The case involved an “underlying claim” against an individual who was alleged to have “used profanities and displayed aggressive behaviour when interacting with staff at the West Kelowna office of the Ministry of Social Development and Poverty Reduction”. The ministry obtained a default judgment for nuisance and trespass and was seeking, as a remedy, a permanent injunction, which the court described as follows: “The purpose of the injunction was to prevent Mr. Choquette from intimidating or interfering with staff. However, if granted, the injunction also would have permanently barred Mr. Choquette from attending at the Ministry offices without prior authorization or communicating with staff except through a third party”.

The ministry relied on several incident reports written by its staff members to support its application for the permanent injunction. As the court noted, “the basis of the judge’s refusal to grant the injunction was that the incident reports tendered by the Province in support of its application were inadmissible hearsay evidence”. The court summarized the ministry’s argument on appeal by noting:

the Province submits the judge erred in law holding that to be admissible, documents which satisfy the criteria in s. 42 of the Evidence Act also have to satisfy the criteria of necessity and reliability under the principled approach to the hearsay rule. In effect, the Province contends the judge applied a two-stage process. It says the judge erred in doing so given the absence of any grounding for such a requirement in the text, context or purpose of the Evidence Act, which it submits is part of the necessary analysis under the modern approach to statutory interpretation. Based on this alleged error, the Province asks this Court to substitute its discretion for that of the judge below, and to grant the remedy of a permanent injunction

But the court rejected this argument: “In my view, the judge did not in fact apply a two-stage process. Reading his reasons as a whole, it is apparent the judge appropriately incorporated reliability considerations into his analysis of whether the admissibility requirements of s. 42 were met”. As the court explained:

In my view, reading the Chambers Reasons as a whole, the judge concluded the second requirement was not satisfied. I note, for example, the judge’s concern regarding “the purpose the information [was] recorded for” and the potential motivations of the employees to record notes for the purpose of supporting further action being taken by the Province. This indicates the judge was concerned the statements in the IRT entries concerning Mr. Choquette’s behaviour were not recorded in the usual and ordinary course of the business. Rather, they were in anticipation of action to be taken by the Province against Mr. Choquette, potentially engaging the concerns that animate s. 42(4). [bracketed text in original]

But the court also—in addition to evidentiary rules regarding hearsay—expressed concerns about the scope of the permanent injunction requested by the ministry:

[28]      The overall context of the judge’s assessment of the evidence was the Province’s application for a permanent injunction of wide scope. This is an extraordinary remedy, as noted in a number of authorities cited by the judge, including: NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46; Grosz v. Guo, 2020 BCSC 997; and Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc., 2022 BCSC 15, varied on other grounds 2024 BCCA 62.

[29]      The terms of the order sought by the Province would impose a lifetime ban on a person from seeking to personally access social services from a government office. This was a very broad remedy. The judge’s decision to decline to grant such a broad injunction was a discretionary decision. Even if this Court were to find that the judge erred in not admitting the IRT records, I would nevertheless not exercise discretion to impose the broad remedy sought by the Province.

In the result, the appeal was dismissed.

The post Reliance on hearsay, breadth of order lead BC Court of Appeal to deny ministry’s request for a permanent injunction first appeared on British Columbia Law Institute.