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Civil Litigation - Document Briefs

. Blake v Dominion of Canada General Insurance Company

In Blake v Dominion of Canada General Insurance Company (Ont CA, 2015) the Court of Appeal commented on several Evidence Act issues usefully as follows.

Firstly, on the practice for admitting extensive documentation at trial:
[53] Parties frequently use comprehensive document briefs in civil trials. As this court stated in Iannarella v. Corbett:[9]
It is commonplace in civil actions for counsel to prepare a trial document brief containing documents that are admitted as authentic and admissible. See John Sopinka, The Trial of an Action, 2nd ed. (Markham: LexisNexis, 1998) at pp. 41-42. Counsel typically agree on a list of documents and one party attends to the brief’s preparation.
[54] When a document brief is tendered at trial, the record should reflect clearly the use the parties may make of it. Such use may range from the binder’s acting merely as a convenient repository of documents, each of which must be proved in the ordinary way, through an agreement about the authenticity of the documents, all the way to an agreement that the documents can be taken as proof of the truth of their contents. Absent an agreement by the parties on the permitted use of a document brief, the trial judge should make an early ruling about its use.

[55] In his case, the trial judge clearly indicated at the commencement of the trial that that he would not treat a document contained in exhibit 1 as admitted evidence for his consideration unless a witness had referred to it or the document was admitted on consent. In my view, that was adequate notice to counsel that absent an agreement about a document, it would have to be proved in the ordinary course through a witness.

....

[60] Moreover, in his ruling the trial judge followed this court’s decision in O’Brien, which held that merely filing a large volume of records – in that case, the contents of a party’s Workers’ Compensation Board file – pursuant to notice given under s. 35 of the Evidence Act, without more, was insufficient to establish the truth of the contents of each document in the voluminous file. Absent express agreement by opposing counsel to the use of large sets of documents for the truth of their contents, the tendering party would have to lead evidence about the nature of the records or the circumstances in which they were created.[11]
Next, on the treatment of medical reports as business records under the Evidence Act:
[59] The trial judge’s refusal to treat the Designated Assessment Centre medical assessments prepared by Drs. Garner, Ghouse, and Meloff as business records under s. 35 of the Evidence Act followed the long-established principle stated by the High Court of Justice in Adderly v. Bremner[10] that a professional medical opinion, including a diagnosis, is not an “act, transaction, occurrence or event” within the meaning of s. 35(2) of the Evidence Act.


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Last modified: 18-02-23
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