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Evidence - Business Records [EA s.35 (Ont)]. 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.
....
[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. . Okafor v. Ontario College of Teachers
In Okafor v. Ontario College of Teachers (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a teacher's appeal [under s.35(1) of the Ontario College of Teachers Act], here brought against "the decision of the Discipline Committee of the Ontario College of Teachers .... which found her guilty of professional misconduct ..." and from "the Discipline Committee’s penalty decision ... that ordered ... a five-month suspension, and costs in the amount of $60,000.00".
The court considers the business record hearsay exception [EA s.35], here respecting a school board 'investigation report':[72] Subsections 35(2) and (4) of the Evidence Act state:Where business records admissible
(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if 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, transaction, occurrence or event or within a reasonable time thereafter.
Surrounding circumstances
(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility. [73] In R. v. Felderhof, 2005 ONCJ 406, 201 C.C.C. (3d) 384, Bryn J. described eight requirements for the admission of a document as a “business record” at paras. 41-84:1.Record made on some regular basis, routinely, systematically
2.of an act, transaction, occurrence or event,
3.and not of opinion, diagnosis, impression, history, summary or recommendation
4.made in the usual and ordinary course of business
5.if it was in the usual and ordinary course of such business to make such record,
6.pursuant to a business duty
7.at the time of such act or within a reasonable time
8.and where the record contains hearsay, both the maker and informant must be acting in the usual and ordinary course of business. ....
[76] The Appellant further submits that the Discipline Committee ruled that the hearsay statements of witnesses contained in the Investigation Report were admissible for the truth of their contents as business records. However, the fact that a business record contains hearsay impacts its weight not its admissibility. In Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, leave to appeal refused [2020] S.C.C.A. No. 412, Lauwers J.A. stated at para. 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. 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. [Citations omitted.] [77] Given that Ms. Wilson and the school staff were in the usual and ordinary course of business and obliged to cooperate with the investigation, the hearsay evidence in the Investigation Report falls within the scope of the business records exception in s. 35 of the Evidence Act: The Children’s Aid Society of Ottawa-Carleton v. V.M., 2020 ONSC 221, at para. 30. The Discipline Committee was correct in law to hold as much.
[78] Additionally, even if the Investigation Report did not fall within the scope of s. 35 of the Evidence Act, s. 15 of the SPPA allows a tribunal to consider hearsay evidence, whether or not it would be admissible in court: Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481, at para. 40; Veerasingam v. Licence Appeal Tribunal, 2025 ONSC 290 (Div. Ct.), at para. 29. the Discipline Committee correctly identified that any concerns with the reliability of the hearsay in the Investigation Report can be addressed in determining how much weight to be given to it: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 115. Here, there was no reason to doubt the reliability of the evidence given by the people who were obligated to cooperate with the investigation, so the Discipline Committee would be entitled to consider the hearsay evidence under s. 15 of the SPPA: Gajewski, at para. 40; Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2024 ONSC 272, at para. 43. . Binance Holdings Limited v. Ontario Securities Commission [Charter s.8 administrative]
In Binance Holdings Limited v. Ontario Securities Commission (Ont CA, 2025) the Ontario Court of Appeal allowed joined appeals, here brought against investigative administrative "summons demanding the production of documents and, depending on how the summons is interpreted, responses to interrogatories (“information”) from Binance about its operations ...".
Here the court considers Charter s.8 privacy ['search and seizure'] in this administrative business records context:[32] Section 8 of the Charter applies if state agents undertake a “search” or “seizure” in circumstances that compromise the reasonable expectation of privacy of the Charter claimant: Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60. It is settled law that an enforceable demand for production of business records made by state agents is a “seizure” within the meaning of s. 8: British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, at paras. 59-60. It is also settled law that the holder of business records such as Binance has a reasonable expectation of privacy in the business records that are targeted by the seizure, but that this reasonable expectation of privacy is low: Branch, at para. 62.
[33] There are several reasons why Binance has only a low expectation of privacy in business records that are being compelled by a production order of the Commission, a securities regulator.
[34] First, it is widely known to those involved in trading securities that the business is closely regulated to secure investor protection, market efficiency and public confidence in the financial system: Branch, at para. 54.
[35] Second, business records tend to attract a diminished degree of privacy because they do not normally “deal with those aspects of individual identity which the right of privacy is intended to protect”: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at pp. 517-18.
[36] Third, in the context of securities trading, in order to enforce compliance with regulation, investigators need the ability to demand production of business records, even without reasonable and probable grounds or reasonable suspicion: Branch, at para. 53. And finally, the compelled production of documents is a significantly less intrusive means of obtaining documentary evidence than other alternatives: Thomson, at p. 594.
[37] As low as that expectation is, it does not mean that Binance has “no expectation of privacy” in the context of a seizure of its business records through a production order, or that “there is no limitation to the potential scope of an order to produce documents which can be validly issued”: Thomson, at p. 530. Even where there is a “very low expectation of privacy”, the ability of regulators to compel the production of documents and information is limited to terms that are fair and reasonable, because “[t]hat is what s. 8 of the Charter is all about”: A.D. Reid and A.H. Young, “Administrative Search and Seizure Under the Charter” (1985) 10 Queen’s L.J. 392, at pp. 398-400, cited with approval in R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627, at p. 646, per Wilson J.
[38] Binance’s s. 8 rights are therefore engaged by the compelled production of its business documents by the Commission through the Summons that is being challenged.
[39] I reject Binance’s supplementary claim that its reasonable expectation of privacy is heightened in this case because the demand in the Summons includes chats and texts on social media platforms which may include personal messages sent or received using these platforms. It is true that there is a higher reasonable expectation of privacy in personal documents; however, Binance has done nothing to show that any such personal messages were sent or received. Its claim that they were is a bald assertion. Moreover, I agree with the Commission that a regulated party cannot be permitted to increase the intensity of its expectation of privacy in its business platforms by allowing them to be used for personal purposes.
[40] In summary, Binance is entitled to rely upon s. 8 of the Charter to protect the modest but reasonable expectation of privacy it has in its business documents from unreasonable seizure. In general terms, s. 8 requires that: (1) the search or seizure must be authorized by law; (2) the law itself must be reasonable, and (3) the search or seizure must be carried out in a reasonable manner: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250, at para. 48. It is trite law that the criminal law standards for a reasonable search or seizure identified in Hunter v. Southam Inc., “will not usually be the appropriate standard for a determination made in an administrative or regulatory context”: Branch, at para. 52. This is primarily because of the lower expectations of privacy that operate in the regulatory context, and it is particularly true in the case of production orders for documents, which are far less intrusive than searches and seizures performed directly by state agents: Branch, at paras. 58, 60-61. . Harvie Construction Inc. v. Atlas Dewatering Corporation
In Harvie Construction Inc. v. Atlas Dewatering Corporation (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, this from a Construction Act case which held for the plaintiff for "subcontract work and for extra work done pursuant to the subcontract".
Here the court considers 'business records' issues:Issue #1: Threshold Admissibility of Business Records
[11] The Appellant argues that, in reaching her conclusions, the trial judge admitted into evidence records tendered by the Respondent that were not admissible as business records. I do not accept this submission.
[12] Subsections 35(2) and (4) of the Evidence Act, RSO 1990, c. E.23, provide:Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual course of business and if it was in the usual course of business to make such a writing or record at the time of such act, transaction, occurrence or event or within a reasonable period of time thereafter.
Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if 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, transaction, occurrence or event or within a reasonable time thereafter.
... .
The circumstances of the making of such a writing or record, including the lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility. [13] The trial judge’s reasons are replete with examples of the trial judge assessing the reliability of documents on the basis of the totality of the evidence before her: it is clear that she considered and decided the weight to be afforded records, as provided in s. 35(4) of the Evidence Act. On the threshold issue of admissibility, while the trial judge did not make express findings respecting the issues now raised on appeal, it is clear that she accepted that there was a satisfactory foundation to meet the admissibility requirements as set out in s. 35(2) of the Evidence Act. See Setak v. Burroughs Business Machines, 1977 CanLII 1184 (Ont. HCJ); R. v. Felderhof, 2005 ONCJ 406. With respect, the admissibility threshold was not the material issue here, and it is no surprise that the trial judge did not focus her attention on admissibility requirements that were clearly met, and instead devoted her attention to the weight to be attached to the evidence before her and the consequent factual findings to be made on the myriad of contested factual issues. ....
....
[14] With respect, the impugned documents were spreadsheets attached to invoices that were sent monthly by the Respondent to the Appellant. The whole point of the “business records” exception to the hearsay principle is that the “maker of the record” need not testify to them – rather, the tendering party must satisfy the test set out in the Evidence Act, as explained in Felderhof and Setak. The information set out in the spreadsheets documented work done by the Respondent, and was the subject-matter of extensive evidence – often on an item-by-item basis, as reflected by the trial judge’s analysis of the Scott Schedules placed before her by the parties. Unlike in many cases involving business records (such as, for instance, bank statements), the trial judge could, and did, assess the accuracy of these business records independently from the totality of the evidence before her, as she was entitled to do. Based on this assessment, the trial judge found both that the impugned records met the admissibility test as business records, and also that the records were “accurate and trustworthy”. I would not give effect to this ground of appeal. . Hamilton-Dawkins v. Ajax (Town)
In Hamilton-Dawkins v. Ajax (Town) (Ont Divisional Ct, 2025) the Divisional Court dismissed the plaintiff's appeal, here from a trial dismissal of an action "for damages arising from her fall on a Town of Ajax (the “Town”) sidewalk".
Here the court considers the business record 'weighing' provision [EA s.35(4)] of the Ontario Evidence Act:[23] While not disputing the admissibility ruling on appeal, the plaintiff argues that the trial judge failed to determine the weight to be given to that document and therefore erred in relying upon this document as evidence that the inspections occurred and were accurately recorded.
[24] While the Town acknowledges that the trial judge did not expressly advert to assessing the weight to be given to this evidence, his reasons at paragraphs 21 and 49 indicate that he implicitly did do so.
[25] Section 35(4) of the Evidence Act provides as follows:Surrounding circumstances
(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility. [26] We agree that it is implicit in the trial judge’s reasons that he considered the circumstances of the making of the record and the limited direct knowledge of the witness as to the training of the inspectors and the instructions that the inspectors were given. Accordingly, we are satisfied that the trial judge assessed the weight to be given to this document. As was stated in Housen, “it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence.”[6] . 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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