Hearsay Evidence In Certification Applications: Some Basis In Fact, Or Truth Of Its Contents?

Romero v The Meat Shop at Pine Haven, 2022 ABKB 621 ("Romero"), provides additional guidance on the admissibility of hearsay evidence in certification applications. We briefly discussed this issue here following the decision in VLM v Dominey, 2022 ABKB 299 ("Dominey").

These cases indicate that whether evidence will be admissible for the purposes of establishing "some basis in fact" for the common issues element of certification proceedings will turn on the court's characterization of the evidence:

• Out-of-court statements tendered to prove the truth of their contents are hearsay and are ordinarily inadmissible unless an exception to the hearsay rule applies (Romero).
• Double or triple hearsay evidence that has little to no probative value is inadmissible, even during a certification application where the bar is low (Dominey).