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Evidence - Hearsay - Past Recollection Recorded Exception. Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333)
In Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) (Fed CA, 2026) the Federal Court of Appeal considered seven appeals, all relating to "a dispute between the parties that dates from 2017 when Grain Workers’ Union Local 333 ILWU (the Union) filed two policy grievances alleging violation by Viterra Canada Inc. (Viterra) of the maximum work hours provisions of the Canada Labour Code".
Here the court considered the evidentiary principles of 'past recollection recorded' (a hearsay exception), and 'refreshing memory':[120] The Federal Court admitted the Diaries of Mr. McFeeters and Ms. Kerr on the basis of the "“past recollection recorded”" exception to the hearsay rule:[48] Under this exception to the hearsay rule, a witness who does not recall relevant events may testify to having recorded those events, and the record created then admitted as evidence where the following criteria are satisfied:1. The past recollection was recorded in some reliable way;
2. At the time, the event was sufficiently fresh and vivid to be probably accurate;
3. The witness is able now to assert that the record accurately represented their knowledge and recollection at the time. The usual phrase requires the witness to affirm that they "“knew it to be true at the time”"; and
4. The original record itself is used, if it is procurable (R v Fliss, 2002 SCC 16 at para 63, citing Wigmore on Evidence (Chadbourn rev 1970), vol 3, c 28, s 744 et seq). ....
(1) Past recollection recorded
[123] Viterra submits that the Union did not follow the procedure required to establish a permanent lapse of memory by failing to walk Mr. McFeeters and Ms. Kerr through each event recorded in their respective Diary to confirm whether the witness remembered the entry: C.(J.) v. College of Physicians & Surgeons (British Columbia), [1990] B.C.J. No. 159, 1990 Carswell BC 7 (C.(J.)). According to Viterra, the result of this failure was an insufficient evidentiary record on which the Federal Court could determine whether the evidence from the Diaries was admissible on the basis of past recollection recorded or present memory revived.
[124] The Federal Court’s finding of a permanent lapse of memory was specific to the central question in issue. I agree with the Federal Court that the critical recollection of Mr. McFeeters and Ms. Kerr was the number of hours worked on a specific day and that the test for past recollection recorded does not require a loss of memory of all of the events or information recorded: R. v. Sipes, 2012 BCSC 834 at para. 21. Here, for example, Ms. Kerr stated that she could remember working on specific dates but could not remember the hours worked on any of the dates during the recorded period without referring to her Diary. The hours worked was the "“event”" that the Union sought to establish via the Diaries; the days worked was not. Indeed, the parties have been embroiled in a dispute since 2017 on the singular issue of number of hours worked by employees per week. The evidence set out in the Second Admissibility Order provides ample support for the Federal Court’s conclusion that neither Mr. McFeeters nor Ms. Kerr had any recollection of the hours worked on a specific date.
[125] The Federal Court stated that the fact the Union did not take the witnesses to each Diary entry did not preclude a finding of past memory recorded. I agree despite Viterra’s insistence that this omission was fatal to admission of the Diaries.
[126] In C.(J.), there were 10 serious incidents of alleged misconduct by a doctor before a committee of inquiry of the provincial College of Physicians and Surgeons. The witness had a present memory of a number of the critical events about which she testified: C.(J.) at para. 37. In this case, however, neither Mr. McFeeters nor Ms. Kerr had any recollection of the hours worked each day. The BCCA stated that the committee "“could have”" gone through each of the alleged incidents to establish whether the complainant had a present recollection of the incident (C.(J.) at para. 28) but, in my reading of the decision, the BCCA did not mandate a process to be used in every case. I find that the Federal Court properly distinguished C.(J.). on the facts of the case before it.
[127] The Federal Court reviewed the viva voce evidence of Mr. McFeeters and Ms. Kerr in response to specific questions from the Union as to whether they could remember, without reference to the particular Diary entry, the number of hours worked on a specific date. Each witness responded that they could not remember hours worked on any of the dates recorded. I acknowledge that the evidence given was not specific to each date but find no palpable and overriding error in the Federal Court’s reliance on that evidence as sufficient to establish a permanent lapse of memory for the relevant period.
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(2) The third Fliss criterion
[128] The third Fliss criterion requires that:[63] […]
3. The witness is able now to assert that the record accurately represented their knowledge and recollection at the time. The usual phrase requires the witness to affirm that they “knew it to be true at the time”. [129] The question before this Court is whether the Federal Court made a palpable and overriding error in inferring that the third Fliss criterion was met.
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[133] The issue before the Supreme Court in Fliss was the admissibility of an officer’s viva voce evidence of the confession the accused made to the officer. The confession was recorded with prior judicial authorization and a 50-page transcript prepared the following day. The transcript itself was declared inadmissible at trial. The Supreme Court noted that the officer’s testimony covered 34 pages of the single-spaced transcript and went well beyond his recollection of the confession at the trial. Justice Binnie found that the officer’s testimony did not qualify for admission as past recollection recorded because the third Wigmore (now Fliss) requirement was not met. The officer read the lengthy transcript the day following the confession and would have had a good recollection of it but "“the appellant was entitled to hear him swear to it”", although no particular form of words is required: Fliss at para. 64.
[134] The Federal Court relied on the decision in R. v. Pilarinos, 2002 BCSC 798 (Pilarinos) to infer the accuracy of the Diary entries. The Pilarinos decision followed 14 voir dires for the admission of statements overheard and transcribed by police officers. The B.C. Supreme Court (BCSC) stated, at paragraph 21, that there are circumstances in which the third Fliss criterion can be inferred but emphasized that the circumstances must make clear the accuracy of the recorded recollection. The BCSC in Pilarinos admitted one statement as meeting the Fliss criteria for past recollection recorded, stating:[46] […] The officer recorded his notes immediately after he overheard them. Although the officer did not specifically say that these notes accurately represented his knowledge and recollection at the time, he did say that he tried to set out the conversation in the order that he overheard it and he believed he had done the best he could. In Fliss, supra, Binnie J. said that no specific words had to be spoken in order to meet the Wigmore test. I am satisfied from the circumstances of the note-taking in this case that his notes reflected in his appendix accurately represent his recollection at the time. It is the original record. It was made in a reliable way and at a time when it would be sufficiently fresh and vivid to be probably accurate. Any other faults with respect to the note-taking are a matter of weight. . R v Louangrath
In R v Louangrath (Ont CA, 2016) the Court of Appeal discussed the 'past recollection recorded' exception to the hearsay rule:[42] Meeting the requirements of the well-established past recollection recorded hearsay exception will generally be conclusive on the admissibility of the tendered evidence, without any further consideration of threshold reliability. That is because its essential conditions and the declarant’s availability for cross-examination address the hearsay concerns on reliability.
[43] The essential conditions for the past recollection recorded exception were set out in R. v. Richardson (2004), 2003 CanLII 3896 (ON CA), 174 O.A.C. 390 (C.A.), by O’Connor A.C.J.O., at para. 24, as follows:1. Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.
2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness's mind to be vivid and likely accurate.
3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
4. Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded. [44] Three of these conditions are grounded in establishing threshold reliability – namely, the ‘reliable record’, ‘timeliness’, and ‘present voucher as to accuracy’ conditions – while the ‘absence of memory’ condition addresses the necessity of using the hearsay evidence. Significantly, for the admission of this type of hearsay evidence, the declarant is able to be tested under oath through cross-examination about the circumstances under which the recorded statement was made, and on the basis upon which he or she vouches that the recording of events is accurate.
[45] Though not equivalent to contemporaneous cross-examination of present recollections, meeting those conditions, together with the declarant’s ability to testify about them, assuage the hearsay reliability concerns such that, when necessary, this evidence should be admitted. The trial judge should then instruct the jury that this is a lower form of evidence that calls for extra scrutiny.
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