Some observations about evidence in the electronic age.

Posted By: Shaun Fluker

Case Commented On: Kon Construction v Terranova Development, 2015 ABCA 249

This Court of Appeal decision concerns a dispute over the performance of a contract. Terranova retained Kon Construction to grade lands for residential development. The work was to be done in 2005 but was delayed into 2006 and the agreement went sour. Kon Construction filed a claim for unpaid invoices and Terranova counterclaimed that Kon Construction breached the agreement on a number of grounds thereby allowing it to retain another firm to complete the grading work. At trial Madam Justice B.A. Brown ruled that Terranova did not have grounds to terminate its

contract with Kon Construction and was therefore liable for a portion of the unpaid invoices which she found had been improperly inflated (Kon Construction v Terranova Development, 2014 ABQB 256). The issues on appeal were primarily on the admissibility of certain electronic records.

Under the contract Kon Construction was to be paid on the basis of earth moved in the grading work. The evidence in dispute here was entries and calculations made by site surveyors to measure the amount of work completed. Terranova argued these electronic records were inadmissible because they consist of expert evidence which was not properly admitted through a qualified expert (at paras 11 and 12). The Court rejects both of these arguments, and in doing makes some remarks on electronic records and expert evidence. The Court makes reference to some law with respect to qualifying expert witnesses (at paras 30 to 43), which I do not comment on here. Terranova also argued the records are inadmissible as hearsay because the raw data was entered by surveyors who did not testify to its accuracy, and the Court rejects this argument on the business records exception to the hearsay rule (at para 49).

Evidentiary issues is not an area of law that I spend much time with, but the reason this decision caught my attention is because I do think about how the computer age--and the capability of the internet in particular--is affecting how we make and practice law. The Court of Appeal makes some brief remarks in this regard as it relates to electronic evidence:

The electronic age has affected many aspects of society and business, and has had a particular impact on record creation and management. Information gathering is increasingly automated, and record keeping is now commonly done in electronic format. This appeal requires...