Relying on Hearsay in Injunctions: When Does It Meet the Test?
Hearsay statements are permitted in a motion for injunction, but one must avoid relying heavily on such statements when there is a higher standard of proof to meet. Our firm was recently successful in One World Logistics Group Corp v Sotiri[1]. This case serves as a warning against using hearsay without sufficient supporting evidence.
In Sotiri, our client’s former employers attempted to prevent him from competing against the company. As the moving party, they provided statements from company executives, describing conversations with clients who had recently met with Mr. Sotiri to discuss business. However, these statements were hearsay: with no opportunity to cross-examine the clients and no supporting evidence that these accounts were accurate, they could not be admissible at trial. To quote the presiding judge, Justice Centa, “I place no weight on that hearsay evidence as I cannot assess its reliability or credibility.”
Defining Hearsay Evidence
Hearsay is an out-of-court statement meant to support a certain position, where the declarant is not available for cross-examination. Whether something is hearsay depends on how difficult it is to verify its reliability.
While overreliance on hearsay can be fatal, there is “no prohibition on relying on hearsay evidence in a motion” for an interlocutory injunction. A court may accept such evidence if a “reasonably skeptical” person would likely regard the statement as trustworthy, or if there is a readily available method of testing the statement’s accuracy, such as physical evidence. Knowing when to and when not to rely on hearsay is important for bringing any motion.
Because hearsay is inherently secondhand information, where the declarant is not seen or heard, courts are wary of giving such statements too much weight. In Sotiri there was no indication that the hearsay given was backed up by additional evidence, leaving Justice Centa with doubt that the moving party could “call that evidence at trial, where the hearsay evidence will be excluded.”
When Hearsay Is Allowed in Court
Under the Rules of Civil Procedure[2], information can be permitted in a motion affidavit even where it is obtained through speaking with another witness, so long as the affidavit specifies the information’s source.
Circumstances where a hearsay statement may be admitted include[3]:
- The contents of the statement are trustworthy because of how they were obtained;
- The necessity of the evidence may warrant it being considered; and
- The trier of fact is otherwise able to assess its worth.
“Serious Issue” vs “Prima Facie” Standard
To argue for an injunction, the moving party needs to pass a three-stage test, the first of which is to meet one of two standards.
- The more lenient test is whether the action involves a
serious question to be tried,
which simply requires the claim to not be “frivolous and vexatious.”
This is often the standard for temporary injunctions. - For measures that would interfere with the respondent’s ability to earn a livelihood,
such as enforcing a restrictive covenant, a higher standard must be met: showing that
the moving party has a strong prima facie
This requires proof of “a strong likelihood on the law and the evidence to be presented at trial
that it will prove the allegations set out in the originating notice.”
[4]
When the test is for a “serious issue”, hearsay may be enough to meet the threshold. The court will likely find there is a serious issue if the statements create a reasonable belief that wrongdoing – such as obstruction of entry to property[5] – might have occurred. By comparison, hearsay alone will not meet the much higher “strong prima facie” threshold, as shown in Sotiri.
Even when relying on hearsay to pass the “serious issue” test, doing so could still lead to failing the remaining two tests – proving irreparable harm would occur without the injunction, and whether the balance of convenience favours it. It is always preferable to have material evidence and accessible witnesses to bolster the strength of a case.
At Walker Law, our experienced civil litigation team has handled a wide variety of injunction matters. If you are involved in an injunction and are uncertain about how strong the motion evidence is, please do not hesitate to contact us at [email protected] for a consultation.
[1] One World Logistics Group Corp v Sotiri
[2] Rules of Civil Procedure, Rule 39.01(4)
[4] R. v. Canadian Broadcasting Corp.
[5] Titan Tool & Die Limited v. Unifor
Tags: Injunctions, Employment Litigation Law, Civil Litigation Law