Hearsay evidence

How BC law treats it

The hearsay rule is mainly common law. A statement made outside court and offered to prove its contents is presumptively inadmissible because the other side cannot test it by cross-examination. Courts admit hearsay under traditional exceptions, such as admissions by a party, declarations against interest and statements in the course of duty, or under the principled approach developed in R v Khan, [1990] 2 SCR 531 and R v Khelawon, 2006 SCC 57. That approach asks whether the evidence is necessary and has enough threshold reliability, either because of how it was made or because its truth can be tested. R v Bradshaw, 2017 SCC 35 clarified how corroborating evidence fits into that analysis. Statutes add specific routes. The BC Evidence Act, RSBC 1996, c 124 allows business records made in the usual and ordinary course of business to be admitted on proper foundation. In commercial cases, emails, invoices and accounting records are often admitted this way. Under the Supreme Court Civil Rules, BC Reg 168/2009, Rule 22-2(12), an affidavit must generally state only what the witness would be permitted to say in evidence at trial, which means facts within personal knowledge. Rule 22-2(13) allows statements of information and belief, with the source given, only on an application that does not seek a final order. A summary trial under Rule 9-7 seeks a final order, so information and belief evidence is generally not permitted there. Such evidence also carries less weight.

What it means for your business

In commercial litigation, much of the evidence is documents and conversations. A business that cannot call the person who wrote an email or heard a statement may find key evidence excluded or given little weight. Keeping reliable records in the ordinary course of business, documenting important conversations promptly and identifying the right witnesses early all make evidence easier to prove. Statements by the opposing party are usually admissible against it, so careless emails can become strong evidence. Example: In a BC Supreme Court payment dispute, a supplier wants to prove a delivery using a driver's note but the driver has left the company. The supplier relies on its delivery records kept in the ordinary course of business, supported by an affidavit from its operations manager explaining how those records are made.

Risks and common mistakes

Filing a trial affidavit that repeats what other people said instead of facts within the witness's knowledge. Assuming every business email is automatically admissible for the truth of its contents. Forgetting that admissions by the opposing party are an exception and can be used against them. Failing to name the source of information and belief in an interim application affidavit, or using such evidence on a summary trial. Waiting until trial to find the witnesses who can prove key documents and conversations.