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Evidence - Documentary - Trial Practice for Admission

Evidence - Documentary - Medical Reports are not Business Records

Blake v Dominion of Canada General Insurance Company (Ont CA, 2015)

In this case the Court of Appeal commented on several 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.

......

[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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