Evidence during your arbitral trial
During an arbitration, your chances of success depend largely on the evidence you submit. Even if you tell the truth, the arbitrator is not obliged to take your word for it: you must present evidence that supports your claims.
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The burden of proof
To have the "burden of proof" is to be the person responsible for proving that his or her version of events is the right one. Depending on the circumstances, the burden of proof may be on you, or on your opponent.
You do not need to convince the arbitrator that you are right beyond a reasonable doubt. You only need to show that your version of events is more probable than your opponent's. The more you base your claims on quality evidence, the more you will tip the scales in your favor!
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Types of Evidence
Writings
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Writings usually constitute excellent evidence, and may even be necessary in many cases. Writings include notarial acts, contracts, business writings (such as invoices, quotes, pay stubs), or various other papers such as handwritten notes, e-mails, text messages, publications on social media, letters, diaries, etc.
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Testimony
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Although this is not the most convincing type of evidence, testimony remains widely used in arbitration hearings. The witness will come to tell the arbitrators facts that he or she has personal knowledge of: he or she will tell the story of what happened, telling what he or she saw and heard. The arbitrator will judge whether the testimony seems credible to him, and whether the version of the facts it presents concords with the rest of the evidence. A witness must stick to the facts, and not give his or her personal opinion. A witness may gain credibility if his or her testimony is supported by written evidence.
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Be aware that, in some situations, testimonial evidence is prohibited.
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Expert reports
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The arbitrator is familiar with the law, but his knowledge may be limited in other areas. For example, if your case involves technical issues in terms of auto mechanics, computer programming or medical care, the arbitrator will need to be informed by an expert's opinion to settle the dispute.
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The expert is a person whose training or advanced experience in a particular field allow him or her to give qualified opinions on this subject. The expert does not need to have personally witnessed the facts of the dispute and, unlike ordinary witnesses, can give his or her opinion on the questions put to him or her. This will be left to the discretion of the arbitrator.
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Admissions
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An admission is a recognition or acknowledgement, by one of the parties to the dispute, of facts that harm or contradict one's claims. An admission can result from a writing, speech, gestures or actions. For example, if your opponent claims that he loaned you money, while you claim it was a gift, you would have made an admission if at any point you had discussed reimbursement: the fact that you talked about reimbursement is an admission on your part that the contract between the two of you was a loan and not a gift. If your opponent has made an admission, you should point it out to the arbitrator!
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Real Evidence
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Real evidence is a physical object that you wish to show to the arbitrator. In the case of an item that cannot be brought with you on the day of your hearing, additional evidence will be required to allow the arbitrator to view it (for example, photos or a video). If you intend to use real evidence, mention it in your claims.
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Not all evidence has equal strength!
Some evidence will be very convincing for the arbitrator, while another will not be. To be convincing, evidence must first and foremost be relevant to the debate. For example, if you claim that your opponent did not respect his contract with you, it would not be relevant to have someone who has had a similar problem with him testify to try to show that your opponent is a person that is unreliable or not true to his word.
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When you have several ways to prove your claims, you must provide the best evidence. If you do not submit the best evidence, you leave doubt in the mind of the arbitrator. For example, if you have signed a written contract with your opponent, it will be more convincing to hand this contract over to the arbitrator, rather than providing him with an email or text message in which your agreement is mentionned.
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Finally, it is worth remembering that the original version of an evidence is always better because it is more reliable.
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Prohibited evidence
Be mindful that some evidence may not be accepted by the arbitrator! Here are some examples.
Irrelevant evidence
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As explained above, your evidence must be relevant to the dispute to be settled by the arbitrator. Your arbitral trial should not be used for personal attacks or other quarrels between your opponent and you, which have nothing to do with your legal dispute. For example, if you sue your ex-boyfriend to recover your car with which he left, it is not relevant to submit evidence that he cheated on you with your best friend during your relationship. Even if that is the reason why you split, it has nothing to do with your ownership of the vehicle. Likewise, certain elements may be related to the litigation that concerns you, but do not prove anything.
Evidence infringing on fundamental rights and freedoms
You cannot submit evidence obtained under conditions that violate the rights and freedoms guaranteed by the Canadian Charter or the Quebec Charter. For example, you could not use as avidence emails or text messages obtained through unauthorized access to someone else's computer or phone, or evidence obtained through a break-in at someone's home. Indeed, doing so would constitute violations of the right to privacy or the right to the inviolability of the home. Not only would this evidence be inadmissible, but you could also expose yourself to criminal prosecution!
Hearsay
A witness can only report facts which he or she has been personally aware of. It is not acceptable in a testimony to report facts that have been told by another person. This is called hearsay, and is not admissible as evidence. Rather, the person who has first-hand knowledge of the events should be the one to testify.
Testimony to contradict or modify a written contract
Words fly away, writings remain! Except in exceptional cases, it is not possible to contradict or modify the terms of a written contract through a testimony. For example, if you signed a contract with the other party for $ 8,000, but you later agreed orally to reduce the price to $ 6,000, you will not be able to use your testimony to prove that the price was reduced.
Testimony to prove contracts over $ 1,500
Testimony is generally not admissible when it comes to proving the existence or content of a contract of a value exceeding $ 1,500. However, there are two exceptions to this rule:
The existence of other evidence
If the testimony is accompanied by other valid evidence to support the existence of the contract or its content, then it will be admissible. For example, an invoice, an email, a bank statement, a photograph, a text message, etc., can make the testimony acceptable.
The contract concluded in the context of business activities
If you were the client of a company, your testimony could be used to prove the existence of a verbal contract with it. On the other hand, the company could not, in turn, prove the existence of the contract by means of a testimony.
Questions? Uncertainties?
If you have questions about the evidence to be presented during your audition, do not hesitate to contact us!