Evidence Act, R.S.O. 1990, c. E.23

• Jurisdiction: Ontario

Evidence Act

R.S.O. 1990, CHAPTER E.23

Consolidation Period: From March 6, 2024 to the e-Laws currency date.

Last amendment: 2024, c. 2, Sched. 19, s. 6.

CONTENTS

Definitions

1 In this Act,

“action” includes an issue, matter, arbitration, reference, investigation, inquiry, a prosecution for an offence committed against a statute of Ontario or against a by-law or regulation made under any such statute and any other proceeding authorized or permitted to be tried, heard, had or taken by or before a court under the law of Ontario; (“action”)

“court” includes a judge, arbitrator, umpire, commissioner, justice of the peace or other officer or person having by law or by consent of parties authority to hear, receive and examine evidence; (“tribunal”)

“spouse” means a spouse as defined in section 1 of the Family Law Act. (“conjoint”) R.S.O. 1990, c. E.23, s. 1; 2005, c. 5, s. 25 (1).

Section Amendments with date in force (d/m/y)

2005, c. 5, s. 25 (1) - 09/03/2005

Application of Act

2 This Act applies to all actions and other matters whatsoever respecting which the Legislature has jurisdiction. R.S.O. 1990, c. E.23, s. 2.

Administration of oaths and affirmations

Authorized persons

3 (1) Where by any Act of the Legislature or order of the Assembly an oath or affirmation is authorized or directed to be administered, the oath or affirmation may be administered by any person authorized to take affidavits in Ontario. R.S.O. 1990, c. E.23, s. 3 (1).

Courts

(2) Every court has power to administer or cause to be administered an oath or affirmation to every witness who is called to give evidence before the court. R.S.O. 1990, c. E.23, s. 3 (2).

Certification

4 Where an oath, affirmation or declaration is directed to be made before a person, he or she has power and authority to administer it and to certify to its having been made. R.S.O. 1990, c. E.23, s. 4.

Recordings and transcripts of evidence

Recording

5 (1) Despite any Act, regulation or the rules of court, a stenographic reporter, shorthand writer, stenographer or other person who is authorized to record evidence and proceedings in an action in a court or in a proceeding authorized by or under any Act may record the evidence and the proceedings by any form of shorthand or by any device for recording sound of a type approved by the Attorney General. R.S.O. 1990, c. E.23, s. 5 (1).

Admissibility of transcripts

(2) Despite any Act or regulation or the rules of court, a transcript of the whole or a part of any evidence that has or proceedings that have been recorded in accordance with subsection (1) and that has or have been certified in accordance with the Act, regulation or rule of court, if any, applicable thereto and that is otherwise admissible by law is admissible in evidence whether or not the witness or any of the parties to the action or proceeding has approved the method used to record the evidence and the proceedings and whether or not he or she has read or signed the transcript. R.S.O. 1990, c. E.23, s. 5 (2).

Regulations

(3) The Attorney General may make regulations,

(a) requiring the certification of recordings of evidence and proceedings under subsection (1), and respecting the certification of those recordings;

(b) requiring the certification of transcripts under subsection (2), and respecting the certification of those transcripts; and

(c) prescribing the format, wording or content of certificates to be used in connection with certification under clauses (a) and (b). 2001, c. 9, Sched. B, s. 8; 2011, c. 1, Sched. 1, s. 2.

Section Amendments with date in force (d/m/y)

2001, c. 9, Sched. B, s. 8 - 29/06/2001

2011, c. 1, Sched. 1, s. 2 - 30/03/2011

Witnesses, not incapacitated by crime, etc.

6 No person offered as a witness in an action shall be excluded from giving evidence by reason of any alleged incapacity from crime or interest. R.S.O. 1990, c. E.23, s. 6.

Admissibility notwithstanding interest or crime

7 Every person offered as a witness shall be admitted to give evidence although he or she has an interest in the matter in question or in the event of the action and although he or she has been previously convicted of a crime or offence. R.S.O. 1990, c. E.23, s. 7.

Evidence of parties

8 (1) The parties to an action and the persons on whose behalf it is brought, instituted, opposed or defended are, except as hereinafter otherwise provided, competent and compellable to give evidence on behalf of themselves or of any of the parties, and the spouses of such parties and persons are, except as hereinafter otherwise provided, competent and compellable to give evidence on behalf of any of the parties. R.S.O. 1990, c. E.23, s. 8 (1); 2005, c. 5, s. 25 (2).

Evidence of spouse

(2) Without limiting the generality of subsection (1), a spouse may in an action give evidence that he or she did or did not have sexual intercourse with the other party to the marriage at any time or within any period of time before or during the marriage. R.S.O. 1990, c. E.23, s. 8 (2); 2005, c. 5, s. 25 (3).

Section Amendments with date in force (d/m/y)

2005, c. 5, s. 25 (2, 3) - 09/03/2005

Witness not excused from answering questions tending to criminate

9 (1) A witness shall not be excused from answering any question upon the ground that the answer may tend to criminate the witness or may tend to establish his or her liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the Legislature. R.S.O. 1990, c. E.23, s. 9 (1).

Answer not to be used in evidence against witness

(2) If, with respect to a question, a witness objects to answer upon any of the grounds mentioned in subsection (1) and if, but for this section or any Act of the Parliament of Canada, he or she would therefore be excused from answering such question, then, although the witness is by reason of this section or by reason of any Act of the Parliament of Canada compelled to answer, the answer so given shall not be used or receivable in evidence against him or her in any civil proceeding or in any proceeding under any Act of the Legislature. R.S.O. 1990, c. E.23, s. 9 (2).

Evidence in proceedings in consequence of adultery

10 The parties to a proceeding instituted in consequence of adultery and the spouses of such parties are competent to give evidence in such proceedings, but no witness in any such proceeding, whether a party to the suit or not, is liable to be asked or bound to answer any question tending to show that he or she is guilty of adultery, unless such witness has already given evidence in the same proceeding in disproof of his or her alleged adultery. R.S.O. 1990, c. E.23, s. 10; 2005, c. 5, s. 25 (4).

Section Amendments with date in force (d/m/y)

2005, c. 5, s. 25 (4) - 09/03/2005

Communications made during marriage

11 A person is not compellable to disclose any communication made to the person by his or her spouse during the marriage. 2005, c. 5, s. 25 (5).

Section Amendments with date in force (d/m/y)

2005, c. 5, s. 25 (5) - 09/03/2005

Expert evidence

12 Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding. R.S.O. 1990, c. E.23, s. 12.

Actions by or against heirs, etc.

13 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. R.S.O. 1990, c. E.23, s. 13.

Actions by or against incapable persons, etc.

14 An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:

1. A person who has been found,

i. incapable of managing property under the Substitute Decisions Act, 1992 or under the Mental Health Act,

ii. incapable of personal care under the Substitute Decisions Act, 1992, or

iii. incapable by a court in Canada or elsewhere.

2. A patient in a psychiatric facility.

3. A person who, because of a mental disorder within the meaning of the Mental Health Act, is incapable of giving evidence. 2009, c. 33, Sched. 2, s. 32 (1).

Section Amendments with date in force (d/m/y)

2009, c. 33, Sched. 2, s. 32 (1) - 15/12/2009

Use of examination for discovery of officer or employee of corporation at trial

15 An examination for discovery, or any part thereof, of an officer or employee of a corporation made under the rules of court may be used as evidence at the trial by any party adverse in interest to the corporation, subject to such protection to the corporation as the rules of court provide. R.S.O. 1990, c. E.23, s. 15.

Mode of administering oath

16 Where an oath may be lawfully taken, it may be administered to a person while such person holds in his or her hand a copy of the Old or New Testament without requiring him or her to kiss the same, or, when the person objects to being sworn in this manner or declares that the oath so administered is not binding upon the person’s conscience, then in such manner and form and with such ceremonies as he or she declares to be binding. R.S.O. 1990, c. E.23, s. 16.

Affirmation in lieu of oath

17 (1) A person may, instead of taking an oath, make an affirmation or declaration that is of the same force and effect as if the person had taken an oath in the usual form. 2009, c. 33, Sched. 2, s. 32 (2).

Certifying affirmation

(2) Where the evidence is in the form of an affidavit or written deposition, the person before whom it is taken shall certify that the deponent...