Evidence in small claims cases

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In order to convince a judge that your version of the story is the right one, you will have to provide evidence.  This can be your own testimony and that of other witnesses, as well as documents and other physical evidence. However, all the evidence you submit must be relevant to your case.

Providing testimony to tell your version of the story

Testimony is an oral statement made in court on the day of the hearing. You can testify yourself and also have other witnesses testify. If other witnesses testify, this can be either as an ordinary witness or an expert witness.

An ordinary witness reports the relevant facts and can only testify about what they personally did, said or saw. You will testify as an ordinary witness by telling your story to the judge on the day of the hearing.

An expert witness provides an opinion on matters about which they have expertise. Their role is to help the judge understand certain complexities of the case. For example, in a case involving a hidden defect, a building inspector could testify as an expert witness to explain what caused the defect and what work is necessary to correct it.    

A written statement to replace verbal testimony

Your witnesses can sign an “Affidavit in lieu of testimony” to avoid having to come to court on the day of the hearing.

Find out more: Affidavit in lieu of testimony (Justice Québec).

Limitations on testimony

The rules of evidence prohibit certain types of testimony. For example, witnesses generally can’t report to the court statements made by someone else. That is known as “hearsay”, and is not permitted.  The person who actually made the statement must testify personally before the judge.

Also, you should not rely solely on your testimony if you want to prove a payment or contract between you and another person when the amount involved is greater than $1,500. You will need written evidence to do this, except in the following situations:

  • The contract was entered into in the ordinary course of a company’s business.

 or

  • There is a “commencement of proof”, namely something that makes it plausible that there is a contract between you and the other person, such as an admission they made, made, an exchange of e-mails or a bank transfer.

Also, you cannot contradict or change the terms of a written contract through testimony, unless there is a commencement of proof which makes it plausible that the written contract differs from the agreement reached.

Presenting documents

Where possible, try to present documents that support your version of the story, for example:

  • an invoice
  • a letter
  • an e-mail
  • a contract
  • an estimate of costs
  • a report or expert opinion

Here are some tips if you intend to use photos:

  • Make sure to note the date the photos were taken.
  • Describe what is shown in the photos and the name of the person who took them.
  • If necessary, make photocopies of the photos and add notes. For example, you could circle something important in the photo or add arrows with explanations.
  • The quality of the photos is more important than the quantity: one or two photos that show the extent of damage can be sufficient.

File your evidence at least 21 days in advance

You must file in court the originals of all photos and documents you intend to use as evidence, at least 21 days before the scheduled hearing date. You can send the documents by mail (registered mail) or file them in person. If you miss this 21-day time limit, the judge could refuse to consider them.

For more information on how to prepare for your trial, see “8 tips on how to prepare for your hearing in small claims court”.

Burden of proof

Usually, the person who filed the claim has the “burden of proof”, which means they are responsible for proving the facts on which the claim is based. Using all the available evidence, you must convince the judge that your version of the story is more probable than improbable. In rendering a decision, the judge will consider only the evidence submitted to the court.