Rules of Evidence for Small Claims Court (2008)
Here are some helpful hints on the rules of evidence in Small Claims Court. Evidence as a subject matter may not be a flashy topic but evidence is the backbone of any trial. You can have the most wonderful claim on earth but if you cannot prove it with documentary or oral evidence, you will not succeed.
The starting point for any discussion about evidence in Small Claims Court is section 27 of the Court of Justice Act, Ontario. That section states firstly that with certain exceptions, the Small Claims Court may “admit into 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”.
The evidence must be relevant and non-repetitious.
Whenever you are trying to decide upon the relevance of a document or oral testimony, ask yourself several questions. Firstly, what is the point of this evidence? What does this document or witness say? How does this evidence relate to the subject matter? How does it support the theory of my case?
In my view, relevant documentary evidence can be more persuasive than oral testimony about the subject matter. If the document makes the point, then you don’t necessarily need the author of the document to say the same thing.
Determining whether your various pieces of evidence including oral testimony is repetitious, is a little easier. A guiding principle would be that if a document or a witness makes the point, don’t clutter up the proceeding with additional evidence that says the same thing. The court is not more persuaded because you have three witnesses when one will suffice.
Let me now address a few practical tips about handling documentary evidence at trials.
If you intend to rely upon more than a few documents at trial or you have a few documents with multiple pages, I strongly suggest binding the documents in a spiral-bound book, placing them in the order in which you intend to rely upon them at trial or in chronological order. Like a storybook with chapters, your document book will help the judge understand the story and the order in which it occurred. Make sure to use tabs and number each page in the top right hand corner. This will assist the judge and/or witness in turning immediately to a particular document. The document book may then be entered into evidence as one entire exhibit. Keeping your document in this manner will also ensure that they do not get misplaced.
You should make four copies of your document book: 1 for yourself, 1 for the witness (if applicable), 1 for your opposing litigant and 1 for the judge. If you want your witness to review the documents, he/she should have a document book with them in the stand. The judge will find this system much easier to deal with as opposed to you walking back and forth to the witness stand with one document at a time. Remember that you are there to promptly get to the point of your case and not waste the court’s time and therefore, resources.
Before your next visit to Small Claims Court, spend considerable time thinking about and gathering your evidence. Ensure it is relevant, not repetitious and presented in an organized fashion. This will greatly assist you and the court.
