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Evidence - Business Records [EA s.35 (Ont)]. 1814219 Ontario Inc. v. 2225955 Ontario Ltd.
In 1814219 Ontario Inc. v. 2225955 Ontario Ltd. (Div Court, 2024) the Divisional Court considered the business records exception [Evidence Act, s.35] to the hearsay exclusion rule, here where many of the "witnesses swore affidavits to serve as their evidence in chief" but where one party lodged a business records 'objection':The Business Record Evidence
[23] Near the beginning of the Decision, at para. 6, Vallee J. addressed the agreement between the parties on how the trial evidence went in. She stated:[6] Many of the witnesses swore affidavits to serve as their evidence in chief. Even though the four actions were tried together, by agreement of the parties, each witness testified only once. Any party could have made a request to recall a witness. None did. [24] This agreement affected how the trial proceeded and what is now a focus on appeal. The case had been subject to significant case management. UM, Murdocca, and Waldorf Corporation had all served and filed business records notices under s. 35 of the Evidence Act, R.S.O. 1990 c. E 23 (“the Evidence Act”) on 222 before trial. 222 filed an objection. Essentially, 222 required each of the Respondents to prove everything contained in the business records notice. Accordingly, the trial involved hundreds of pages of business records plus viva voce testimony and affidavit evidence from 18 witnesses. This was addressed at paras. 9–10 of the Decision, where Vallee J. stated the following:[9] Prior to trial, UM, Murdocca and Waldorf served business records notices on 222. They were opposed. The Notice of Intention to Dispute stated that 222, Daytona Auto Centre, Alex Armellin and John Duca, [ ... ] intend to dispute the correctness, genuineness or authenticity of documents sought to be admitted and relied upon by the producing parties, below, pursuant to section 35 of the Evidence Act, R.S.O. 1990 c.E.23, as amended. The objecting parties require the producing parties to call evidence to prove the correctness, genuineness or authenticity of said document, which include but are not limited to documents produced by affidavits of document, pursuant to court order, or produced pursuant to undertakings.
[10] This trial involved hundreds of pages of business records. UM and Murdocca and Waldorf had to prove the work done, the materials supplied and the related invoices through viva voce evidence. This consumed many trial days. For this reason, and because there are several sets of invoices, the dates of which are interwoven as the project progressed, the dates of various events, the dates of the invoices and the evidence of the witnesses regarding the events and the invoices is set out below in detail in chronological order. ....
[37] The Appellants submit that because they filed objections to the Documents, the Respondents were required to call the actual truck drivers who did the work to testify. I disagree.
[38] Section 35 [SS: business records notice] of the Evidence Act is not a complete code for determining the admissibility of documents. Instead, it provides a process for facilitating the admissibility of business records. It creates an exception to the rule against the acceptance of hearsay. Simply filing an objection to an Evidence Act notice does not automatically create or require a process that only permits the admissibility of documents in one manner. In this case, which was the subject of significant pretrial case management and where issues about the introduction of documents had been addressed, the filing of an objection led to a process where documents were entered through viva voce testimony.
[39] The principled approach to hearsay supplements what was historically an exclusively rules-based approach by permitting a Court to consider hearsay evidence on the basis of its necessity and reliability. This principled approach to hearsay is founded on the idea that evidence which is relevant and material should be admissible.
[40] On their face, all the Documents are business records. If tendered for the truth of their contents without proof from the writer at first instance, they are hearsay. This is a practical problem that is not new.
[41] In my view, the Appellants’ submission that the trial judge committed a reversible error by admitting hearsay evidence has no merit. It would have been a monumental waste of the court’s time to require the actual truck drivers who did the work to testify.
[42] Focusing on the Appellants’ reliance on Exhibits 4 and 5 demonstrates the unnecessary rigidity and unpersuasive aspect of their approach to Issue 1. These exhibits were trucking tickets submitted by drivers as proof they moved loads of material from point A to point B. They are important to the drivers and the payors because they are the basis for remuneration with respect to the specific transactions at issue. However, these are day to day, voluminous type records. Courts should not be unnecessarily dragged into the minutiae of inquiries of this nature when there are live witnesses available to testify that they received documents, knew what they were, and that they caused a corresponding action relevant to the matters at issue at the trial. This is what happened with the introduction of this evidence before Vallee J.
[43] Upon review of the record and the Decision, it is clear that Vallee J. was alive to the possible hearsay problems caused by admitting the Documents into evidence. However, the Documents were introduced through live witnesses whose independent recollection of the events and charges was evident. This meant the evidence was reliable. Vallee J. was entitled to rely on the principled approach to hearsay to admit the Documents into evidence. . 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 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. . Girao v. Cunningham
The case of Girao v. Cunningham (Ont CA, 2020) is a remarkable ruling. That it had to be written this way is an embarrassment to the legal profession. It should be read by any litigation lawyer, especially those practicing MVA litigation, as a salutory lesson in dealing with self-representing parties. On it's face it was an appeal of an MVA tort jury award, but the Court of Appeal took the oppourtunity to review numerous (sadly, necessary) basics of civil litigation. Dealing at trial with a self-represented plaintiff who relied on a Spanish interpreter throughout, the Court of Appeal used defence behaviour as object lessons in why these legal principles are important and in the end, took the unusual step of ordering a new trial from scratch [paras 7, 173-174].
I'll go through the legal principles one by one as per topic, here the principles governing business record [s.35] and medical report [s.52] evidence under the Evidence Act:(b) The Governing Principles Regarding the Evidence Act
[42] Dr. Sanchez’s letter was adduced by the defence in order to substantiate its theory that the appellant was suffering before the accident from the same mental problems that she manifested after the accident. The defence wanted to rely on the words of Dr. Sanchez’s opinion as being true. This would be to use Dr. Sanchez’s statement for the truth of its content, making it hearsay evidence. Hearsay evidence “is presumptively inadmissible because – in the absence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact to assess its truth”: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 1.
[43] There are certain exceptions to the hearsay rule under which a statement may be adduced for its truth value. Two such exceptions, hedged about with additional protections, are found in ss. 35 and 52 of the Evidence Act.
[44] Section 35 of the Evidence Act relates to business records. If a record is made “in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act,” then the record is admissible as evidence of such act: s. 35(2).
[45] Section 52 of the Evidence Act relates to medical reports and is more expansive than s. 35. It permits the court to allow the report to be admitted into evidence without the need to call the practitioner. The opinion can then be accepted for the truth of its contents. However, the trial judge must, at the request of a party, oblige the medical practitioner to testify in order to permit cross-examination. See Kapulica v. Dumancic, 1968 CanLII 419 (ON CA), [1968] 2 O.R. 438 (C.A.); Reimer v. Thivierge, 1999 CanLII 9303 (ON CA), [1999] 46 O.R. (3d) 309, at paras. 12-15; see also Doran v. Melhado, 2015 ONSC 2845. See generally Michelle Fuerst, Mary Anne Sanderson, and Donald Ferguson, Ontario Courtroom Procedure, 4th ed. (Toronto: Lexis Nexis Canada, 2016), c. 41.
[46] The respective roles of the two sections have been distinguished in several cases. Section 35 is not a proper basis on which to admit opinion evidence. In Westerhof, Simmons J.A. said, at para. 103:Because these reports were tendered under s. 35 of the Evidence Act, the opinions concerning causation were not admissible for the truth of their contents: Robb Estate v. Canadian Red Cross Society (2001), 2001 CanLII 24138 (ON CA), 152 O.A.C. 60 (Ont. C.A.), at para. 152; McGregor v. Crossland, [[1994] O.J. No. 310] 1994 CanLII 388 (Ont. C.A.) at para. 3. Further, the appeal record contains no indication that notice was served for the admission of these reports under s. 52 of the Evidence Act. [Emphasis added.] [47] In Robb Estate v. Canadian Red Cross Society (2001), 2001 CanLII 24138 (ON CA), 152 O.A.C. 60 (Ont. C.A.), the court noted, at para. 152: “Section 52 differs from s. 35 in that it permits the admission of opinions and diagnoses contained in medical reports signed and prepared by qualified practitioners… Section 52 was designed as an alternative to oral testimony.”
[48] In McGregor v. Crossland, [1994] O.J. No. 310 (Ont. C.A.) the court noted, at para. 3:We do not think that the diagnosis … is admissible under s. 35. It does not relate to “any act, transaction, occurrence or event”. If the notes were to be admissible at all this would have had to have been under s. 52 of the Evidence Act.
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