CHAPTER 3

EVIDENCE

 

3.7 Weight or Probative Value

3.7.1 The Weight To Be Given to Writings or Documentary Evidence

Authentic acts issued by a public officer make proof of their contents.^{522 Citation 522} This applies only to facts the public officer had the task of establishing or recording. Even if court judgments can be considered authentic acts, they do not necessarily prove the facts the judge recites based on the testimony made. Improbation proceedings must be instituted in a superior court to contest the validity or content of an authentic act; thus, such acts are not contested before administrative tribunals.

Private writing setting forth a juridical act and bearing the signature of the parties may be a valid contract. A person who appears to have signed an act, and against whom the act is set up, is deemed to admit to it unless he or she challenges it by way of an affidavit. Private writing (e.g., a contract) may be set up against a third party whom it legally affects, but the third party may contest the truth or accuracy of the statements made therein and employ any type of evidence to do so. That person may show, through testimony, that there was a physical forgery or that the writing otherwise does not accurately reflect reality. For example, the Commission may wish to contest a contract or agreement between an employer and an employee about the termination of an employment.

In Quebec, the traditional rule has been that written testimony and hearsay are not admissible in civil proceedings. It is not considered acceptable for a person to describe in a document the events he or she observed and then have that document tendered in court as a form of testimony, even if an affidavit is attached. In fact, art. 2843 C.C.Q. still requires that facts be proved by testimony and that testimony pertain only to "facts of which [the witness] has personal knowledge." In contrast, in administrative law, tribunals are free to attribute probative value to a writing that relates a fact, subject to the requirements of natural justice. They must ensure the other party has a fair opportunity to defend himself or herself having regard to the circumstances.^{523 Citation 523}

Writings generally have the probative force of an out-of-court admission against those who made them. They may be equivalent to testimony if the facts related therein are ambiguous, equivocal or incomplete.

Personal or domestic papers or writings may be used against those who prepared them, but their probative force is equivalent to that of mere testimony.^{524 Citation 524} According to some decisions, the notes taken by an official during an interview with a claimant have little probative value unless they are signed by the person interviewed.^{525 Citation 525} However, the practice of obtaining such a signature does not appear to be widespread; it is felt that it makes people uncomfortable. These unsigned notes, such as an investigation report, are hearsay that can be contradicted by direct evidence. Business documents, company records and payroll records are admissible and often memorialize a juridical act, make proof of their contents as against those who prepared them and even in favour of those who drafted them. Such writings may be contested by any means: it is up to the court or tribunal to assess the evidence as a whole.

The original versions of writings or documents must generally be tendered except if they are printed (as with reports).^{526 Citation 526} The original, signed versions of affidavits must be produced.^{527 Citation 527}

The Canada Evidence Act contains some 15 sections on documentary evidence. Those provisions are considered additions to, not derogation from, the powers granted in other legislation (statutory or otherwise) respecting the proof of documents. In other words, they add to the common law or droit commun. Section 28 Section 28 of the Canada Evidence Act is one of the noteworthy provisions. It requires that reasonable notice be given of the tendering into evidence of a public document or notarized act. A copy of an entry in the book or record of a financial institution, made in the usual and ordinary course of business, is admissible upon affirmation or affidavit by a manager or accountant of the financial institution. In addition, where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence. The party producing the record must, at least seven days in advance, give notice to each other party to the legal proceeding of his or her intention to produce it and must, within five days after receiving any notice in that behalf given by any such party, produce it for inspection by that party.

In administrative law the best evidence rule which is even more restrictively applied in civil matters is inapplicable. This best evidence rule aims at preventing the litigant from establishing through secondary evidence the content of a written statement.^{528 Citation 528} In administrative law, the tribunal is free to accept and admit such proof based on the balance of probabilities.

 

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