Court of Appeal of Quebec

Benisty c. Kloda

April 17, 2018


Dufresne, Levesque, Healy

Appeal from a judgment of the Superior Court dismissing an action in damages. Dismissed.

The appellant brought an action against the respondent, alleging faults and omissions in the execution of his mandate as financial advisor with respect to 17 trades performed between 2004 and 2008 that resulted in financial losses. First, the trial judge allowed the respondent’s objection to the tape-recorded evidence that the appellant wished to adduce, declaring it to be inadmissible. The appellant had recorded some of his telephone conversations with the respondent on audiocassette without the latter’s knowledge, and then recorded 50 excerpts from these conversations on a compact disc (CD). The judge found that this was not a technology-based document but physical evidence, the authenticity and probative value of which had not been established. Subsequently, after analyzing the disputed trades, the judge concluded that the respondent could not be found to have committed any fault whatsoever because the trades had been authorized by the appellant.

The judge erred in finding that the cassettes did not constitute a technology-based document. Not only are magnetic media expressly referred to in s. 2(1) of the Act to establish a legal framework for information technology (CQLR, c. C-1.1), but the very intention of the legislature also leads to the conclusion that a tape-recorded statement is a technology-based document. The judge was right, however, in stating that the authenticity of the audiocassettes had to be demonstrated before they could be admitted as evidence. The handling of the evidence put forward by the appellant raises an issue in this respect. Neither the audiocassettes nor the CD that was listened to at the trial hearing is in the appeal record. The appellant adduced a new CD, and it cannot be verified whether it contains the same information as the audiocassettes because it is impossible to compare them. For the same legal value to be assigned to both the reproduction and the original, certain conditions must be met. Regarding transfers – relevant here as CDs are another medium based on a different technology – s. 17 of the Act provides that a transfer must be documented so that it may be shown, if need be, that the resulting document contains the same information as the source document and that its integrity is ensured. There is nothing in the evidence, however, demonstrating that the recordings resulting from the transfer contain the same information as the audiocassettes. Consequently, the recordings reproduced on the CD cannot be used to assess their authenticity. 

*Summary by SOQUIJ
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