Hearsay evidence is evidence that is given by a witness, of which the witness does not have direct knowledge, in order to prove the truth of the matter asserted.

 

 

 

Generally speaking, hearsay evidence is inadmissible at trial, unless the hearsay evidence can fall within an exception to the general rule against hearsay. Such exceptions must still conform to the principles of necessity and reliability. If the evidence is admissible under an exception to the hearsay rule, the judge may still refuse to admit it if its prejudicial effect outweighs its probative value. Further, where evidence is inadmissible under an exception to the hearsay rule, the judge may admit it nonetheless, provided that necessity and reliability are established.

 

 

 

 

In Nerval v Khehra, the Plaintiff made a statement to the police after the accident. At trial, the Plaintiff testified as to how the accident occurred, and also wished to introduce the statement she had made to the police. ICBC’S lawyer objected to the admission of the statement, and the Court agreed, ruling it to inadmissible.

 

 

 

[47]        Ms. Nerval applied to tender her statement to Cst. Baskin because she could not recall the events surrounding the collisions. A voir dire was held. Cst. Baskin reported that Ms. Nerval had told him that she was making a left-hand turn to go westbound on Sandpiper. At the time there was a van facing southbound indicating a left turn and an intention to go eastbound on Sandpiper. She said she did not see any other motor vehicle coming towards her. She did not remember if she had her signal light on; there was no mention of a signal light in his notes. Ms. Nerval told him that the other van had its signal on. That is the totality of his conversation with Ms. Nerval.

 

 

 

[48]        The defence opposed the admission of this statement into evidence on the basis that it fails to meet the requirement of necessity. The defence argues that to be admissible the statement must be used to rebut an allegation of recent fabrication, be a prior inconsistent statement, or be a statement contemporaneous with an event reported in the statement.

 

 

 

[49]        I conclude that the statement is not admissible. The circumstances under which the statement was taken do not reflect that it was taken contemporaneously with the event. The evidence did not support the suggestion that it was a contemporaneous report. There was no suggestion that the statement was inconsistent with the evidence given by Ms. Nerval at the trial and no suggestion that the there was an allegation of recent fabrication of evidence.

 

 

 

[50]        If I am wrong in my conclusions regarding the admissibility of the statement, I would otherwise have concluded that the statement did not contain any information that materially augmented the evidence of Ms. Nerval at trial.

In Mazur v. Lucas, the British Columbia Court of Appeal discussed the area of law with respect to hearsay evidence in expert reports. At trial, the Plaintiff had entered a psychiatrist’s report into evidence. The trial judge ruled that certain hearsay portions (where the author of the report mentions and relies on documentation of other doctors) be redacted, and that ICBC’S lawyer would not be allowed to cross-examine the psychiatrist based on the redacted portions. The lawyer for ICBC appealed, and a new trial was ordered.

 

[40]           From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:

 

•                    An expert witness may rely on a variety of sources and resources in opining on the question posed to him.  These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others – this list is not exhaustive.  (See Bryant, The Law of Evidence in Canada, at 834-835)

 

•                    An expert may rely on hearsay.  One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report.  Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.

 

•                    The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence.  The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence.  Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.

 

•                    The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.

 

[41]           The common law is supplemented by the Rules of Court concerning expert reports.  The Rules of Court in force at the time of this trial required an expert to state “the facts and assumptions upon which the opinion is based”.  (Rule 40A(5)(b)).  Rule 11-6(1) which replaces Rule 40A requires the expert to state:

 

…

 

(f) the expert’s reasons for his or her opinion, including

(i)  a description of the factual assumptions on which the opinion is based,

(ii)  a description of any research conducted by the expert that led him or her to form the opinion, and

(iii)  a list of every document, if any, relied on by the expert in forming the opinion.

 

[42]           New Rule 11-6 expands on what an expert was required to state under old Rule 40A, but does not alter the general principle that it is essential for the trier of fact to know the basis of an expert opinion so that the opinion can be evaluated.  The Rule has a dual purpose.  The second purpose is to allow the opposing party to know the basis of the expert’s opinion so that they or their counsel can properly prepare for, and conduct, cross-examination of the expert, and if appropriate, secure a responsive expert opinion.  Thus, the result of these reasons would be the same if this case had arisen under the new Rules.  There is nothing in these Rules touching directly on the question of the admissibility of hearsay evidence in expert reports.

 

[43]           It follows from this discussion that I conclude the trial judge erred in her twin rulings to redact the expert reports and confine defence counsel’s cross-examination.  The trial judge should have permitted defence counsel to fully cross-examine Dr. O’Shaughnessy on his review of the reports of Drs. Solomon and Gibson.  Regrettably the authorities cited here were not cited to the trial judge.

 

[44]           In summary, the hearsay referred to by Dr. O’Shaughnessy in his report was admissible, for the limited purpose of evaluating his opinion, not as proof of its facts.  The references in his (and the other expert reports) should not have been redacted.  Cross-examination on the use the expert made of the hearsay evidence should have been allowed.  This cross-examination might have revealed some inconsistency in the doctor’s report, or some weakness in his analysis. 

 

In Jones v Ma, the Plaintiff recorded an admission of fault on her cell phone by the Defendant after a motor vehicle accident. At trial, the Defendant tried to argue he was not at fault,  however the Plaintiff intended to use the cell phone recording. ICBC’S lawyer opposed the admission of the recording, arguing it was hearsay. The Court allowed the introduction of the cell phone recording, stating that it met the “admission against interest” exception to the hearsay rule.

 

[5]               Counsel for the defendant submits that the conversation is hearsay and should not be admitted in evidence.

 

[6]               Counsel for the plaintiff submits that the statements of the defendant Ma are admissions by a party, and are therefore either not hearsay or are admissible as a traditional common law exception to the hearsay rule.

 

[7]               In response, counsel for the defendant submits that all the traditional exceptions to the hearsay rule are now subject to a reliability/necessity analysis under the principled approach to hearsay set out by the Supreme Court of Canada in R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144. Counsel for the defendant relies on the decision of this court in Pasko v. Pasko, 2002 BCSC 435 (CanLII), 2002 BCSC 435.

 

[8]               With respect, I do not find the Pasko decision helpful on this point, as it dealt with a very different question of the admissibility of a statement made by a person who was deceased at the time of trial. It did not deal with the issue before me, namely the admissibility of an out-of-court admission by a party to a lawsuit.

 

[9]                That issue was specifically addressed by the Ontario Court of Appeal in R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.). In that case Doherty J.A., delivering the judgment of the Court, said at pages 215 to 216:

 

Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis. As Sopinka J. explained in R. v. Evans [1993] 3 S.C.R. 653, at page 664:

 

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.  [Emphasis in original].

 

[10]            I agree with that statement of the law. It was adopted by our Court of Appeal in R. v. Terrico, 2005 BCCA 361. Admissions made by one party to litigation are generally admissible if tendered by the opposing party, without resort to any necessity/reliability analysis.

 

[11]            The evidence tendered by the plaintiff in this case of her conversation with the defendant Ma at the scene of the accident is admissible in evidence.

 

[13]           The fact that the defendant did not understand at the time of the conversation that what she said might be used in litigation is not a basis for excluding the evidence. This is a civil case. Unlike a criminal case, there is no issue here about voluntariness of a statement to a person in authority and no issue about compliance with the requirements of the Canadian Charter of Rights and Freedoms. Counsel for the defendant agrees that the plaintiff was not a person in authority and that she was not a state agent, as those terms are used in the context of confessions in criminal cases.

 

[14]          The defendant’s concern that only part of the conversation was recorded, that the defendant had hurt her head, that the defendant did not know the use to which the recording would be put, and that the statement might therefore not be reliable, are matters that can be explored in cross-examination and may go to the weight to be attached to this evidence. They do not form a basis for the exclusion of the evidence.