There is always an inherent danger in the admission of similar fact evidence as the alleged offender may be proven guilty of a disposition as opposed to actual evidence on the immediate issue.¹ This decision declined to admit two different forms of similar fact evidence to support allegations of sexual harassment.

Such evidence is presumptively inadmissible in a criminal or civil court and a tribunal. ²

The issue becomes more complicated as often the accusers may have collaborated with one another in advance, an issue which must be weighed by the decision maker in either admitting the evidence or determining its ultimate weigh.³

The test is described in the usual words debating the admission of questioned evidence, namely the “probative value” as opposed to the “prejudicial impact". ⁴

As noted in Bell, it becomes more inviting to admit the evidence when: ⁵

The likelihood of such a coincidence obviously becomes less and less the more people there are who make similar allegations and the more striking are the similarities in the various stories. In the end, as I have said, it is a question of degree.

A critical issue in determining the former is whether there is sufficient similarity between the proposed evidence and the immediate allegations. Such evidence ought not to be admitted if it only establishes a propensity.⁶

In applying this test, the Tribunal will look to the proximity in place and time, the extent of the similar details, the number of occurrences, the circumstances of the similar acts and the presence of any uniquely identifying events.⁷ The evidence must be cogent and have a demonstrable nexus to the issues ⁸and “striking similar". ⁹

The reason for its admission is often to determine credibility issues as the facts have often arisen in the absence of witnesses. ¹⁰

As was noted in a 2001 Ontario tribunal decision, the legislative authority of the tribunal allows greater flexibility than a common law court. ¹¹ [/efn_note] by S. 15(1) and 15(2) of the Statutory Powers Procedure Act. This being noted, the tribunal must consider the balancing of probative value and prejudice to the defence:

The above provisions of the SPPA give the Board even more flexibility in admitting “similar fact or act” evidence than a court.  Relevancy is the key in terms of the admissibility of evidence before the Board.  But it does not stop there.  Principles of natural justice dictate that prejudice to a party need also be considered.  This balancing occurs in the probative value versus prejudice assessment that occurs by any court or tribunal regarding the admissibility of similar fact evidence.

 

 

 

 

 

 

 

 

Evidence of otherwise good character is typically not allowed as not probative. ¹²