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.

Bukshtynov v. McMaster University, 2019 ONCA 1027 (CanLII)

[47] 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.

[48] 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.”

[49] 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.”

[50] 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.