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Small Claims Court - Documentary Disclosure [R18.02]. Elnasr v. Mostafa
In Elnasr v. Mostafa (Div Ct, 2022) the Divisional Court considered the particular evidence rules applicable under the Small Claims Rules:[44] The Appellants acknowledge that these provisions permit the admission of hearsay evidence (see Fakhoury v. Gurguis, 2013 CanLII 54527 (ON SCSM), at paras. 4-5). However, they submit that the requirements of the Rule 18.02 were not met and that it was an error in law for the Deputy Judge to admit the bank document, particularly in light of how the document was obtained. I agree.
[45] The document that was tendered as a copy of a financial document to purportedly confirm the existence of a certificate account at The National Bank of Egypt, that this certificate account was in Ms. Mostafa’s name, the date that the certificate was issued (August 1, 2017), the amount (150,000 Egyptian pounds), the interest rate (15% annually), the term (5 years), and maturity date. The document was written in Arabic and an English translation was filed.
[46] Rule 18.02 can apply to financial documents. However, from a review of the Exhibit 2, it does not appear that Rule 18.2(3) [SS: should be R18.02(3)] was complied with. There was no statement of the name, telephone number, and address for service of the witness/author of the document. Therefore, I cannot conclude that the Appellants were provided with the necessary information to summons a witness for cross-examination on the document.
[47] Even if the name of the witness had been provided, consideration would also have to be given as to the ability of the Appellants to secure the witness’ attendance for cross-examination. The costs associated with compelling a witness from Egypt may have been prohibitive or disproportionate (see Fakhoury, para. 7). The ability or inability of the Appellants to cross-examine the necessary witness should have been considered when determining whether the document should have been admitted (see MBK Services v. PowerForward Inc., 2013 ONSC 4506, at paras. 32-34). From the Reasons, I cannot determine if consideration was given to this issue.
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