FORD v JIVRAJ

The Plaintiff, Ford, applied to admit hearsay evidence at trial pursuant to Rule 8.17. Specifically, Ford sought to enter three records (the “Records”) relating to one of the Defendants, Jivraj, on the basis that the principled exception to the hearsay rule applied.

The Records arose from a separate Action between Ford and Jivraj (the “RO Action”) and consisted of: (i) an Affidavit sworn by Jivraj; (ii) portions of a transcript arising from the
Cross-Examination of Jivraj on that Affidavit; and (iii) Jivraj’s answers to Undertakings given during that Cross-Examination (collectively, the “Records”).

Justice Harris confirmed the test for the principled exception to the hearsay rule, specifically whether the evidence in question is necessary and sufficiently reliable. Ford argued that the Records were necessary because Jivraj was unlikely to attend trial to testify, and sufficiently reliable because Jivraj’s statements were made under oath, were against his interest, and were internally consistent with his testimony in the RO Action.

Applying this test, the Court held that the Records were neither necessary nor sufficiently reliable. Harris J. found that necessity had not been established, as Ford had not attempted to subpoena Jivraj to testify at trial. On the issue of reliability, Justice Harris noted that Jivraj’s credibility was in dispute in both the RO Action and the current Action, and that the other Defendants had no opportunity to cross-examine Jivraj on the Records.

Although the Application was dismissed, the Court granted an alternate remedy by permitting Ford to prepare a subpoena compelling Jivraj’s attendance at trial.