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Evidentiary Relevance: Contribution to Proving Whether a Disputed Fact Is True or False
Question: What evidence is considered relevant and admissible in Ontario civil litigation and Small Claims Court?
Answer: In Ontario civil litigation, evidence is generally relevant (and potentially admissible) if it has a logical connection to a fact in issue and can make that fact more or less likely, and relevance also drives what documents must be disclosed on discovery under Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the court’s admissibility rules, subject to limits like privilege. In Small Claims Court, the judge may admit relevant oral testimony and documents even if they wouldn’t be admissible elsewhere under Courts of Justice Act, R.S.O. 1990, c. C.43, and parties must generally serve the documents they intend to rely on at trial under Rules of the Small Claims Court, O. Reg. 258/98, so Olson Craig Legal can help you identify what evidence to gather, disclose, and present through its Ontario Lawyer & Paralegals services.
Determining What Evidence Is Relevant
Determining the relevancy and admissibility of evidence, either in the form of testimony or documents, in civil litigation requires an analysis of whether the evidence has a logical connection to the facts and issues in dispute. Determining the relevance of evidence is also necessary to determining whether a document is discoverable and must be disclosed in the course of the litigation.
The Law
The Rules of Civil Procedure, R.R.O. 1990, Regulation 194, the Rules of the Small Claims Court, O. Reg. 258/98, and the common law including the case of Algarawi v. Berger; and Porter v. Sutandar, 2023 ONSC 2339, all relate and come into play in assisting with the determination of whether evidence is relevant to litigation. Specifically, these laws state:
Written Statements, Documents and Records
18.02 (1) A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise.
(2) Subrule (1) applies to the following written statements and documents:
1. The signed written statement of any witness, including the written report of an expert, to the extent that the statement relates to facts and opinions to which the witness would be permitted to testify in person.
2. Any other document, including but not limited to a hospital record or medical report made in the course of care and treatment, a financial record, a receipt, a bill, documentary evidence of loss of income or property damage, and a repair estimate.
[18] To be received at trial, evidence must be admissible, and the trial judge must not have exercised her discretion to exclude the evidence. To be admissible, evidence must be relevant and not subject to exclusion under any other rules of law or policy (for example, because of privilege).
[19] For evidence to be relevant, it must have some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely or less likely than the proposition would be in the absence of the evidence.[10] This is not a high bar.
[20] Determining relevance is an exercise in the application of experience and common sense.[11] Justice Doherty put it this way:
Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the existence of "Fact A" makes the existence or non-existence of "Fact B" more probable than it would be without the existence of "Fact A". If it does then "Fact A" is relevant to "Fact B". As long as "Fact B" is itself a material fact in issue or is relevant to a material fact in issue in the litigation then "Fact A" is relevant and prima facie admissible.[12]
[21] Relevance on discovery is determined by the pleadings. If even one part of a document is relevant, it must be produced.[13] Every document relevant to any matter in issue in an action that is or has been in the possession, power, or control of a party to the action shall be disclosed.[14] A document may be produced for discovery because it is relevant notwithstanding that it may not be admissible at trial.[15] A person examined for discovery shall answer any proper question relevant to any matter in issue in the proceeding.[16]
Court Cases
Interestingly, and unlike cases in the higher court, for matters in the Small Claims Court hearsay evidence is permissible per section 27 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which states:
Evidence
27 (1) Subject to subsections (3) and (4), the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious.
Same
(2) Subsection (1) applies whether or not the evidence is given or proven under oath or affirmation or admissible as evidence in any other court.
Same
(3) Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible by reason of any privilege under the law of evidence; or
(b) that is inadmissible by any Act.
Conflicts
(4) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.
Copies
(5) A copy of a document or any other thing may be admitted as evidence at a hearing if the presiding judge is satisfied as to its authenticity.
Furthermore, and also unlike the evidence rules within the higher court, the Rules of the Small Claims Court are without a requirement to disclose all relevant evidence and instead require only the disclosure of evidence that may be relied upon at Trial. Specifically, the Rules of the Small Claims Court state:
Disclosure
13.03 (2) At least 14 days before the date of the settlement conference, each party shall serve on every other party and file with the court,
(a) a copy of any document to be relied on at the trial, including an expert report, not attached to the party’s claim or defence ...
Additionally, the Rules of the Small Claims Court are without a rule about whether an Order for production or inspection of potentially relevant evidence may be sought; and accordingly, for the answer to this question, careful review of the express Small Claims Court disclosure rules and previous case decisions becomes necessary.
Conclusion
Relevancy of evidence is determined by whether the evidence has a rational potential to prove or disprove a disputed fact. If the evidence is deemed relevant, then the evidence may be admitted in court, depending upon other applicable rules of admissibility.
NOTE: A significant number of online searches for “lawyers near me” or “best lawyer in” typically highlight a desire for prompt and effective legal support rather than a particular title. In Ontario, “licensed paralegals” are supervised by the same Law Society that governs lawyers and are permitted to represent clients in specific litigation issues. Skills such as advocacy, legal analysis, and procedural expertise are fundamental to this position. Olson Craig Legal provides legal representation within its licensed framework, focusing on strategic positioning, evidentiary preparation, and persuasive advocacy designed to secure efficient and advantageous outcomes for clients.