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Trial

. Bruno v. Dacosta

In Bruno v. Dacosta (Ont CA, 2020) the Court of Appeal took the case to express some trial practice issues that obviously bothered them:
C. Some Trial Practice Notes

[53] There were errors made in the admission and use of the joint document book that further frustrated appellate review and that should not happen in other cases. I laid out some elements of acceptable trial practice in Girao v. Cunningham, 2020 ONCA 260, at paras. 21-35. At paras. 33 and 34, I said:
In my view, counsel and the court should have addressed the following questions, which arise in every case, in considering how the documents in the joint book of documents are to be treated for trial purposes:

1. Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?

2. Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?

3. Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?

4. Are the parties able to introduce into evidence additional documents not mentioned in the document book?

5. Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?

6. Does any party object to a document in the document book, if it has not been prepared jointly?

It would be preferable if a written agreement between counsel addressing these matters were attached to the book of documents in all civil cases. In addition, it would be preferable if the trial judge and counsel went through the agreement line by line on the record to ensure that there are no misunderstandings.
[54] Even though Girao was released after the trial decision in this case, this situation presents an opportunity for further reflection on trial practice.

[55] The most obvious point, which nonetheless bears emphasis, is that any agreement between counsel as to the admissibility of documents is not automatically binding on the trial judge, who remains at all times the gatekeeper of the evidence. I now turn to the problems experienced in this case.

[56] At the opening of the trial, Mr. McKenna read the parties’ initial agreement with respect to evidence into the record:
The documents contained in the Joint Document Brief are relevant, authentic and the dates of the documents are accurately reflected on their face. Neither of the parties are to be considered as having accepted the truth of the contents of all of the documents. Further, both parties reserve their rights to challenge what is stated in the documents, lead further evidence which may or may not be inconsistent with the documents and argue as to the interpretation and weight to be given to the documents.
[57] This agreement was not helpful to the trial judge because of its ambiguity, which he should have probed immediately and carefully with some obvious questions, among them: If a document is not challenged, is its hearsay content deemed to be admitted? If not “all” documents, then which?

[58] The approach taken by counsel and permitted by the trial judge only invited further contention, which inevitably emerged. On the second day of trial, counsel for the Crown, Mr. MacLeod, attempted to enter a Niagara Regional Police Service Supplementary Report into evidence, leading to the following exchange:
Mr. McKenna: Just maybe my friend can clear – is this going in as a business record, is that sort of the basis of the admissibility of it?

Mr. MacLeod: Your Honour, this is one our productions. I don't intend to have this marked as, and go in as, a business record as an exception to the hearsay rule. It is a document. I don't think there's any issue between the parties as to its authenticity. I don't think there's any issue as to its relevance. The witness has been questioned about these events, but it does provide evidence of some objective things that were happening at this time.

Mr. McKenna: … It's the officer's document, it's not Mr. Bruno's document. It probably sounds like I'm trying to be difficult, but if we're going to deal with this piece by piece and lead to a bigger problem later on, then I'd like to deal with this issue, you know, as a whole if we can. I just don't want to be seen to be agreeing to letting records just go in and then I'm going to be faced with some argument that I didn't dispute it at this time and I'm going to be faced with the opposite argument with their actual Ministry documents. [Emphasis added.]
[59] After seven days of trial, and at the beginning of the Crown’s evidence, Mr. MacLeod stated that the parties wished to make a “further stipulation with respect to some documents” and that this new stipulation would be “in addition to what was already stipulated as the agreement between the parties.” Mr. MacLeod then read the following statement into the record:
The parties agree that the records of the Ministry of Community Safety and Correctional Services contained in the joint document brief (Exhibit 1), as well as exhibits A, B, C, F, and G are business records pursuant to Section 35 of the Evidence Act. However there is no agreement that statements recorded in these records are admissible for the truth of their contents. […] For example, for an occurrence report that states that inmate X said Y, is evidence of the fact that the statement Y made was made by inmate X, [but it is not evidence that it is true.] The standing orders of the Niagara Detention Centre and the adult institutions policies and procedures are not technically business records, but are in evidence and can be referred to by the parties when examining witnesses and in argument.
[60] This agreement is more specific than the first, but it raises problems of its own concerning the proper application and reach of s. 35 of the Evidence Act, R.S.O. 1990, c. E.23, which should have been canvassed and resolved at the outset of the trial. This last agreement came too late; it implies that the statements had to be proved by other means but, by this point, the plaintiffs had referenced and relied on numerous documents involving various degrees of hearsay.

[61] A party properly invoking s. 35 of the Evidence Act is entitled to introduce certain limited forms of double hearsay contained in business records, such as statements made and recorded by two people who are each acting in the ordinary course of business, even if those statements are ultimately accorded little weight: Evidence Act, s. 35(4); Parliament et. al. v. Conley and Park, 2019 ONSC 2951, at para. 36; Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd., et. al., 1977 CanLII 1184 (ON SC), [1977] 15 O.R. (2d) 750; [1977] O.J. No. 2226, at para. 63. In dealing with police reports and occurrence reports, however, trial judges have generally refused to admit business records in which a person, acting in the course of their duty, records unreliable third-party statements or other forms of hearsay: see for example DeGiorgio v. DeGiorgio, 2020 ONSC 1674, at paras. 50 and 54. The parties’ agreement simply stipulated that double hearsay is not admissible for the truth of its content. In my view this issue required argument and an evidentiary ruling.

[62] I add an observation about the respondents’ s. 35 Evidence Act notice. It seriously overreached and, in so doing, created the uncertainty that set the context for uncertainty about the permissible use of documents. The s. 35 notice, a copy of which this court requested after oral argument, ends with the following description under the heading “Liability Documentation”: “All other business and medical records listed in the parties’ affidavits of documents and produced subsequently in this proceeding in response to undertaking or production requests’”. The idea seems to have been to extend the s. 35 cloak to other documents as yet unidentified. As convenient as this might be, it is unacceptable trial practice and invites contention at trial over the status of individual documents, as transpired here. The rigorous approach set out in Girao as modified in these reasons is a good way to avoid such problems.

[63] As a matter of ordinary trial practice, the parties’ agreement should be entered with the joint book of documents at the earliest opportunity. In this case, the need for a timely agreement or resolution of the issues regarding documentary evidence was greater because of the unusually heavy role played by the documents. The fact that the parties felt the need to clarify their agreement so late in the game simply illustrates the inadequacy of the initial agreement and the effect of the absence of judicial scrutiny.

[64] This was a case of far too little, far too late, which left the trial judge in a quandary about the admissibility and use of the business records. This became apparent when he dealt with the factual issue of who assaulted Bruno. The appellant takes issue with the trial judge’s factual finding on the assault, at para. 36 of the decision, where he stated: “Having reviewed all the evidence including the photos of the other inmates, the video, and the records of the NDC including the report prepared by CO Tom Bradley, I am satisfied that DaCosta, Gibson, Ashenden and Empey undertook the assault.” Despite the parties’ reservation in their agreement on the hearsay value of statements in the documents, the trial judge effectively accepted the hearsay content of what was known in the trial as the “Bradley Report,” which the Crown produced. CO Bradley did not testify.

[65] This case highlights the deplorable tendency in civil cases of admitting evidence subject only to the weight to be afforded by the trial judge: “Seduced by this trend towards [evidentiary] flexibility, some judges in various jurisdictions have been tempted to rule all relevant evidence as admissible, subject to their later assessment of weight”: Teva Canada Ltd. v. Pfizer Canada Inc., 2016 FCA 161, per Stratas J.A. at para. 83. This is legal heresy, as Stratas J.A. noted, citing R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 59. I agree with his trenchant comments.

[66] Finally, as I noted in Girao, at para. 22: “The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before [the trial judge] at any moment in the course of the trial.” In this case it was necessary for this court to look at the written closing submissions of counsel to the trial judge, but they were not in the trial record. They were sent after oral argument on the appeal at our request. In my view, good trial practice is to include any written arguments in the trial record as lettered exhibits to which the appeal court can have access if necessary.
. 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 trial judge's role in supervising the documentary trial record, particularly in a jury trial:
[22] It is clear law that: “The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before [the trial judge] at any moment in the course of the trial”: 1162740 Ontario Ltd. v. Pingue, 2017 ONCA 52, 135 O.R. (3d) 792, at para. 14. This court has given instructions on the preparation and use of document briefs, for example, in Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 127-128, and in Pingue, at paras. 39-40.

[23] Any document introduced by any party that does not become a numbered exhibit should become a lettered exhibit. The important distinction between numbered exhibits and lettered exhibits is that, subject to the trial judge’s discretion, lettered exhibits do not go in with the jury during its deliberations, but numbered exhibits do: Pingue, at para. 17.

[24] As a more general observation, it is customary for experts to prepare reports, which counsel provides to the parties and to the judge. The admissible evidence of the expert is normally understood to be the oral evidence, particularly in jury trials. However, the best practice in jury trials is to make expert reports lettered exhibits in order to preserve the integrity of the trial record for the purpose of an appeal: Pingue, at para. 21.

[25] The problem in this case with the trial record went further. It is quite usual in civil actions for counsel to prepare an agreed trial document brief containing documents that are admitted as authentic and admissible. See J. Kenneth McEwan, Sopinka on the Trial of an Action, 3rd ed. (Toronto: LexisNexis, 2016) at pp. 66-72. In Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165, 331 O.A.C. 48, at para. 54, Brown J.A. emphasized the necessity of ensuring that the record reflects the document’s intended use:
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.
[26] Counsel typically agree on a list of documents and one party attends to the brief's preparation. As observed in Iannarella, at para. 128: “It is regrettably not unusual, however, for counsel to differ on the precise basis on which a document in the brief is being tendered or whether it was to have been included, as the implications materialize in the course of the trial.” Pingue stated, at para. 40:
[I]t is necessary for counsel to clarify to the court and to each other the extent to which the authenticity of each document in the proffered document brief is accepted…. If, as is too often the case, counsel has not done so, it is the trial judge’s responsibility to get the requisite clarity when the documents are made exhibits, especially concerning a document's hearsay content.
[27] This discipline of judicial oversight applies even more forcefully where one party is self-represented and the opposing lawyer prepares the brief, and in a jury trial where the brief goes into the jury room.

....

[31] Some of the medical reports favouring the appellant’s claim in the statutory accident benefits file were included in the Joint Document Brief but they were redacted by the defence in order to excise any opinion evidence favourable to Ms. Girao.

[32] I would not consider the flaws in the management of the trial record to be fatal to trial fairness in this case, but they unfairly enabled the defence’s strategy of keeping expert evidence favourable to the appellant from the jury and from the trial record.

[33] In my view, counsel and the court should have addressed the following questions, which arise in every case, in considering how the documents in the joint book of documents are to be treated for trial purposes:
1. Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?

2. Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?

3. Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?

4. Are the parties able to introduce into evidence additional documents not mentioned in the document book?

5. Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?

6. Does any party object to a document in the document book, if it has not been prepared jointly?
[34] It would be preferable if a written agreement between counsel addressing these matters were attached to the book of documents in all civil cases. In addition, it would be preferable if the trial judge and counsel went through the agreement line by line on the record to ensure that there are no misunderstandings.

[35] In my view, none of these issues or questions are novel. The answers to these questions are not implicit in the filing of a joint document book and must be expressly addressed on the record or by written agreement. The problem frequently comes because the parties have not turned their minds to the issues in sufficient detail before the document book is tendered as an exhibit. This must change as a matter of ordinary civil trial practice. Had the trial judge taken himself, counsel and Ms. Girao through this list of questions relating to the document book, some of the problems identified in these reasons could have been avoided.
. 1162740 Ontario Limited v. Pingue

In 1162740 Ontario Limited v. Pingue (Ont CA, 2017) the Court of Appeal sets out (very usefully) principles applicable to a trial judge's compilation of a trial record, including policies for what documents should be allowed into it - particularly respecting expert reports, motion records and document briefs:
[14] The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before her at any moment in the course of the trial.

[15] With respect to document management in particular, relatively little is prescribed by the Rules of Civil Procedure. Trial practices have emerged to assist judges, but they are not universally or consistently followed: see generally Michelle Fuerst and Mary Anne Sanderson, Ontario Courtroom Procedure, 4th ed. (Markham: LexisNexis, 2016), at p. 318, 325, and 328.

[16] In these reasons, I comment on two areas of lingering difficulty that affect this appeal: expert reports and motion materials.

[17] Throughout, I draw a distinction between numbered exhibits, which are governed by r. 52.04 of the Rules of Civil Procedure, and lettered exhibits, which are documents “marked for identification”: Ontario Courtroom Procedure, at p. 318, 325, and 328. The distinction is important because, subject to the trial judge’s discretion, the jury has access to the numbered exhibits, but not to the lettered exhibits: see Ontario Courtroom Procedure, at p. 759-760.

E. Expert Reports and the Trial Record

(1) The Practice

[18] Rule 53.03 of the Rules of Civil Procedure sets out the requirements for expert reports. By the time the trial starts, counsel will ordinarily have had copies of the experts’ reports from all parties for some time.

[19] Although expert reports are exchanged and form the basis for examination-in-chief and cross-examination at trial, the expert evidence before the trial court is usually the viva voce evidence of the expert, and not the report the expert provided before trial: see Ontario Courtroom Procedure, at p. 1004-1005. There is an exception, which relates to the reports of practitioners under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, the Drugless Practitioners Act, R.S.O. 1990, c. D.18 and other similar legislation in Canada, whose reports are governed by s. 52 of the Evidence Act, R.S.O. 1990, c. E.23: see Ontario Courtroom Procedure, at p. 1004-1005; and Iannarella v. Corbett, 2015 ONCA 110 (CanLII), 124 O.R. (3d) 523, at para. 131.

[20] In civil jury trials, when an expert witness is called to testify and after the witness has been qualified for that purpose, the party calling the witness usually provides a copy of the expert’s report to the trial judge. Often chunks of expert reports are effectively read into the record by the expert or are extensively paraphrased. Having a copy as an aide memoire enables the trial judge to follow along with the evidence, maintain good notes, and to deal expeditiously with questions of admissibility that might arise, such as whether the witness is impermissibly straying beyond the subject of the report. Having a copy also assists the trial judge in the preparation of the jury charge, and the reasons for decision.

[21] It is common practice for an expert report tendered by counsel to be marked as a lettered exhibit by the trial judge. That way the report will form part of the trial record, but will not be available to the jury in its deliberations: see Ontario Courtroom Procedure, at p. 1004; and Moore v. Getahun, 2015 ONCA 55 (CanLII), 124 O.R. (3d) 321, at para. 86, leave to appeal refused, [2015] S.C.C.A. No. 119.

[22] In non-jury civil trials expert reports are sometimes made numbered exhibits on consent. The practice in the Toronto Commercial List, for example, is for such reports to be made numbered exhibits.

[23] The practice of making expert reports numbered or lettered exhibits is essential to the construction of a complete trial record for appeal purposes. There should be no reluctance on the part of counsel or trial judges to doing so.

[24] I pause to note that the judicial act of accepting any document as a numbered exhibit under r. 52.04, or of converting a lettered exhibit into a numbered exhibit, has only a limited effect. Consider the example of a document that was marked for identification as a lettered exhibit. By later converting a lettered exhibit into a numbered exhibit, the trial judge is doing no more than asserting she is satisfied that the document is relevant to a fact in issue in the proceeding and has a sufficient measure of authenticity, usually provided by a witness, to warrant its inclusion in the trial record as an exhibit.

[25] I use the expression, “a measure of authenticity,” to indicate that there are degrees of authenticity. It is important for the trial judge and counsel to clarify the extent to which the authenticity of a particular document is accepted. Taking a cue from r. 51.01 of the Rules of Civil Procedure, and using its definition of “authenticity”, the trial judge and counsel must still consider the following questions:

(a) Was a document that is said to be an original printed, written, signed or executed as it purports to have been?

(b) Was a document that is said to be a copy a true copy of the original? and

(c) Where the document is a copy of a letter, telegram or telecommunication, was the original sent as it purports to have been sent and received by the person to whom it is addressed?

[26] The fact that a document is accepted as sufficiently authentic in some aspect of these particulars to warrant being made an exhibit under r. 52.04 does not mean that its ultimate authenticity or reliability has been decided. Any dispute about authenticity or reliability must be resolved on independent evidence and decided by the trier of fact. Nor does merely making a document a numbered exhibit mean that its hearsay content is admitted. I am quick to add that nothing prevents the parties from making such an admission or the trial judge from determining that the hearsay content is admissible where that is disputed.

[27] These concepts apply with necessary modifications to expert reports that are made numbered exhibits.

....

[35] With respect, it should not be necessary for an appeal court to pick through the pages of a transcript in order to ferret out precisely what the trial judge had before her in documentary form at any particular moment in time. This is why marking expert reports as numbered or as lettered exhibits for identification is the preferred practice.

[36] In my view, every document or thing put to a witness or to the trial judge as a piece of evidence should be made a numbered or lettered exhibit. I would also add this: although trial judges have discretion in whether to mark as exhibits, out-of -court statements that are used solely to impeach the credibility of a witness, for the same reasons the best practice is to mark such statements as lettered exhibits for identification, if not as numbered exhibits: Ontario Courtroom Procedure, at p. 945-946; and R. v. Betker, 1997 CanLII 1902 (ON CA), [1997] O.J. No. 1578, 115 CCC (3d) 421 at 430 (C.A.).

(3) Trial Motion Materials

[37] I focus here on formal motions that are brought at trial with motion records, affidavits, and exhibits. In this case, I understand that the formal motion material was put to the trial judge on the motion seeking leave to have Ms. Urquhart provide expert evidence. I also understand that counsel had with him a copy of Ms. Urquhart’s report, which had been provided to opposing counsel, but he did not tender it to the trial judge as part of the motion material.

[38] In my view, the motion material ought to have formed part of the trial record. Further, it was incumbent on the trial judge to request a copy of the proffered expert’s report to be marked as a lettered exhibit for identification, so that this court would have access to it in the event the trial judge’s ruling was challenged on appeal.

[39] Finally, I make an observation, in passing, on document briefs, since similar themes arise with respect to them. It is common practice for the parties in civil actions to agree upon and tender a tabbed and organized document brief at the beginning of trial. This practice is convenient and allows for a reasonably orderly development of the evidence. Ontario Courtroom Procedure notes, at p. 333: “For most documents there are no real evidentiary issues. They should be filed on consent.”

[40] However, it is necessary for counsel to clarify to the court and to each other the extent to which the authenticity of each document in the proffered document brief is accepted, as noted at para. 25 of this decision. If, as is too often the case, counsel has not done so, it is the trial judge’s responsibility to get the requisite clarity when the documents are made exhibits, especially concerning a document’s hearsay content. This court is in no position to resolve such issues on appeal: see Kiskadee Ventures Limited v. 2164017 Ontario Ltd., 2016 ONCA 955 (CanLII), at para. 19.

[41] By following these general practices, confusion about the record at trial and on appeal can be avoided.


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