InfoLAW: Evidence

Facts are central to any legal decision. Only once the facts of the matter have been determined by the court can the relevant law be applied, and a decision rendered. To determine the facts of a case, parties will submit evidence using rules and procedures that have been established through legislation and case law. The basic rule of evidence is that information can be admitted as evidence where it is relevant to a material issue in the case. Other rules of evidence deal with the exclusion of evidence from being considered by the court or tribunal. This InfoLAW provides a brief overview of how evidence functions in a trial or tribunal hearing.

Types of Evidence

The primary ways evidence is put before a court or tribunal are: oral testimony or evidence, written evidence, physical evidence and expert evidence (the opinions of expert witnesses).

Oral Evidence

Oral evidence is information provided verbally by parties to a hearing. This type of evidence can also be provided by witnesses who provide their testimony at the request of the parties involved in the case.¹ Individuals providing oral testimony will be asked to swear an oath or solemn affirmation that the information they provide is the truth. Breaking this oath can have legal consequences for the person providing oral evidence. After the oath or affirmation is given, the individual testifying will be asked questions about what they saw or experienced in relation to the legal issue at trial. These questions will help the judge, jury, and/or panel establish the facts, and will also test the reliability of the other evidence being presented.²

Written Evidence

Written evidence generally takes one of two forms: affidavit evidence or documentary evidence. Affidavit evidence, like oral evidence, is evidence that is provided under oath or solemn affirmation. Affidavits, like oral evidence, must contain only the relevant facts that are within the personal knowledge of the individual providing the evidence.³ Documentary evidence is a much broader category of evidence, generally including any physical or electronic record of information. In the context of a trial or hearing, parties are required to disclose and provide access to all relevant documents to each other and to the court or tribunal.⁴

In the context of a trial or hearing involving health care professionals, the patient’s health record can be extremely important to a case’s resolution. The health record should provide a factual chronology of events, given its function as a communication tool for health care providers, for the benefit of the patient. Criteria used by the court to assess the reliability of chart entries are that they were made: contemporaneously to the care given; by the person who had personal knowledge of the events; and by a person who had a duty to record the events.⁵ Witnesses or parties to the proceeding may prepare to give evidence by reviewing documents such as the patient’s chart to refresh their memories.

Physical Evidence

Physical evidence refers to objects that are presented at the hearing to help establish the facts. For instance, a sponge or instrument retained during a surgery that is subsequently retrieved and entered into evidence in the course of a trial alleging negligence in the conduct of the count of foreign bodies would constitute physical evidence.

Expert evidence

Unlike factual witnesses, expert witnesses testify as to their opinion about some element of the case. They cannot testify about what happened at the time because they were not there. In medical trials or hearings, the patient chart is often a primary source of data for the formation of expert witness opinion evidence. If a court decides that the chart is unreliable, it brings into question the reliability of expert opinions since the foundation for the opinions has been deemed to be flawed.

Admissible Evidence

To be admissible, evidence must be reliable, relevant to an issue in the case, and not subject to an exclusionary rule of evidence. The rule against hearsay is an example of an exclusionary rule, as hearsay is generally inadmissible evidence. Hearsay is a statement made by a person who will not be called as a witness that is repeated in court to establish that the content of the statement is true.⁶

There are some exceptions to the hearsay rule. It is not hearsay to introduce an out-of-court statement to establish the fact that the statement was made. A nurse who is giving evidence can simply identify what was said to them and by whom. Then a legal determination as to the admission of this hearsay evidence will be made by the court after the lawyers have presented their legal arguments about its admissibility.

Weight

Once a court has decided evidence is admissible, it will determine how much weight it should be given, in other words, evaluate its significance in relation to other evidence.⁷ Let’s use the patient’s chart as an example. As an exception to the hearsay rule, the information contained in a patient’s chart is generally accepted in evidence as prima facie (presumed unless overcome by evidence to the contrary) proof of the facts stated therein.⁸ However, this presumption can be challenged, and chart information may be given less weight if there are indications that it is not entirely reliable, including where it can be established that: information relevant to the patient’s care has been omitted, the times and/or events were not accurately described, or the content of the chart has been altered.

Formality of Legal Process and the Rules of Evidence

Court proceedings are governed by provincial or federal statutes which set out the rules of court. An example is the requirement for early disclosure of relevant documents between the parties to encourage early resolution of the dispute. The rules of procedure and rules of evidence are less formal for an administrative tribunal, such as a panel hearing a professional discipline case, but they still exist.

Preservation of Evidence

The resolution of a legal dispute can take place years after the originating incident. While the patient’s health record may be the best evidence of your good nursing care, it must be accessed and used only in accordance with law. Authorization to access and use the records for the purpose of legal defence should normally be sought if you are not the custodian or trustee of the health records. For more information, please see our publication “Are you a custodian or trustee of health records?”

Preserving your evidence by writing down what you know of the event can ensure it is not lost or varied with the passage of time. High quality evidence will positively affect your credibility. To preserve your evidence while maintaining solicitor-client privilege, the document must be a communication to a lawyer in anticipation of legal proceedings. The Canadian Nurses Protective Society can help a nurse preserve their written evidence. Physical evidence, such as a patient’s clothing or bullets, may have to be preserved for future legal proceedings. Health institutions may have adopted a policy on the preservation of physical evidence.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. ‘Evidence in Court: Oral Testimony’ (Centre for Public Legal Education Alberta, 2023), online: CPLEA <https://www.cplea.ca/wp-content/uploads/GTCS_EvidenceOralTestimony.pdf>.
2. ‘Discipline Hearings Information for Witnesses’ (College of Nurses of Ontario, 2016), online: CNO <https://www.cno.org/globalassets/docs/ih/42013_infowitnesses.pdf>.
3. Katz (Bankruptcy), Re, 2005 CanLII 30874 (ON SC), online: CanLII <https://canlii.ca/t/1ljg6>; Stevens and O’Connell et al, 2013 ONSC 2236 (CanLII), online: CanLII <https://canlii.ca/t/fx3fx>.
4. 30.02 Rules of Civil Procedure RRO 1990, Reg. 194; Documents as Evidence, Supreme Court of BC (2023), online: Supreme Court BC <https://supremecourtbc.ca/civil-law/trial/documents-as-evidence>.
5. Ares v Venner, 1970 CanLII 5 (SCC), online: CanLII <https://canlii.ca/t/1nl92>.
6. R v Evans, 1993 CanLII 102 (SCC), [1993] 2 SCR 629, online: CanLII <https://canlii.ca/t/1fs19>.
7. “Evidence Basics”, (2023), online: Supreme Court BC <https://supremecourtbc.ca/civil-law/trial/evidence-basics>.
8. Ares v Venner, 1970 CanLII 5 (SCC), online: CanLII <https://canlii.ca/t/1nl92>.

December 2009, Revised March 2024

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.