Collecting Evidence

Evidence

As soon as you know that you may be involved in a tribunal hearing, you should gather evidence to prove your case. Your evidence may include:

• Original documents (e.g., contracts, letters, receipts, financial statements, cancelled cheques, etc.);
• Clear, readable photocopies if the original document is not available; and
• Statements from people who were eye-witnesses to an event or have direct knowledge about a particular issue (e.g., a friend who saw you give the rent cheque to the landlord). It is best to provide sworn statements from these witnesses (i.e., affidavits or statutory declarations).

You should start collecting this information as soon as you know that you may be involved in a tribunal hearing. You may have to exchange documents with the other party, who has the right to examine them, and you may have to submit them to the adjudicator well in advance of the hearing. If you do not have these documents ready and available, you may miss important deadlines, which may complicate your case.

Review the tribunal’s rules for things like:

• how to notify the other party that you will be introducing documents into evidence
• how to introduce documents as exhibits at the hearing
• how many copies to bring
• who numbers the documents
• page size

Best evidence

The success of your case depends on the evidence that you provide to support your position. The “best evidence” is always direct, relevant and original documents, statements, or other information that support the facts of your case.

The adjudicator will decide the importance of the evidence. In other words, the adjudicator will determine its “weight” in light of all the evidence that has been admitted. For example, a witness to an event in your case may be biased in your favour and the adjudicator may not attach much weight or importance to their evidence. The adjudicator will assume that your spouse or close friend will be biased in your favour, so keep that in mind when choosing witnesses to give evidence.

Relevant evidence

Evidence must be relevant, which means it relates to the issues and facts. Ask yourself: does this evidence help you prove the facts of your case? Here is an extreme example: if the issue in your case is whether an injury was work related, the fact that you injured your arm while lifting overweight boxes at work is relevant information; the fact that it was raining that day is not relevant unless it contributed to the accident.

Original documents

An original document is the best evidence; if you do not have the original, you will need to explain to the adjudicator why you are submitting a copy – the original may be lost, destroyed, or someone else may have it.

Direct evidence

Someone who witnessed an event that is important to your case will be able to give direct evidence about what happened. This evidence is much better than someone who was told of an event, but did not see it happen.

Witnesses

In some cases, it may be important to bring a witness to the hearing or have the witness provide a statement supporting your case. Again, the “best evidence” for an in-person hearing is to bring the witness to the hearing to give their evidence directly to the adjudicator.

If you are bringing a witness to an in-person hearing, you should prepare your questions for the witness ahead of time and review them with the witness. While you cannot tell the witness how to answer the questions, you can prepare them for the kinds of questions you will be asking.

Expert witnesses

In some cases, you may want to have an expert witness provide a report or give evidence at the hearing.

An expert is someone qualified with special knowledge, skill, training, and experience, like an engineer or a doctor, who can provide an expert opinion. The expert opinion is based on information that they have personally observed, or information that was provided by others.

You must follow specific rules if you intend to bring an expert witness to the hearing or submit an expert’s report. For example, you may have to submit the expert’s report or a summary of what you expect the expert to say at the hearing at least 30 days before the hearing date. It is very important to inform yourself about the special rules that apply to expert witnesses by reviewing the tribunal’s procedural rules.

Distinguish Between Evidence and Argument

It is very important to understand the difference between evidence and argument.

Evidence is used to prove something is true or not true. Evidence can be a physical object (like a document) or oral testimony (of yourself or a witness). For example,

• If you want to prove you worked 6 hours of overtime on a certain week you could present, as evidence, a copy of the work schedule for that week, as well as your and a co-worker’s testimony that you worked those hours.

Argument is what you do at the end of your case to persuade the adjudicator to make a decision in your favour. Your argument should be backed up by the evidence presented during the hearing. For example:

• “The evidence shows that I worked overtime hours and yet have not been paid for that overtime work. The law says employees must be paid overtime if they worked overtime. So, you should find I am owed overtime pay.” (You’d also want to go into specifics in your evidence and argument as to how much overtime pay you are owed.)

You can also use your argument to explain why the other party’s case or evidence is not strong. For example:

• “It is clear from their testimony that the tenant’s witness is not a reliable witness. They were frequently vague when answering questions and contradicted themselves multiple times. I submit that you cannot rely on their testimony when making your decision.”

No new evidence during arguments: You cannot introduce new evidence when you are making submissions at the end of the hearing. It is a good idea to review the information on evidence in Collecting Evidence.

Witnesses should not make arguments: You and your witnesses, if any, submit evidence in the first part of the hearing. Remember that your witness is there for the purpose of giving evidence, not to make arguments to persuade the adjudicator to decide in your favour. For example:

• After telling the adjudicator that he saw you deliver the rent cheque, your witness should not go on to say that the landlord is acting unfairly in giving the eviction notice. Those kinds of statements are not evidence – they are the submissions that you (not your witness) should make after all the evidence has been submitted.