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Hearsay evidence in certification applications: some basis in fact, or truth of its contents?

Romero v The Meat Shop at Pine Haven, 2022 ABKB 621 (“Romero”), provides additional guidance on the admissibility of hearsay evidence in certification applications. We briefly discussed this issue here following the decision in VLM v Dominey, 2022 ABKB 299 (“Dominey”).

These cases indicate that whether evidence will be admissible for the purposes of establishing “some basis in fact” for the common issues element of certification proceedings will turn on the court’s characterization of the evidence:

  • Out-of-court statements tendered to prove the truth of their contents are hearsay and are ordinarily inadmissible unless an exception to the hearsay rule applies (Romero).
  • Double or triple hearsay evidence that has little to no probative value is inadmissible, even during a certification application where the bar is low (Dominey).
  • Out-of-court statements tendered to prove only that the evidence exists are not hearsay and will be admissible (Dominey).

Guidance from Dominey

In Dominey, the plaintiff alleged that multiple defendants abused putative class members while they were detained in the Edmonton Youth Development Centre. In support of the certification application, the plaintiff filed a paralegal’s affidavit describing her interview of two prospective class members (which attached portions of two separate police reports), and filed a transcript from a preliminary inquiry in which a judge determined that a jury could return a guilty verdict against a defendant.

The Court admitted all of the evidence, save the police reports, and held that the affidavit and transcripts were not hearsay evidence as alleged by the defendants because neither document was tendered for the truth of its contents. While the affidavits did not prove that the abuse took place, they proved that multiple witnesses testified under oath or stated in an interview that they were abused. This evidence could therefore provide a basis in fact that could be used to establish a common issue.

The police reports were inadmissible because they were filled with “primarily double and triple hearsay to such an extent that the probative value [was] so slight as to be virtually meaningless even on a certification application where the test is low.”

Guidance from Romero

In Romero, the plaintiff alleged that the proposed class suffered injury and loss because of the purchase and consumption of pork products produced by the defendants. In support of the certification application, the plaintiff swore an affidavit containing excerpts from reports issued by Alberta Health Services (“AHS”) and the Canadian Food Inspection Agency (“CFIA”) obtained by a FOIP Request and submitted two affidavits from experts in food safety and microbiology. The AHS and CFIA Reports contained information that confirmed there was an E.coli outbreak that could be traced back to the defendants.

The defendants objected to the plaintiff’s evidence on the basis that the AHS and CFIA Reports were hearsay. The Court agreed that while the records produced by AHS and the CFIA were hearsay, they were admissible under the business records exception pursuant to Ares v Venner, [1970] S.C.R. 608, where the Supreme Court of Canada held at para 26 that:

“Notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record, should be received in evidence as prima facie proof of the facts stated therein.”

The Court found that the prospective plaintiffs could not be expected to have any personal knowledge of the defendants’ operations and therefore, only the necessity and reliability of the business records could be considered in the establishment of “some basis in fact.”



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