|
Evidence - Hearsay - Party Admission Exception. MJL Enterprises Inc. v. SAL Marketing Inc.
In MJL Enterprises Inc. v. SAL Marketing Inc. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a dismissal of a contract breach action.
Here the court considers the 'party admissions' (aka 'admissions by opposing party litigant') exception to the hearsay rule:[14] I also reject MJL’s argument that the trial judge erred by not admitting documents pursuant to the “party admissions” exception to the hearsay rule (also commonly referred to as the “admissions by opposing party litigant” exception). This issue emerged with respect to an omnibus compilation of documents that MJL had received on production through one of its witnesses that it wished to file as evidence (the “omnibus package”). An unknown number of these documents appear to have been generated by individuals linked to SMI in some way, so MJL argued in reliance on the Supreme Court of Canada decision in R. v. Schneider, 2022 SCC 34, 474 D.L.R. (4th) 1, that they were admissible pursuant to the party admissions exception.
[15] In its submissions during the admissibility voir dire, MJL focused solely on one of the documents, an email by Cathy Kawchuk, who MJL claimed was involved in software development, in which Ms. Kawchuk expressed the opinion that iSTAR had “limitless potential” (the “Kawchuk statement”). MJL argued that if this document is admissible under the party admissions exception, so too are the other documents in its omnibus package.
[16] Counsel for SMI objected to the admission of this evidence. It argued that the party admissions exception does not apply because Schneider is a criminal case, and during the colloquy the trial judge appeared to agree with this. She also expressed doubt that the statement was an “admission”, commenting, “where’s the party admission?” She permitted the documents to be filed as “narrative” without explaining what the admissible “narrative” use would be.
[17] It is true that the party admissions exception to the hearsay rule is rarely referenced in civil cases, as it was in Cambie Surgeries Corp. v. British Columbia (Attorney General), 2018 BCSC 514, aff’d 2022 BCCA 245, 87 B.C.L.R. (6th) 38, leave to appeal refused, [2022] S.C.C.A. No. 354, a case that was put before the trial judge. However, this exception “is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases”: R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at p. 664. The availability of this exception in both criminal and civil cases can be understood by examining the scope and rationale of the rule. It permits a party to litigation to prove any statement shown to have been made by the opposing party to be admitted for the truth of its contents, notwithstanding the hearsay rule: Schneider, at para. 52. Although this rule is referred to as the “party admissions” exception, the name of the exception can be misleading. It permits a party to prove any relevant statement that it can show was made by the opposing party, whether the opposing party knew at the time they were making that statement that it could help the opposing party litigant: Evans, at p. 668; Schneider, at para. 78. The rationale for this broad exception is simple. The hearsay rule exists because of the unfairness in a party advancing its case by relying on an out of court statement made by another person, who the opposing party cannot question to test the statement’s reliability and credibility. However, when it is the opposing party that has made the statement, they can hardly be heard to complain that they do not have the opportunity to cross-examine themselves. They are entirely equipped to make a tactical decision to testify and to put the statement in context, or to explain why it should not be relied upon if that is their position, or to even deny making the statement. As explained in Schneider, at para. 56, citing Evans, at p. 664, “what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements”. Since the hearsay mischief does not apply, some have expressed the view that statements made by opposing party litigants are not even hearsay: see Evans, at p. 664, per Sopinka J. However, this rule is more commonly referred to as a hearsay exception. Be that as it may, the underlying rationale for the rule applies as readily in civil cases as it does in criminal cases. Hence the availability of the exception in criminal and civil cases alike.
....
[19] As for the balance of the documents in the omnibus package, MJL failed to establish their admissibility. Absent an agreement by opposing counsel on admissibility, the party seeking to present evidence pursuant to the party admissions exception to the hearsay rule has the burden of demonstrating that the statement was made by the opposing party litigant: Evans, at p. 668. MJL did not do so. It simply bound documents received in production together and argued that all the documents could come in based on the arguments it made about the Kawchuk statement. This is not adequate. Moreover, to use the party admissions exception to admit statements made by persons other than the named opposing party litigant, the party tendering the evidence must establish that the person who made the statement was authorized by the opposing party litigant to speak about the issue: R. v. Strand Electric Ltd., 1968 CanLII 421 (ON CA), [1969] 1 O.R. 190 (C.A.). MJL did not do this, either. The trial judge did not err in excluding the omnibus package of documents as admissible hearsay. . Gandhi v. Mayfield Arcadeium Holdings Ltd.
In Gandhi v. Mayfield Arcadeium Holdings Ltd. (Div Court, 2024) the Divisional Court allows an appeal against an order that held a lien claim was invalid for lateness in issuing the "statement of claim to enforce the lien claim".
In these quotes the court considers the role of 'claim for lien' pleadings as evidentiary admissions:The Legal Issue
[26] The question before the motion judge was whether Mr. Gandhi commenced this litigation within 90 days of his last supply of services of the project. This is a question of fact to be determined on the evidence.
[27] Mr. Gandhi commenced this action on July 10, 2023.
[28] If the date of last supply was April 2, 2023, as set out in Mr. Gandhi’s Claim for Lien form, then he commenced this lawsuit nine days too late. If the date of last supply was April 11, 2023, as Mr. Gandhi affirmed in cross-examination and as supported by the WeChat screenshots, then the litigation was commenced just in time.
....
[29] The motion judge analyzed the issue as follows:[22] The contents of a claim for lien are a significant part of the statutory scheme; that document is not a mere pleading as argued by the Responding Party. Moreover, the contents of a claim for lien constitute an admission by the Responding Party under the law of evidence, an exception to the hearsay rule. In my view the testimony that they might have been mistaken are not convincing, despite other evidence given by Gandhi about relevant activity after April 2, 2023.
[23] In my view the claim for lien is to be taken at its face value in the case at bar. Powerful evidence, not present before me, will be necessary for the lien claimant to overcome the strength of assertions in his own claim for lien.
[24] Those assertions have consequences which determine the issue of which act applies and whether perfection was timely. [30] The motion judge held that because the Claim for Lien was an important document and an “admission” for the purposes of the law of evidence, powerful evidence is necessary for a lien claimant to overcome its contents.
....
Question of Law
[36] No law is cited for the proposition that a Claim for Lien form has special status as evidence in a lien proceeding.
[37] The fact that a statement in a document is an “admission” for the purposes of the law of evidence just means that it is admissible in evidence despite being hearsay. If a document is used to prove the truth of its contents, it is hearsay because it is a statement made out of court. Hearsay evidence is presumptively inadmissible unless there is an applicable exception to the exclusionary rule.
[38] Admissions are a recognized exception to the hearsay exclusion rule. Admissions are anything said, written, or done by a party tendered by the opposite party in evidence: Lederman, Bryant, and Fuerst, The Law of Evidence in Canada, Fourth Edition (Markham: LexisNexis Canada, 2014) at §6.417.
[39] The fact that a piece of evidence is an admission, i.e. a statement made by a party out of court, just makes it admissible as an exception to the hearsay rule. It has no greater significance.
[40] However, there is a recognized category of formal admissions made in pleadings, and formal documents in litigation can be subject to special rules to limit a party’s ability to withdraw that kind of admission. See, for example, Rule 51 of the Rules of Civil Procedure, RRO 1990, Reg 194. But as Lederman et al. note at §6.418,As in the case of all admissions, except those known as “judicial or formal admissions”, the party who made it may later lead evidence at trial to reveal the circumstances under which the admission was made in order to reduce its prejudicial effect. [41] The motion judge accepted that Mr. Gandhi’s Claim for Lien was not a pleading. Its contents, no doubt, are an admission by Mr. Gandhi. That means that they are provable against him in evidence for the truth of their content despite being a statement made out of court and therefore hearsay.
[42] But, absent a formal judicial admission and an applicable special standard, like Rule 51 of the Rules of Civil Procedure, the date in a Claim for Lien form has no special status requiring especially “powerful evidence” to rebut it. . R. v. N.G.
In R. v. N.G. (Ont CA, 2023) the Court of Appeal considered the evidentiary status of phone 'text messages', which bears of hearsay exceptions for both 'context' and 'admissions':[56] Where an accused person has engaged in a text conversation with another person, the statements by the accused are admissible as an exception to the hearsay rule. The statements by the other party to the conversation are generally admissible only as context − to understand what the accused person was saying − but not for the truth of their contents. But if it is apparent that the accused is adopting the other person’s statements, or the factual premises of them, as true, those statements can also be treated as an admission by the accused and therefore as admissible for their truth: David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013) 11 CJLT 181, at p. 213. . R. v. Schneider
In R. v. Schneider (SCC, 2022) the Supreme Court of Canada considers the 'party admission' exception to the hearsay rule:[52] The exception at issue in this case is a party admission. These include any “acts or words of a party offered as evidence against that party” (Paciocco, Paciocco and Stuesser, at p. 191 (emphasis added)). Although there has been debate as to whether party admissions are hearsay, I agree with the prevailing view set out by Charron J.: “. . . admissions from an accused fall within a well-recognized exception to the hearsay rule” (R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 75; see also Paciocco, Paciocco and Stuesser, at p. 192).
[53] In criminal trials, a party admission will be evidence that the Crown adduces against an accused. As explained in Evans, the common law justifies allowing party admissions into evidence on the basis that a party cannot “complain of the unreliability of his or her own statements” (Evans, at p. 664). Unlike many other exceptions, justification for allowing party admissions does not relate to necessity or reliability (Vauclair and Desjardins, at p. 911). This is one aspect in which party admissions do not conform to general rules.
[54] This was confirmed by Charron J. in Khelawon: “Some of the traditional exceptions stand on a different footing, such as admissions from parties . . . . [T]he criteria for admissibility are not established in the same way” (para. 65). See also Hart, at para. 63; Couture, at para. 75; S.G.T., at para. 20; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 82.
[55] Accordingly, party admissions are admissible without reference to necessity and reliability (R. v. Gordon Gray, 2021 QCCA 882, at paras. 27-28 (CanLII); R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 169 C.C.C. (3d) 489 (Ont. C.A.), at para. 37; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at para. 53; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at para. 81). Thus, with the exception of the “rare cas[e]” where judges retain discretion to exclude any hearsay evidence on the basis that it is unreliable or unnecessary (Mapara, at para. 15), reliability and necessity are not relevant to the admissibility of a party admission.
[56] I digress briefly to underline a point. The party admission exception to the hearsay rule should not be confused with other exceptions that bear some similarity, for example a declaration against interest by a non-party. See Lo, at paras. 65-66; Paciocco, Paciocco and Stuesser at p. 192. Party admissions include “acts or words of a party offered as evidence against that party” (Paciocco, Paciocco and Stuesser, at p. 191 (emphasis added)). In contrast, declarations against interest are not adduced against the person who made the statement, as that person is not party to the litigation. Party admissions and declarations against interest have unique foundations. Courts began to permit the admission of declarations against interest on the presumption that “people do not readily make statements that admit facts contrary to their interests, unless those statements are true” (Paciocco, Paciocco and Stuesser, at p. 208). As stated earlier, courts allow party admissions on the basis that “what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements” (Evans, at p. 664). The unique foundation of each leads to different preconditions for admission.
[57] In this appeal the party admission was something the accused said, that the witness overheard, and that the Crown tendered as evidence of the accused’s guilt (Evans, at p. 664; Paciocco, Paciocco and Stuesser, at pp. 191-92). However, party admissions can constitute more than words; the common law has held party admissions to include, inter alia, silence, actions, and demeanour (see, e.g., R. v. Scott, 2013 MBCA 7, 288 Man. R. (2d) 188; see also Lederman, Fuerst and Stewart, at ¶¶6.470-6.512; Vauclair and Desjardins, at p. 911). As noted by Professor I. Younger, a rule of thumb is that “[a]nything the other side ever said or did will be admissible so long as it has something to do with the case” (An Irreverent Introduction to Hearsay (1977), at p. 24, cited in Paciocco, Paciocco and Stuesser, at pp. 191-92). I do not seek to describe here the precise boundaries of party admissions, as that is not at issue.
|
