Legal Ease, Mar. 1

Can I use emails as proof?


I recently had a case where my clients had done something very implausible.

They planned to buy a house but started renovating the property before they owned it. In the end they invested over $100,000 in the property and the transaction failed.

My clients had invested a fortune in someone else’s house!

My client’s actions seemed on the surface to make no sense at all. The judge who considered the case was very skeptical about my clients’ actions, but was ultimately convinced they actually did what they said because everything they did was documented in emails.

It was the fact that all their payments were documented in emails that made their case.

Emails are, in a sense, conversations reduced to writing. Things that were dealt with 20 years ago in a telephone call are now dealt with by email.

Telephone calls, of course, are seldom recorded, but emails are automatically preserved. What that means is that the emails can prove what actually happened.

But this also means you have to be careful in emails.

If someone sends you an email “confirming” something that never happened, you should reply promptly and say “you are confused—what actually happened was XYZ.”

Your emails should carefully reflect what you want to say and you should keep your emails—at least the ones related to business matters—so you can go back to them later if you need evidence of what happened.

Emails are admissible as evidence in court provided you can show they are what was sent and received.

An edited email is unlikely to be accepted by a judge but a full email chain is often the best proof of what happened. While emails were seen as exotic and special evidence 10 years ago, now they are just part of daily living and accepted in court as a regular event.

It is a rare civil case today that does not have some email evidence.

Facebook and text-message chats are also solid proof of what was said and what happened.

The difficulty with Facebook and text messages is that they are not as permanent as emails and they are often lost.

I recommend printing out screen shots or, better, the entire chat if it seems likely to be important to save.

Sometimes lost chats can be retrieved from the service provider—Facebook or Bell—but it’s not easy. It’s better to save what you may need later right now.

Finally, be aware that any email or chat you send can be used against you.

Be careful what you say online. Remember: what goes online is out of your control and can come back to haunt you.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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