Recent Ontario case involved recording of converation between employees
You are in litigation and you have the proverbial “smoking gun”: that key piece of evidence that will surely win the day for you.
But is it possible that you may not be able to rely on it? Yes, if you don’t bring it forward properly.
The legal system includes rules for almost every part of the civil litigation process, including how to enter evidence. What happens when a party doesn’t follow these rules? In Aware Ads Inc. v Walker, 2022 ONSC 5543, a recent decision of the Ontario Superior Court of Justice, the court demonstrated exactly how it would address improperly entered evidence.
In Walker, the employee, a senior business development manager, had left employment with the employer after eight years in a senior role. The employer immediately moved for an injunction, asserting that the employee had stolen and misused its confidential information. The employer’s initial motion was heard in 2021 but dismissed for insufficient evidence. It moved again in 2022, seeking an injunction preventing the employee from working with one of its clients.
At the start of the hearing the presiding justice, Robert Centa, addressed the admissibility of a transcript and recording of a conversation between the employee and an individual (the “witness”). The employer described this recording as one of its most important pieces of evidence.
The employer first tried to introduce the transcript as an exhibit to an affidavit. Justice Centa noted that the transcript was not certified and did not indicate it had been prepared by a professional — all of which was necessary for it to be relied upon as evidence. Justice Centa refused to allow the transcript to be introduced as evidence at the hearing and struck reference to the transcript in the employer’s affidavit.
The employer had not served the recording as part of its motion record due to what it described as technical issues. Despite this, the employer tried to play excerpts of the recording as part of its oral submissions. Justice Centa did not permit the recording to be played.
The court noted that in order for the recording to be introduced as evidence, the witness should have sworn an affidavit confirming that he had a conversation with the employee on the day in question, that he recorded this conversation (specifying the software he used to do so), that the data file in the exhibit contained the recording as he had reviewed it, and that the copy of the data file submitted as the exhibit contained this file — none of which had occurred.
The witness had sworn an affidavit on the day the conversation allegedly took place but did not mention having spoken to the employee. Further, none of the subsequent “flurry” of affidavits the employer filed leading up to the hearing of the motion referenced the recording or provided any evidentiary basis for it to be included.
Justice Centa excluded the recording from the hearing of the motion but acknowledged that it and the transcript could be introduced at trial or on a subsequent motion if the proper foundation was laid.
The final issue to be addressed was the attempted use of the recording at the cross-examination of the employee on his affidavit for the motion.
On cross-examination the employee confirmed that he recalled a lengthy call with the witness “sometime in October 2021”, at which point the employer then referenced the recording, advising that it had not been part of the motion record but had been emailed to the employee's counsel.
The employee’s counsel objected to the employer’s reference to the recording, stating that as it was not part of the motion record any question would be answered under objection. The employer continued with the cross-examination, even going so far as to play the recording to aid the employee’s recollection. The employee’s counsel maintained his objection, again stating that the recording was not part of the record.
The employer continued, asserting that it was allowed to ask the employee any question it chose about anything in the employee’s affidavit or any question relevant to the motion. The court agreed that the employer could ask about anything in the employee’s affidavit, but advised the parties that there was a correct procedure to play a recording to refresh a witness’ memory which the employer had failed to follow.
Justice Centa sustained the employee’s counsel’s objections and excluded all questions and answers arising from the use of the recording, found that the employer had once again not made out a case for an injunction based on its submissions, and denied the requested relief.
The civil legal system only works as long as all the parties involved follow the rules. As we always tell our clients, cases are decided based upon evidence and not truth — it’s not what you know, it’s what you can prove.
There are strict rules governing how evidence is introduced and used, and failure to follow them can mean that the evidence you think you have can become irrelevant. In Walker the court’s decision demonstrated that these rules are not there for show, and will be enforced. Not only was the employer denied its requested relief, it will likely face a significant bill of costs from the employee (an injunction is a very expensive legal process).
While it may not seem right to some, even if evidence of something exists, courts will not take it into consideration if it does not meet the procedural requirements.
Ultimately, Walker is a lesson to follow the rules. The employer appeared to see the transcript and recording as a smoking gun, but did nothing to properly introduce these two items into the record (or in the case of the transcript, prepare it correctly). Had it done so, the outcome of the case may have been different.
The key point is that if you have a crucial piece of evidence, or any evidence you want to rely upon you must ensure that it is disclosed and produced properly. Otherwise, you may lose a case you should win.
Follow the rules — or face the consequences.