CHAPTER 3

EVIDENCE

 

3.3 Admissibility of Evidence

3.3.6 Hearsay

Hearsay is testimony or written evidence in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matter asserted therein, and thus relying for its value on the credibility of the out-of-court assertion.^{455 Citation 455} Hearsay is commonly understood as "a statement of a fact made by a person who did not personally witness the fact, but was told about it by someone else".^{456 Citation 456}

It is evidence given by a person but based on something that person heard another person (who either saw or heard the event) say. It includes facts or events based on a report or record the person read or a television program he or she watched. Hearsay evidence given to a tribunal is indirect evidence; the person who is giving it is conveying what direct witnesses of the event have said.

Since administrative tribunals are in charge of evidentiary matters, they may allow any evidence, even if it is indirect. As a general rule, hearsay evidence is admissible before quasi-judicial tribunals provided they comply with the rules of natural justice. As Lord Denning has said: "Hearsay is clearly admissible before a tribunal. No doubt in admitting it, the tribunal must observe the rules of natural justice."^{457 Citation 457}

Based on this rule, courts have overruled objections to the admission of hearsay evidence.^{458 Citation 458} Tribunals are in charge of evidence, and courts should only review the manner in which they deal with it if they have run afoul of the rules of natural justice.^{459 Citation 459} Thus, tribunals must give a person who is challenging the evidence all the necessary opportunity to be heard and speak out against it.^{460 Citation 460}

The admission of hearsay may be looked upon from a variety of perspectives. Some tend to associate it with cross-examination and hold that the natural justice is violated if cross-examination on hearsay evidence is not permitted: "Even though that evidence may well have been admissible we are all of the view that the employee did not receive a fair hearing in the circumstances. His counsel had no real opportunity to cross-examine on the evidence that was presented."^{461 Citation 461}

Others believe that cross-examination is not necessary, and that the party need only have the opportunity to contradict the evidence in some way: ". . . the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it."^{462 Citation 462}

Thus, hearsay evidence is allowed in administrative law, but tribunals must ensure the opposing party has a fair opportunity to address that evidence, though not necessarily through cross-examination.

There is no problem securing the admission of hearsay admitted in proceedings before the Board of Referees,^{463 Citation 463} but if it is the only evidence or the main evidence, the board would be well advised to state why it is satisfied by it.^{464 Citation 464} The board must [Translation] "assess the probative value of such evidence in light of all the evidence".^{465 Citation 465} The question of its weight will be discussed later.

 

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