice in civil courts.

Second, the current hearsay rules are perhaps better suited for criminal law, since the rules were born in the common law and have grown up in criminal courts. As David M. Paciocco notes, various factors have led courts to write their leading decisions on rules of evidence for criminal cases, which may entail different considerations from civil cases.⁸ “One of the greatest challenges confronting lawyers and judges in civil cases is the fact that, when it comes to the rules of proof, they have to wear ‘hand-me-downs’…[and] those rules may not fit well or even at all in civil litigation.”⁹ In criminal litigation, the goal is to convict the guilty, while in civil litigation, the goal is to resolve disputes. Thus, the accepted reasoning is that in a criminal context, to balance the public interest of convicting the guilty with that of avoiding wrongful convictions, courts must have the ability to scrutinize out-of-court statements before allowing their admission.¹⁰ In a civil context, hearsay may permit the quick resolution of a less critical dispute. While some civil cases may involve severe consequences, including monetary awards, fines, and loss of reputation, other civil cases entail lower stakes, making them appropriate candidates for a simpler approach to hearsay.

Third, the legal community is likely more ready to embrace a simpler approach in the context of civil litigation. The Supreme Court of Canada has spent more than thirty years developing its current principled approach, mostly in the criminal sphere, and is unlikely to abandon that work now.¹¹ In R v Khelawon, Justice Charron acknowledged that rules of evidence have relaxed in recent decades, but the general exclusionary rule for hearsay is here to stay.¹² “[T]he traditional rules of evidence reflect considerable wisdom and judicial experience. The modern approach has built upon their underlying rationale, not discarded it.”¹³ As Justice Iacobucci stated in R v Starr, “[b]y excluding evidence that might produce unfair verdicts, and by ensuring that litigants will generally have the opportunity to confront adverse witnesses, the hearsay rule serves as a cornerstone of a fair justice system.”¹⁴ Others in the legal community agree. Law reform commissions in several common law countries have discussed allowing hearsay but, inevitably, their recommendations have called for keeping the exclusionary rule in place for criminal trials.¹⁵ Indeed, Canada’s 1982 Federal/Provincial Task Force on Uniform Rules of Evidence recommended allowing all first-hand hearsay in the civil context but advocated stringent rules in the criminal context.¹⁶

While I do not support allowing all first-hand hearsay in civil courts, I argue it is time to simplify the Canadian approach. This essay begins with a brief discussion of the current hearsay framework in this country, followed by an examination of the British experience.¹⁷ After the House of Lords ruled in 1991 that Parliament, not courts, should reform the law of hearsay, England and Wales passed legislation that allowed all out-of-court statements in civil proceedings.¹⁸ This open-door policy is not a model of simplicity, however, as those who admit a hearsay statement must still be able to recognize it and its potential weaknesses. Under the legislation, procedural problems involving giving notice may lead courts to discount valuable evidence. Scotland has rejected notice requirements, but its approach may leave parties vulnerable to the unexpected introduction of hearsay statements. Next this essay considers the administrative law context, where tribunals typically operate free from the rules of evidence, including hearsay. Decisionmakers have developed principles to guide them in weighing evidence, but I submit that in a civil court setting, allowing all hearsay, including rumour and innuendo, would interfere with the proper resolution of claims and risk unfairly tainting litigants. Some safeguards must be in place to ensure unreliable evidence does not enter the civil court, where consequences may not amount to loss of liberty but can still have great impact on individuals. In firmly choosing to retain the principles of necessity and reliability, I finish by considering whether some categorical exceptions are worth keeping.

Canada: The Principled Approach to Hearsay

Hearsay is a double-edged sword; allowing it may cloud the search for truth but forbidding it may hurt the search, as potentially valuable information remains outside the hands of the trier of fact. In an attempt to identify out-of-court statements that are either inherently reliable or may be tested for reliability, the common law developed more than thirty categorical exceptions to the rule against hearsay.¹⁹ However, the purpose of the exceptions sometimes became lost in their rote application. As the Supreme Court said in R v U(FJ), “[t]he hearsay rule and its rigidly formulated exceptions had become a sometimes illogical and frequently confusing series of pigeon-hole categories.”²⁰ In trying to squeeze a hearsay statement into a particular category, evidence warranting inclusion could fall by the wayside, and evidence deserving exclusion could make its way in. To address this inflexibility, the Supreme Court accepted the wisdom of John Henry Wigmore – who advocated admitting hearsay according to the twin principles of necessity and reliability – and began developing what is known today as the principled approach.²¹

In R v Khan, Justice McLachlin, as she then was, took the first step on this path. She bypassed a categorical exception that, while correctly applied by the trial judge, did not ensure reliable testimony would be admitted.²² The exception of spontaneous declaration required that a declarant make a hearsay statement contemporaneously with the event in question, and under pressure or emotional intensity. In R v Khan, the child declarant told her mother of a sexual assault but at least half an hour had passed since the event and the conversation did not put pressure on the child, who was three and a half years old at the time. At trial, the judge found the child incompetent to testify and refused to allow the mother to relay the child’s statement since it did not qualify as a spontaneous declaration. Justice McLachlin pointed out that where a child’s statement would qualify under the exception, the evidence would suffer from defects:

There is no requirement that resort to the hearsay evidence be necessary. Even where the evidence of a child might easily be obtained without undue trauma, the Crown would be able to use hearsay evidence. Nor is there any requirement that the reliability of the evidence in the particular be established; hence inherently unreliable evidence might be admitted.²³

While noting that the general exclusionary rule and categorical exceptions provided a degree of certainty, Justice McLachlin ruled that a more flexible approach, based on necessity and reliability, would ensure a court is not deprived of potentially valuable evidence.²⁴

In the following years, the Supreme Court refined its approach, as it wrestled with questions such as whether the twin principles should apply before the categorical exceptions, and how to define “necessity” and “reliability.” In R v Khelawon, the Court confirmed the governing framework:

1. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
2. A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
3. In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
4. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.²⁵

The principled approach may also be viewed as comprising two components: the principled exception and the “Starr Review.”²⁶ Describing the approach, Paciocco states that under the first leg, hearsay that meets the twin principles of necessity and reliability is admissible regardless of categorical exceptions, as long as the court does not exercise its residual exclusionary discretion. Under the second leg, the court must follow the guidance from R v Starr and revise or refuse to apply the categorical exceptions where they fail to meet the twin principles. Paciocco notes the two-part principled approach applies in criminal and civil proceedings.²⁷ With this brief explanation of the current law of hearsay in Canada, we may look to other countries and their experiences attempting to allow all hearsay in civil courts.

The United Kingdom: Attempts to Allow All Hearsay in Civil Litigation

According to Wigmore, the rule against hearsay has its origins in a British treason trial in the late seventeenth century, where the court refused to admit a statement from a witness who was not called to give evidence.²⁸ Since “Fenwick’s Trial”, England and Wales have tried to add flexibility to the rule against admissibility by creating statutory and common law exceptions, eventually establishing a single source for hearsay rules in civil litigation with the Civil Evidence Act 1968.²⁹ This Act maintained the presumption against hearsay, codifying certain exceptions and granting judicial discretion to admit hearsay where an exception did not apply.³⁰ Critics were dissatisfied with this “elaborate and procedurally complex scheme,”³¹ and the Law Commission engaged in further reform. Two principles guided the Commission’s work: simplification of the law of evidence and the admission of all evidence “unless there is a good reason for it to be treated as inadmissible.”³² The Commission recommended abrogating the rule against hearsay, and that recommendation is ensconced in the Civil Evidence Act 1995.³³ Section 1(1) states that in civil proceedings, “evidence shall not be excluded on the ground that it is hearsay.”³⁴ The language of the provision sends the clear message that the hearsay rule is abolished, and observers have repeated the message.³⁵ However, British commentators say lawyers still need to be able to identify hearsay, and procedural hurdles may reduce the value of inherently reliable hearsay evidence.

John Peysner points to provisions regarding giving notice and weighing evidence, suggesting these provisions may work together to undermine the rationale for admitting hearsay – the search for truth. Under the 1995 Act, when one party wishes to adduce hearsay evidence, it must give notice to the second party (or parties),³⁶ and that second party may request particulars³⁷ and challenge the hearsay statement by calling the declarant as a witness.³⁸ Failure to give notice does not render the evidence inadmissible; rather, the court may consider the failure “as a matter adversely affecting the weight to be given to the evidence.”³⁹ Section 4(2) provides a non-exhaustive list of other circumstances a court may consider in weighing the hearsay evidence:

1. whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
2. whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
3. whether the evidence involves multiple hearsay;
4. whether any person involved had any motive to conceal or misrepresent matters;
5. whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
6. whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.⁴⁰

These circumstances address the inherent difficulty in testing the reliability of an out-of-court statement because of a lack of opportunity to cross-examine the declarant’s memory, sincerity, perception, and capacity to communicate.⁴¹ Section 4(2)(a) illustrates the general principle that first-hand testimony is best evidence, with the provision encouraging courts to give less weight to statements where a party had the reasonable opportunity to put the declarant on the stand. Section 4(2)(b) addresses the concerns of memory and sincerity by asking whether the evidence is contemporaneous, because a statement given shortly after events may be more trustworthy as the events are fresh in the declarant’s mind and there has been little time for the declarant to fabricate facts. Section 4(2)(c) highlights the concern of a declarant’s ability to perceive facts, since multiple hearsay adds distance between the declarant and the facts. The remaining subsections concern the declarant’s sincerity and capacity to communicate.

While these circumstances speak directly to reliability, the failure to give notice is a technical issue and may have little to do with reliability of the evidence itself. When the 1995 Act was introduced in England and Wales, Peysner suggests that lawyers already had a poor track record for giving notice, due to constraints extrinsic to the value of hearsay. The litigation process was evolving as legislators and the judiciary aimed to improve access to justice through various measures, including case management. Lawyers accustomed to waiting until trial day to reveal their evidence saw a shift to a “cards on the table” approach.⁴² The division between solicitors and barristers was a complicating factor, as solicitors were the early fact gatherers, while barristers had expertise in rules of evidence. The emphasis on pre-trial exchange of information meant that solicitors had to identify and give notice of potential hearsay statements long before barristers became involved in the case. Under the 1968 Act, the notice requirement existed but lawyers could request that the court exercise its discretion to allow the hearsay statement. The Law Commission found that lawyers fell into a pattern of requesting the use of this discretion, and Peysner writes that it was often granted:

the alternative was for the court to deploy two blunt weapons: to order an adjournment, with the offending party paying the costs and the orderly arrangement of judicial business being disrupted, or to declare the evidence inadmissible, thus depriving the tribunal of relevant evidence, of potential assistance to the fact-finder, on a “technicality”.⁴³

The 1995 Act avoids such consequences because hearsay is admitted automatically. However, where there is no notice, the statute guides courts to discount the weight of the out-of-court statement. While the Law Commission recommended the notice requirement to assuage concerns that allowing all hearsay would lead to a flood of second-rate evidence,⁴⁴ the result is that under the 1995 Act, potentially probative evidence may gain a false sheen of unreliability. Where extrinsic circumstances create a likelihood that lawyers will fail to give notice, much probative evidence may be dismissed as untrustworthy.

Peysner points to Scotland for a model of true abolition of the hearsay rule in civil litigation. Section 2(1)(a) of the Civil Evidence (Scotland) Act 1988 states that in any civil proceedings, “evidence shall not be excluded solely on the ground that it is hearsay.”⁴⁵ The language closely mirrors the 1995 Act in England and Wales, but the Scottish Act has no notice requirements. The Scottish Law Commission had recommended such requirements and a strict consequence that failure to give notice would make the hearsay statement inadmissible, but legislators were concerned that such a plan “would lead to the retention of the exclusionary rule by the back door.”⁴⁶ Thus, hearsay is admissible, and unlike in England and Wales, there are no provisions in the Scotland Act guiding how courts should interpret weight. There is also no pre-trial duty to exchange statements; parties must simply exchange lists of witnesses who they may or may not call. While this may raise concerns that one party may add or drop witnesses at the last minute, conducting “trial by ambush,” Peysner contends that the system works well in practice: “the ultimate sanction lies in the ability of the advocate to address the judge on weight and comment on the strength of the witnesses called and also on the evidential implications where a witness is ‘tendered’ and then withdrawn.”⁴⁷ The efficacy of the Scottish approach is difficult to confirm, as most commentators write about the country’s attempts at reforming the law of hearsay in the criminal sphere. One such commentator touches on the Civil Evidence (Scotland) Act 1988, noting that the Act still allows exclusion of hearsay statements where they conflict with other rules of evidence. Gerry Maher states, “the changes have generally worked in practice and there is no feeling that civil justice has been weaker since their introduction.”⁴⁸ However, Maher does not provide specifics indicating how the Scottish approach may be effective. Thus, I turn to administrative law for further insight.

Administrative Law: Hearsay Welcome and Goes to Weight

Common law and statutes make clear that administrative bodies have discretion to admit hearsay. In 1968, Lord Denning pronounced on this discretion in the context of a tribunal reviewing the decision of a local planning authority.

A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be regarded as reliable. Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law.⁴⁹

Lord Denning’s direction is reflected in various statutes – both general procedural statutes and specific enabling statutes. Alberta’s Administrative Procedures and Jurisdiction Act, s. 9(a), states that those granted authority under the Act are not required “to adhere to the rules of evidence applicable to courts of civil or criminal jurisdiction.”⁵⁰ The Alberta statute governing workplace grievances, the “Labour Relations Code”, grants broad authority to the Board to make its own rules of procedure “for the conduct of its business, including inquiries and hearings.”⁵¹ More specifically, s. 14(5) of the Code states the Board:

1. may accept any oral or written evidence that it, in its discretion, considers proper, whether admissible in a court of law or not, and
2. is not bound by the law of evidence applicable to judicial proceedings.⁵²

Similarly, the Alberta Human Rights Act, s. 30(2), states that “[e]vidence may be given before a human rights tribunal in any manner that the tribunal considers appropriate, and the tribunal is not bound by the rules of law respecting evidence in judicial proceedings.”⁵³

The reasoning for allowing administrative bodies to disregard traditional rules of evidence is that these bodies and courts serve different functions. A tribunal employs experts, often laypeople, who are better placed than judges to resolve disputes in the particular field and must be freed from having to know legal intricacies in order to work effectively and expeditiously. Expecting these experts to try to apply rules of evidence is unfair to the experts and will not lead to better outcomes, argue Robert W. Macaulay and James L.H. Sprague. “There is something sad, if not aggravating, about an agency whose members have been chosen for their expertise in areas that often have nothing to do with judicial process (even if that expertise is simply being a touchstone of community standards) hopelessly flailing about struggling to conduct themselves as they think the courts would.”⁵⁴ Macaulay and Sprague submit that not only should agency members disregard the evidentiary rules, they should ignore any impulse to learn them. Endeavouring to understand the legal minutiae, these members will remain on an unequal footing with lawyers who practice the rules in court on a daily basis, and any debate about the rules will draw the member “from the relatively safe shallows of the basics and into the dark and deep seas of the complex.”⁵⁵ In the process, the member will implicitly endorse the incorrect position that the tribunal is beholden to the traditional rules of court.⁵⁶

Macaulay and Sprague call freedom from technical rules a mixed blessing, because while rules restrict, they also reveal a clear path forward. Where rules against hearsay are at play, a party must identify the out-of-court statement and show that it meets criteria of necessity and reliability, or a categorical exception. Where an administrative body is free from evidentiary rules, and a party objects to the admission of certain evidence, the decisionmaker must identify the practical weakness and then decide how that weakness affects the weight of the evidence – a potentially difficult task.⁵⁷ In reviewing administrative decisions on a standard of reasonableness, courts have recognized that they should give deference to decisions regarding admissibility of evidence.⁵⁸ However, courts have also identified a point at which hearsay is of such low quality that an administrative body must not accept it; a decision must not be based on “‘mere speculation, unsubstantiated rumours, innuendo and unreliable or incredible evidence.’”⁵⁹ Such evidence is particularly problematic where an administrative body’s decision may have a detrimental impact on a person’s reputation.⁶⁰

Decisions from labour relations boards reveal two hearsay principles that guide the boards and arbitrators: corroboration and centrality of an issue. In 7-Eleven Canada Inc (Re), the British Columbia Labour Relations Board succinctly set out the approach. While hearsay evidence is admissible under the Board’s Code, two conditions remain: “(1) that uncorroborated hearsay not be preferred to direct testimony, and (2) that hearsay evidence alone not be admitted to establish a crucial issue without corroboration.”⁶¹ The Alberta Labour Relations Board appears to follow these guiding principles. In a recent ruling, a review panel upheld a decision by a preliminary panel to accept hearsay as part of the overall evidence. The review panel noted that the impugned hearsay evidence “was not a singular statement, but a consistent chain of written and verbal statements.”⁶² In another ruling, the Board accepted double hearsay and gave it weight as one factor among other corroborating evidence. In judicial review, this decision was upheld as reasonable.⁶³

In a third ruling, the Board refused to admit hearsay because the evidence stood alone and was central to the key issue.⁶⁴ The ruling concerned an application by certain employees of the Town of Magrath to revoke their union’s bargaining rights. The employees had to collect a sufficient number of signatures on a petition, and a Board policy bulletin required that those signatures be given voluntarily. However, the employee who presented the petition to the Board had not witnessed the collection of signatures and lacked first-hand knowledge of whether proper procedures had been followed to ensure the petition’s validity. While noting that the Labour Relations Code and s. 14(5) give the Board discretion to admit whatever evidence it sees fit, the Board noted that it must also consider procedural fairness. Accepting hearsay meant denying the opposing party the opportunity of cross-examination.

The spokesperson at the hearing did not have first-hand knowledge, and the two witnesses who could provide the evidence were not present. This situation does not involve any factor where the hearsay evidence is a necessary substitute for the “best” first-hand evidence, or which might lend some particular credibility or reliability to the evidence which is proposed. It is also important to note that the proposed evidence goes to the crux of the issue in this hearing, voluntariness.⁶⁵

The Board dismissed the application to revoke the union’s bargaining rights, saying that where a party adduces hearsay to prove a necessary element of its case, the Board will be “particularly reluctant” to accept the evidence.⁶⁶

With the principles of corroboration and centrality available as guidance, administrative bodies seem well placed to remove unreliable hearsay from the calculation of evidentiary weight. However, another aspect of administrative law – the power to compel – may work with admissible hearsay to create unfairness for respondents called to answer to a tribunal. In raising this concern, Melissa J. MacKewn contrasts civil law with administrative law, stating that “[u]nlike the civil context where parties have reciprocal discovery rights, respondents in the administrative law environment are navigating an uneven playing field.”⁶⁷ Regulators have the authority to compel testimony and documentary production during an investigation stage; a respondent does not have reciprocal discovery rights and must rely on the prosecution’s disclosure obligations. Thus, the respondent enters the hearing stage at an informational disadvantage.⁶⁸

As master of its own procedure, the tribunal is free to consider the compelled prior statement. To promote procedural fairness, the administrative body may create rules such as refusing to let a tribunal admit a transcript where the respondent chooses not to testify. However, MacKewn has seen a relaxing of rules at the Ontario Securities Commission. At the time of her writing, she observed a trend where staff counsel were permitted to admit a compelled transcript only when a respondent declined to testify. When a respondent agreed to testify, the tribunal could disallow the transcript but allow it when an inconsistency arose between the transcript and the hearing testimony. As MacKewn points out, “The result is, in effect, the transcript can always be used by the prosecution.”⁶⁹ A lawyer conducting corporate and securities litigation, MacKewn says the accepted practice is that the prosecution cannot compel respondents to testify at the hearing stage, but if the prior statement casts a damaging light on the respondent, he or she will have little choice but to testify at the hearing to redress the damage. While tribunals may act more efficiently because they can compel pre-hearing disclosure and allow hearsay, MacKewn asks “whether the pendulum has swung too far in favour of efficiency and away from the principles of procedural fairness, natural justice and the ability to make full answer and defence.”⁷⁰ One may contend that, compared to criminal law, the stakes are low so the need for procedural fairness is less, but the counter argument is that respondents can face fines of more than one million dollars, disgorgement orders, costs, severe damage to their reputation, and the loss of their professional licences and livelihoods.⁷¹

Applying Lessons Learned from Abroad and Administrative Law

Allowing hearsay does not abolish the need to identify it. Safeguards such as the requirement to give notice are meant to help identify and weed out second-rate hearsay, but the power of notice provisions depends on the penalties attached to failure to give notice, and the willingness of courts to impose those penalties. In England and Wales, under the 1968 Act, hearsay that did not fit into a categorical exception was presumptively inadmissible but courts could exercise their discretion to admit the out-of-court statement, even if parties failed to give notice. A pattern developed where hearsay was regularly admitted even though it may have lacked value. Under the 1995 Act, hearsay is admissible and the penalty is that courts have discretion to discount the weight of the evidence, so that a technicality may make potentially valuable evidence less meaningful. Such a scenario may lead to clients suing their lawyers for professional negligence. “A technical understanding of hearsay, far from being a quaint characteristic of historical interest only, retains its practical importance.”⁷²

The seemingly simple solution would be to follow Scotland’s lead and remove the notice requirement. However, with no notice provision or related penalty, parties may conduct “trials by ambush,” introducing hearsay and hoping to catch the other side unprepared. Peysner suggests Scotland has not encountered this problem, but he is still reticent to end the law against hearsay in England and Wales, instead calling for a “modified Scottish system.”⁷³ This system would remove the notice requirement and alter the obligations involving pre-trial statements. Under the 1995 Act, parties exchange pre-trial statements of declarants who may be called as witnesses. Difficulties arise when a party decides, close to the trial date, not to call a witness but instead rely on his or her statement. Only then must the party provide notice of hearsay, leaving the other side scrambling to marshal a response to the pre-trial statement. Peysner proposes to soften the impact by requiring parties to exchange statements of those they do not plan to call to the stand, so that the other side knows early on that it will need to undertake close analysis of these witnesses’ pre-trial statements. Acknowledging that his proposal could have unanticipated ramifications for disclosure obligations, the scholar submits that the cost is worth the benefit of finally breaking free of the technical rules of hearsay.⁷⁴

Such tinkering with rules of notification and disclosure does not simplify the law of hearsay. Administrative law seems to avoid technical problems by simply admitting hearsay, with questions of relevance going to weight. MacKewn raises concerns about how a regulator’s power to compel statements at the discovery stage may interact with relaxed hearsay rules to the detriment of respondents, but that concern does not exist in the civil context. Under the Alberta Rules of Court, s. 5.17(1), each party is entitled to ask the other questions under oath “about relevant and material records and relevant and material information.”⁷⁵ With reciprocal discovery rights, the concern about “trial by ambush” fades. The difficulty of recognizing a hearsay statement remains, as a decisionmaker must identify the weakness in a piece of evidence to determine how that weakness affects weight. Guiding principles such as corroboration and centrality may help by ensuring that the decisionmaker seeks supporting evidence, particularly when the hearsay statement goes to the crux of the issue.

While the administrative model offers simplicity, allowing hearsay without limit risks too much for the individuals involved in the litigation. When discussing court cases, one speaks of “parties” and “interests” and “rights.” These words do not express the specific, life-altering impacts a civil trial can have on a person. To open the door to hearsay is to risk allowing innuendo, gossip and rumour to enter the court record. While administrative agencies are supposed to refuse to admit such unreliable or incredible statements, there is surely a sliding scale and one would be hard pressed to differentiate between gossip, and information that is slightly more reliable than gossip. In a civil case, without a voir dire to evaluate the admission of hearsay, gossip and rumour could enter the court record and publicly mark the defendant, even if the court ultimately were to decide the evidence had little weight. My concern finds support in the writing of Paciocco, who recognizes the significant risks attached to civil litigation. As an advocate of retaining the law of hearsay in the civil context, he considers whether the principled approach should apply with equal intensity to the criminal and the civil context. While suggesting it may be appropriate at times for civil courts to apply the law less stringently, he is adamant that courts should never refuse to apply the principles of necessity and reliability, or treat civil cases as a class always deserving of less stringent application.⁷⁶ Since the law of hearsay exists to assist in the search for truth, giving a generic discount would amount to an acceptance that the truth matters less in civil cases. He writes, “it is simplistic to think that the truth is uniformly of diminished importance in civil litigation. I suspect that most would rather stand convicted of a minor crime than lose their careers, or their children, or fall to financial ruin.”⁷⁷

Paciocco, referencing administrative forums, points to further difficulties with allowing hearsay. Problems arise at three stages of the process: the hearing, the decision, and the appeal. Going into the hearing, parties are aware they are not beholden to hearsay rules so they may put little effort into adducing evidence to support out-of-court statements. As discussed above in the Alberta Labour Relations Board decisions, some adjudicators will take care to examine the hearsay evidence to see whether it is corroborated and central to the issues in dispute. However, Paciocco reports cases where the tribunals paid scant attention to whether reliable evidence confirmed the out-of-court statements. “Where this occurs, the trier of fact is left with an impoverished record and an impaired ability to evaluate the proof.”⁷⁸

At the decision stage, the trier of fact faces another problem, particularly where the case is complex. In summarizing their arguments, parties may lack the time to address every piece of evidence, and the trier of fact must sift through it all. Where the admissibility of evidence is considered in a voir dire, the judge has an opportunity to scrutinize hearsay statements, but where there is no voir dire, by the time the proceeding reaches the decision stage, the trier of fact is unlikely to give the hearsay the same thorough evaluation. Indeed, the hearsay may lose its second-hand status in the analysis. “It may even be challenging in some cases to recall what information sailed into the record in a hearsay vessel, and what claims were delivered viva voce.”⁷⁹

Allowing the trier of fact to admit hearsay evidence without testing it for necessity and reliability creates problems at the review stage, since the review court or panel cannot examine whether the trier of fact applied the legal test correctly. Restricted to considering whether the trier of fact made an error of fact, a review court will give deference. The result is a conversion of “a reviewable question of law into a largely unreviewable finding of fact.”⁸⁰ The Alberta Labour Relations Board decisions discussed above suggest the situation is not so dire, however. Two of the cases involved appeals (one was an application for judicial review and the other an application for reconsideration by the Board), and the reviewers deliberated whether the Board had properly weighed the hearsay evidence.⁸¹ Applying the principle of corroboration, the reviewers found that in both cases, the Board had relied on hearsay as well as supporting evidence to come to a reasonable decision. The issue of deference did arise, as the reconsideration panel in the second case noted that where there is corroboration, deference to the original decisionmaker may be due. In contrast, where hearsay stands alone, a reconsideration panel may be compelled to step in.

In certain circumstances, reliance on exclusively hearsay evidence for a critical finding can ascend to an error worthy of reconsideration. This ground, however, poses strong potential to amount to an invitation to re-weigh the evidence and thus undermine the finality of Board proceedings. For this reason, a reconsideration panel should rely upon it in only the clearest of cases.⁸²

By invoking the principle of corroboration, the reconsideration panel demonstrated that at the appeal stage, a reviewer may conduct a thorough analysis of hearsay evidence and refuse to give deference when warranted. Nevertheless, Paciocco raises real concerns that allowing hearsay without limit will lead to problems at the court stages of hearing, decision, and appeal. Combined with the pressing need to protect individuals’ lives and livelihoods from unsubstantiated rumour and gossip, civil courts should continue to test hearsay before admitting it.

Choosing a Simpler Path

Having established that civil courts should retain the twin principles, admitting hearsay that is necessary and reliable, I turn to the question of whether courts would benefit by keeping some categorical exceptions. Paciocco contends the exceptions have value in their ease of use, explaining that there is sense in starting the hearsay analysis by considering categorical exceptions and their preconditions for admissibility. “[I]t is generally more certain, expeditious and simple to demonstrate compliance with those preconditions on the balance of probabilities than it is to enter upon a highly discretionary, unpredictable and complex Khan-style voir dire.”⁸³ Evidence that falls into a category is presumptively admissible and rarely faces a challenge on necessity or reliability.⁸⁴ As the Supreme Court stated in R v Smith, the exceptions are based on the same twin principles.⁸⁵

Starting with categorical exceptions has appeal when one considers that the principled approach presents its own technical challenges. Indeed, Paciocco has written a “technical guide” to help law practitioners properly apply the principled approach and ensure civil courts do not give generic discounts to hearsay. His guide has three components: necessity, reliability, and the residual exclusionary discretion. In analyzing necessity, one should consider the context, such as whether the cost and burden of producing first-hand evidence make a civil trial untenable.⁸⁶ For reliability, Paciocco submits that context should not be a factor since the trier of fact, while tasked with assessing only threshold reliability, remains the gatekeeper. “If the hearsay evidence proves to be so bereft of reliability that its admission may jeopardize the integrity of the trial process, it should not be admitted regardless of the context.”⁸⁷ Upon reaching the final step of exclusionary discretion and the balancing of probative value against prejudicial risk, the trier of fact may once again consider the characteristics of civil litigation and how admitting hearsay could create prejudice. Factors include the seriousness of the case, whether the hearsay evidence addresses a central issue, the consequences for the parties, and the policy goals of the law in the particular case.⁸⁸

The lure of certainty tempts one to consider keeping some categorical exceptions, until one remembers that the underlying principles of the exceptions are necessity and reliability. “One might question what value would be added to the principled approach by retaining this complex set of exceptions if they in essence only duplicated the principled analysis itself.”⁸⁹ Lisa Dufraimont champions an approach that involves no categorical exceptions, stating that the numerous, technically dense rules demand too great a price. Difficult to learn and apply for legal practitioners, the rules are incomprehensible to laypeople, consequently impacting access to justice and equality because understanding them requires hiring a lawyer. Further, the rules often appear illogical, lending them an air of illegitimacy.⁹⁰ Dufraimont concedes that principles also bring complexity – by acting as vague standards that lack the capacity to predict whether certain types of out-of-court statements qualify as hearsay – but she contends the cost is worth the benefit. Flexibility is tied to indeterminacy, and though judges may have to spend time and mental effort parsing the justifications underlying the principles in order to properly apply them, the reward is well-reasoned legal decisions. “If the principled approach prevents judges from thoughtlessly applying rules they do not understand, that is a good outcome, even if it comes at some cost in terms of predictability and procedural efficiency.”⁹¹

Dufraimont’s argument is convincing, but such a change would likely require the intervention of Parliament and legislatures, since the Supreme Court offers no indication it is ready to abandon the categorical exceptions. In R v Starr, the Court modified the exception of present intentions, adding the requirement that such statements be made in a natural manner and not under circumstances of suspicion. Justice Iacobucci, writing for the majority, noted that while the Court was divided on whether the modification had always been part of the exception, “the principled approach demands that it must have it now.”⁹² Dufraimont states that R v Starr raised expectations that the Court would go on to evaluate, revise, and perhaps jettison remaining exceptions, but the decision in R v Mapara showed the Court had other plans.⁹³ That case involved the co-conspirator exception, with its intricate set of rules that, unusually, requires the trier of fact to decide whether to admit the hearsay statement. Thus, in jury trials, laypeople must apply the complex rules to determine the admissibility of statements allegedly made in the furtherance of a common design.⁹⁴ The exception also applies in civil cases.⁹⁵ The Court kept the exception, reasoning that it was both necessary and reliable, and affirmed the four-part framework for the law of hearsay that remains in use today.⁹⁶

The exceptions create confusion and needlessly complicate the principled approach. Removing the exceptions may not lead to a speedier resolution of some civil cases, but by focusing on necessity and reliability, courts will come to well-reasoned decisions that clearly demonstrate why particular hearsay evidence is or is not admissible. Litigants gain understanding and respect for the justice system. Further, they receive protection from unfounded allegations. Allowing all hearsay presents too great a risk to the individuals involved. In the search for truth, there must be some limit to what is admitted; otherwise, rumour and innuendo may enter the court record and unfairly impact individuals’ lives, livelihoods and loved ones. An open door to hearsay also raises concerns throughout the civil trial process, with the potential that parties fail to marshal supporting evidence, triers of fact conduct less searching evaluations, and appeal courts lose the ability to conduct thorough reviews. The rule against hearsay should stay but in a modified form. The Supreme Court may be unprepared to change the hearsay framework for criminal trials, but in the civil context, Canada should allow hearsay that is necessary and reliable while abandoning categorical exceptions.

Endnotes