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Civil Litigation - Document Briefs. Gumbley v. Vasiliou
In Gumbley v. Vasiliou (Ont CA, 2025) the Ontario Court of Appeal dismissed a medical malpactice appeal, here brought against "trial judge’s causation finding that her breaches of the standard of care more likely than not caused Ms. Gumbley’s brain damage".
The court considers several hearsay inadmissibility exceptions (here regarding a medical clinical note written by a non-defendant doctor): the consent exception (in a document brief), the business record exception and the party admission exception:[31] However, a statement used for a hearsay purpose may be admissible if the parties agree to its admission as hearsay or if it falls within an exception to the hearsay rule. It is helpful to consider the admission of each level of hearsay in turn.
[32] The parties agreed that the documents in the Joint Brief of Documents filed at trial, including Dr. Warner’s note, could be relied upon as “evidence of such acts, transactions, occurrences or events as set out” in the documents, “[t]o the extent that the records are business records as defined by the Evidence Act”. A hospital record qualifies as a business record pursuant to s. 35 of the Evidence Act: see Barker v. Montfort Hospital, 2007 ONCA 282, 278 D.L.R. (4th) 215, at para. 27, leave to appeal refused, Barker v. Dervish, [2007] S.C.C.A. No. 299; Robitaille v. Anspor Construction Ltd. (2002), 2002 CanLII 44986 (ON CA), 161 O.A.C. 96 (C.A.), at para. 5, leave to appeal refused, [2002] S.C.C.A. No. 356; K.K. v. M.M., 2021 ONSC 3975, at para. 38, aff’d 2022 ONCA 72, 466 D.L.R. (4th) 559. In the role he assumed as most responsible physician, Dr. Warner gathered medical information that he would rely on in treating Ms. Gumbley. The critical care note dictated by Dr. Warner at 7:38 p.m. on October 10 was part of his transaction in doing so. Put simply, the note was admissible pursuant to s. 35 of the Evidence Act and the agreement of the parties as evidence that Dr. Warner had gathered information on which he would rely. The first layer of hearsay was admissible, and the trial judge was entitled to rely upon it.
[33] What, then, of the second layer of hearsay – the assertion that at “[a]round midnight, [Ms. Gumbley] required intubation because of severe respiratory acidosis and hypoxemia”? There are two bases for its admissibility, each contingent on the trial judge’s factual finding that Dr. Vasiliou was the source of the assertion that, at “[a]round midnight, [Ms. Gumbley] required intubation because of severe respiratory acidosis and hypoxemia.” I will return to this finding below.
[34] First, provided Dr. Vasiliou is the source of this information, s. 35 of the Evidence Act would permit the admission of the second layer of hearsay, at least in cases such as this. There is authority holding that double hearsay in a business record is admissible pursuant to s. 35(4) of the Evidence Act, which provides that “lack of personal knowledge by the maker” of the business record “may be shown to affect its weight, but such circumstances do not affect its admissibility”: see Parliament et al v. Conley and Park, 2019 ONSC 2951, at paras. 33-36; and L. (B.) v. Saskatchewan (Ministry of Social Services), 2012 SKCA 38, 393 Sask. R. 57, at paras. 26-29, respecting s. 50(2) of The Evidence Act, S.S. 2006, c. E-11.2, which is identical to s. 35(4) of the Ontario Evidence Act in its treatment of lack of personal knowledge by the maker of a business record. Alternatively, Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et. al. (1977), 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750, [1977] O.J. No. 2226 (H.C.), expresses a more limited approach. It holds, at para. 63, that double hearsay in a business record is admissible only when both the person making the record and the source of the double hearsay “are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event.” See also Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, at para. 61. Without question, Dr. Vasiliou was acting in the usual and ordinary course of business when instructing Dr. Warner. Apart from the opinion included in the business record, which I will address below, on either view of the law, the double hearsay contained in Dr. Warner’s note would therefore have been admissible under s. 35 of the Evidence Act, if Dr. Vasiliou is the source.
[35] The second exception to the hearsay rule that would apply if Dr. Vasiliou is the source of this information is that of a party admission, that is, acts or words of a party offered as evidence against that party: R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at para. 64. The law does not mandate exclusion of such evidence because the party found to have made the admission cannot complain about the inability to cross-examine themselves to probe its credibility or reliability: R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, [1993] S.C.J. No. 115, at para. 24. If Dr. Vasiliou is the source of the information in Dr. Warner’s note, this double hearsay would be admissible on this basis as well.
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[37] To constitute a party admission by Dr. Vasiliou as to Ms. Gumbley’s condition while in her care, it must be shown on the balance of probabilities that Dr. Vasiliou was the source of the information in Dr. Warner’s note. The same evidentiary standard applies in establishing the elements of the business record exception under s. 35 as a basis for admitting double hearsay. The trial judge was satisfied that Dr. Vasiliou was the source. Unless that finding is found to be in error, the double hearsay is admissible. The court (further) considers the business record [EA s.35] status of medical clinical notes, here regarding their opinion evidence aspect:c. Was Dr. Warner’s Hypoxemia Notation Inadmissible Opinion Evidence?
[54] Dr. Vasiliou argues that the content of Dr. Warner’s note was inadmissible opinion evidence. In her view, because Dr. Warner was not present for the intubation and had no first-hand knowledge of it, his note that “[Ms. Gumbley] required intubation because of severe respiratory acidosis and hypoxemia” was the expression of an opinion he formed. She argues that the opinion was not admissible under s. 35 of the Evidence Act, which does not allow for opinion evidence to be proved through business records, and that its admission violated the terms by which the Joint Brief of Documents was admitted into evidence, which did not allow opinion evidence to be provided through the admitted documents.
[55] Although I agree that the diagnosis (“severe respiratory acidosis and hypoxemia”) and recommended treatment (“intubation”) recorded in Dr. Warner’s note were medical opinions, I do not agree that this opinion evidence was inadmissible.
[56] I will begin with s. 35. I agree that where a hospital record contains medical opinions or diagnoses, those opinions are not admissible for the truth of their contents under the statutory business records exception: Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at paras. 46-48. Professional opinions or diagnoses are not “an act, transaction, occurrence or event” within the meaning of s. 35(2): Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165, 331 O.A.C. 48, at para. 59, citing Adderly v. Bremner, 1967 CanLII 308 (ON SC), [1968] 1 O.R. 621 (H.C.); McGregor v. Crossland, 1994 CanLII 388, [1994] O.J. No. 310 (C.A.), at para. 3.
[57] However, as I have already explained, the first layer of hearsay was not admitted as opinion evidence to prove the truth of the diagnosis and recommended treatment, but to show that this was information Dr. Warner received. The admission of the first level of hearsay does not raise opinion evidence issues and is not affected by this line of authority. In contrast, the second layer of hearsay is subject to this limit. I accept that the accuracy of the diagnosis and recommended treatment could not be proved through s. 35 of the Evidence Act.
[58] However, this second layer of hearsay, including the opinion, were properly received as a party admission made by Dr. Vasiliou, whose expertise was not in issue. Based on the trial judge’s finding that Dr. Vasiliou was the source of the medical observation that “[Ms. Gumbley] required intubation because of severe respiratory acidosis and hypoxemia,” those opinions were hers. Since she expressed these opinions, the trial judge was entitled to conclude that she held those opinions, and he was entitled to rely upon them for their truth, as expert opinions.
[59] It is not necessary for this appeal to go over the law as set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. It was determined in R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, at paras. 37-39, that no reversible error occurs if an expert offers an opinion going beyond the expertise established in the voir dire where they clearly have the expertise to offer such an opinion. The same would hold true here. I have no trouble identifying Dr. Vasiliou as a person qualified to give that opinion. She is an internist and offered medical observations in her testimony as a participant expert: Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, at paras. 60-61. She does not suggest that she was not competent to do so, and her qualifications to offer this diagnosis and treatment recommendation are obvious.
[60] As indicated, Dr. Vasiliou argues, in the alternative, that permitting the trial judge to rely on the content of Dr. Warner’s note violates the terms by which the Joint Brief of Documents was admitted into evidence, as to which the Agreed Statement of Facts provided:Where the records contain a diagnosis or statement of opinion those entries are admitted to establish the fact that the author(s) reached those diagnoses or opinions at the time, and not for the truth or accuracy of those opinions. [61] The limited use agreement was not violated. Dr. Warner’s note was admitted for the purpose of establishing the information that Dr. Warner had received. The trial judge inferred from the nature of that note and the circumstances in which it was prepared that the recorded information was provided by Dr. Vasiliou. Therefore, the record was not used as opinion evidence from Dr. Warner that “[Ms. Gumbley] required intubation because of severe respiratory acidosis and hypoxemia.” Dr. Vasiliou’s admission to that effect was not rendered inadmissible by the terms under which the Joint Brief of Documents had been submitted.
[62] This objection accordingly has no merit.
[63] As a result, there was admissible evidence before the trial judge that Ms. Gumbley was hypoxemic leading up to her intubation. His finding that her brain injury occurred in this timeframe was supported by the expert evidence before him, which I now review. . 1814219 Ontario Inc. v. 2225955 Ontario Ltd.
In 1814219 Ontario Inc. v. 2225955 Ontario Ltd. (Div Court, 2024) the Divisional Court noted cases on 'joint document books' during trial:[44] The Appellants’ reliance on the Court of Appeal decisions in Bruno v. Dacosta, 2020 ONCA 602 and Girao v. Cunningham, 2020 ONCA 260 is misplaced. In those decisions, the Court of Appeal outlined what it described as “trial practice notes” to provide guidance for handling joint document books at trial. In this matter, the Documents did not form part of a joint document book. The parties did not proceed on the assumption they were being admitted on consent. Rather, as set out above, they were admitted after witnesses identified the Documents, testified to receiving them and in some cases to paying the relevant invoices. . 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.
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[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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