Business Records (Exception to Hearsay)

Bruno v. Dacosta, 2020 ONCA 602 (CanLII)

[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.