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Evidence - Hearsay - Double. Hugginson v. Hugginson
In Hugginson v. Hugginson (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this brought when the "application judge ordered the appellant to return the $400,000 to her stepfather’s estate and granted costs of $16,000 to the respondent", ostensibly as a failed 'gift'.
Here the court considers a business records issue [EA s.35], and considered 'double hearsay' in this context:[10] Section 35(2) of the Evidence Act provides for the admissibility of business records as follows: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. [11] It is not sufficient simply to tender the document. The party seeking admission must prove the two preconditions to admissibility of business records: (1) that the records were made in the usual and ordinary course of business and (2) that it was in the ordinary course of business to make such records at or reasonably close to the time of the act, transaction, occurrence or event referenced in the records: O’Brien v. Shantz (1998), 1998 CanLII 6260 (ON CA), 113 O.A.C. 346 (C.A.), at para. 11.
[12] The appellant did not call the investment advisor who wrote the notes, nor anyone else who could attest to the preconditions to their admissibility under the Evidence Act.
[13] While some forms of double hearsay contained in business records are admissible, such as statements made and recorded by two people each acting in the ordinary course of business, s. 35(2) of the Evidence Act does not allow for the admission of “unreliable third-party statements or other forms of hearsay”: Bruno v. Dacosta, 2020 ONCA 602, at para. 61; Gumbley v. Vasiliou, 2025 ONCA 851, at para. 34; Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et. al. (1977), 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750, at para. 63. Even if the investment advisor’s notes met the preconditions in s. 35(2) of the Evidence Act, the admissibility of a business record is premised on the fact that it is prepared by a person under a business duty, lending it reliability and accuracy. The stepfather and the appellant, whose statements were recorded in the investment advisor’s notes, had no such business duty. Accordingly, the application judge made no error in declining to admit the notes as business records.
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