Friday, April 26, 2013

Business records exception to hearsay rule applies only if conditions precedent proven

Tarion Warranty Corporation v. Boros, 2013 ONCA 263 reminds us that business records are not admissible hearsay unless there is proof that they are, in fact, business records:

[2]          The issue then is the appropriate remedy. Tarion submits that the appeal should be allowed and the convictions and sentence restored. The difficulty with this remedy is that the appeal judge identified serious gaps in the evidentiary record. In particular, Tarion's case depended upon the admissibility of exhibits 1 and 2 for their truth. The fact that the investigator identified the documents and where they came from did not make them admissible for their truth absent an exception to the hearsay rule. There was no evidence led at the ex parte trial to show that the notice required by the business record provisions of s. 35 of theEvidence Act R.S.O. 1990, c. E.23 had been complied with. That section provides as follows:

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").

(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.

(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.

(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.

(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.

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