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Evidence - Privates Notes at a Hearing. Davidson v. Canada (Attorney General)
In Davidson v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered the interesting issue of when notes, taken by the party and his wife, were admissible on whether he was treated with procedural unfairness at the tribunal below:[18] Further on the question of evidence, in support of his application before this Court, Mr. Davidson filed his affidavit attaching as an exhibit a copy of the notes taken by his wife and him during the two-day hearing before the Board. He relied heavily on these notes while advancing his written and oral submissions. Counsel for the respondent did not object to the filing of these notes and did not object to Mr. Davidson referencing them in his written materials or during his oral submissions.
[19] While it is unfortunate that a transcript of this hearing is not available and while it is understandable that Mr. Davidson wishes to offer the best evidence he can regarding the oral testimony provided during the hearing before the Board, nonetheless, this Court may not rely on notes taken by the applicant or his wife. Unlike certain tribunals, such as in the context of citizenship and immigration matters where the recording of proceedings is routine, hearings before the Board are not recorded.
[20] In my view, the notes taken during the hearing cannot be described as new evidence, and therefore, I need not be concerned with their admissibility under the exceptions to the admissibility of new evidence set out in paragraph 20 of this Court’s decision in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright) 2012 FCA 22, 428 N.R. 297.
[21] Further, the notes from Mr. Davidson’s spouse are being used to challenge findings of fact and invite this Court to re-hear and re-weigh the evidence in order for us to arrive at our own conclusions as to the merits. That is not our role. We must therefore disregard these notes. . Moore v. The Estate of Lou Ferro et al
In Moore v. The Estate of Lou Ferro et al (Div Ct, 2022) the Divisional Court considered the admissibility of private notes made at a hearing (they were not admitted):[62] More specifically, with respect to the introduction of evidence of an attendee’s notes of a proceeding, in 142445 Ontario Limited (Utilities Kingston) v. The International Brotherhood of Electrical Workers (2009), 2009 CanLII 24643 (ON SCDC), 251 O.A.C. 62 (Div. Ct.), Swinton J. stated the following, at paras. 32 and 33:If extensive affidavits can be filed on applications for judicial review in order to permit parties to challenge findings of fact before such tribunals, there would be a significant incentive for parties to seek judicial review since they would then attempt to reframe the evidence that was before the arbitrator. As a result, the process of judicial review is likely to be more prolonged and more costly.
Moreover, there may be real difficulties in trying to recreate the evidence before the tribunal, where the parties have conflicting views as to what has been said. Where there is a dispute about the evidence, the reviewing court will be put in the unfortunate position of trying to determine what the evidence was before the tribunal in order that it can decide whether the decision was unreasonable. Such a process is unfair to the administrative tribunal and undermines its role as a fact finder in a specialized area of expertise. [63] In effect, Mr. Moore is attempting to present as fresh evidence notes taken by an observer of the HRTO proceedings. That is not a proper circumstance for the court to admit fresh evidence. For that reason, it was not permitted.
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