What is hearsay evidence and is it admissible in Ontario civil trials?

Hearsay is an out-of-court statement — something someone said or wrote outside the courtroom — that is offered in court as proof that what was said is true. The classic concern with hearsay is that the person who made the original statement cannot be cross-examined, so their credibility and perception cannot be tested.

In Ontario civil trials, the general rule is that hearsay is inadmissible. However, this rule has many exceptions and has evolved significantly under the principled approach developed by Canadian courts. Under the principled approach, hearsay evidence may be admitted if it is both necessary (the declarant is unavailable or it would be impractical to call them) and sufficiently reliable (there are adequate substitutes for the testing that cross-examination would provide).

Common recognized hearsay exceptions in Ontario civil cases include: admissions by a party opponent (a party's own out-of-court statements are admissible against them); business records (records made in the regular course of business); res gestae (spontaneous statements made in the heat of the moment); and dying declarations in appropriate cases. Expert witnesses may also rely on hearsay to form their opinions, though the underlying statements themselves may not be independently admissible as truth. Hearsay questions in trial preparation should be worked through carefully with a lawyer.