The answer is that it appears they can be either or both, but until Saturley v CIBC World Markets Inc, 2012 NSSC 226, there has been precious little judicial discussion of the point. CIBC tendered electronic trading records as a defence to Saturley’s wrongful dismissal claim and in support of its contention that he had traded without proper authority. Saturley argued that the records should be treated as documents.
Why does it matter? Real evidence – like a photograph or a physical object – simply needs to be authenticated. The trier of fact then draws whatever inferences are appropriate. If electronic records are treated as documents, authentication is also required – but in addition, the best evidence rule may require the production of the original of the document and, where third-party information is present, the hearsay rule will apply. Relying on academic commentary and some older case law, Wood J of the Nova Scotia trial court found that the records in question could be treated as real evidence because they consisted of data that had been captured automatically by CIBC computer system, without human intervention. Admission of the evidence would be subject to questions about its reliability and to confirmation that it came from its purported source. If the records fail the tests for admission as real evidence, they may still be admissible as documentary evidence. A record could be both real and documentary evidence. The records in question met the test to be considered real evidence and for admissibility.
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