Business Records (Exception to Hearsay)
Evidence Act, R.S.O. 1990, c. E.23
35 (1) In this section,
- “business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“entreprise”)
- “record” includes any information that is recorded or stored by means of any device. (“document”) R.S.O. 1990, c. E.23, s. 35 (1).
- (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. R.S.O. 1990, c. E.23, s. 35 (2).
- (3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same. R.S.O. 1990, c. E.23, s. 35 (3).
- (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. R.S.O. 1990, c. E.23, s. 35 (4).
- (5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged. R.S.O. 1990, c. E.23, s. 35 (5).
Bruno v. Dacosta, 2020 ONCA 602 (CanLII)
 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.
 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),  15 O.R. (2d) 750;  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.
 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.
DeGiorgio v. DeGiorgio, 2020 ONSC 1674 (CanLII)
 Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977) 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750 (HC) remains the foundational case in Ontario with respect to the fundamentals of the admissibility of business records. Note that Setak does not admit evidence otherwise inadmissible simply because it is in a business record. For example, expert opinions contained in a business record are not admissible as part of the business record. Nor is recorded hearsay from third parties who are not under a business duty to report the information.
 The OPS record is admitted to prove the fact that the mother attended at the police station on April 25, 2019, and to prove the acts, transactions, occurrences or events recorded in the notes during the officer’s interaction with her. The mother’s statement to the police about the argument she and the father had the day before is admissible to establish that she made the statement. The record is also admissible to establish that the mother played a recording of the argument for the officer.
 The father also wants the officer’s description of the content of the recording and of the tenor of the male voice he heard on the recording to be admitted, to prove the contents and the officer’s impression of the tenor of the male voice in the recording. The recording is not in evidence. I do not know whether it is or is not available. The officer has not deposed an affidavit that would permit him to be cross examined.
 This portion of the occurrence report is not admitted. The statements made in the recording referred to by the officer were not made by a declarant acting in the usual or ordinary course of business. They are not admissible under the principled exception because the father has not satisfied the requirement of necessity in respect to the contents of the recording. Nor is the officer’s impression that the male voice was not threatening or in high tone admissible. It falls into the category of opinion based on inadmissible second hearsay.
Bukshtynov v. McMaster University, 2019 ONCA 1027 (CanLII)
 The trial judge excluded the charts. He had concerns about their accuracy and what they reflected. As he said, his “immediate problem” was that the amounts reflected on the Rawlings’ records did not even “dovetail” with the appellant’s own calculations, something the appellant had earlier testified about.
 The trial judge also pointed out that the Rawlings’ witness confirmed that the analyst who prepared the charts appeared to inquire of the appellant whether “any of the charges” were “unrelated to the accident.” In other words, and as found by the trial judge, the analyst did not have the “necessary medical background or knowledge of the internal decisions made by either of the health insurance carriers.”
 While the trial judge acknowledged that s. 35 of the Evidence Act, R.S.O. 1990, c. E.23, allows for records made in the usual course of business to be admitted as an exception to the hearsay rule, he relied on Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977), 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750 (Sup. Ct.), to exclude the records. He found that the charts reflected nothing more than a compilation of insurance carriers’ records. While Rawlings was described as a compiler of business records, the trial judge pointed out that they engaged in that exercise “without the expertise or knowledge of what exists within the insurance providers.”
 Ultimately, the trial judge excluded the Rawlings charts on the basis that they constituted “second hand compilations” of the insurers’ records. Despite having excluded the charts, the trial judge allowed the appellant time to adduce the records of the insurance payouts from the insurance companies, even if the appellant had to call that evidence “outside the usual order in a trial”. The appellant chose not to enter those records into evidence.
- Evidence Act, R.S.O. 1990, c. E.23, <https://www.ontario.ca/laws/statute/90e23>, retrieved on 2021-02-26
- Bruno v. Dacosta, 2020 ONCA 602 (CanLII), <https://canlii.ca/t/j9sn4>, retrieved on 2021-02-26
- Parliament et al v. Conley and Park, 2019 ONSC 2951 (CanLII), <https://canlii.ca/t/j1hj8>, retrieved on 2021-02-26
- Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al., 1977 CanLII 1184 (ON SC), <https://canlii.ca/t/g1c1v>, retrieved on 2021-02-26
- DeGiorgio v. DeGiorgio, 2020 ONSC 1674 (CanLII), <https://canlii.ca/t/j5xs3>, retrieved on 2021-02-26
- Bukshtynov v. McMaster University, 2019 ONCA 1027 (CanLII), <https://canlii.ca/t/j4988>, retrieved on 2021-02-26