In its recent interlocutory decision in Ville de Mont-Royal v. Saleh et al.,1 the Administrative Tribunal of Québec (the “ATQ”) reiterated the rules governing the admissibility of personal notes contained on file as evidence. In short, notes on file, whether in electronic or paper format, are admissible when it can be established that they are contemporaneous to the events on record and that their integrity was maintained. However, the fact that files recorded on technology-based or electronic media are replacing the more conventional paper files has complicated matters further.
USEFULNESS IN CASE OF LITIGATION
Occasionally, the essential elements of a case are found in the personal notes of an employer’s representative or a superior, hence the importance of being able to refer to and introduce them as evidence.
Civil as well as administrative tribunals impose restrictions on the admissibility of these personal notes as evidence. They are admissible as evidence only if they satisfy the following requirements:
- the notes are contemporaneous and drafted by the witness, that is to say recorded at the time of the events reported;
- the notes are contemporaneous and drafted by a third party at the time of the events reported, and the witness was able to verify their accuracy;
- if the personal notes were recorded on technology-based or electronic media, their integrity must have been maintained at all times during their retention.2
If the personal notes were drafted using a computer or any other technology, the Act to establish a legal framework for information technology compels parties that want to introduce an electronic document as evidence, either on paper or in any other format, to prove that the document has remained unchanged since the date of its creation, which date must moreover be contemporaneous to the events in question. Proof of an electronic document’s integrity can be established by a computer specialist or by means of a printed copy of the document if that printed copy is dated, provided that the print date, too, is contemporaneous to the events reported.
In Ville de Mont-Royale v. Saleh,3 one of the parties supported his testimony by filing personal notes, handwritten on paper, summarizing phone conversations, emails and meetings. The ATQ accepted these personal notes because the evidence established that they were contemporaneous to the events reported. The witness had printed the emails as well as the meeting agendas and had added notes, taking pains to indicate the date of the notes, to list the persons who were there and to include his initials.
In turn, the other party wanted to testify using its personal notes. These had been collated by computer and were printed for the purposes of the hearing, and they summarized the facts in dispute. When an objection was raised over the use of these notes, the ATQ ruled the evidence to be insufficient as far as their contemporaneity was concerned, being unable to confirm the date on which the notes were generated. Furthermore, because the notes originated from an electronic medium, it was impossible in this particular case to prove the document’s integrity had been maintained. The objection was sustained and the witness was unable to use its personal notes to testify.
The usefulness of personal notes during the testimony of witnesses representing employers cannot be underestimated. They are a great help to testimony: they can refresh memories, improve a deponent’s credibility, help establish the chronology and substance of facts and much more. So, not only is it important to implement a document management and retention system, it is imperative to take appropriate measures on a daily basis, such as recording the date on which notes were taken as well as who was present during the noted events or conversations, to ensure that those notes can be used when needed.
