Thursday, July 18, 2013

Documentary Evidence in Civil Matters

Documentary evidence poses a major challenge for the Courts. This is especially so for civil cases – often trials for these matters are conducted with a focus on the substantive issues and without a focus on how things are to be proven. As a result evidentiary issues relating to proof of documents can be overlooked.

Prior to admission all documents must be authenticated and established as relevant.

Authentication, that is proving the document is what it purports to be, seldom poses an issue. A person who made or received the document can say it is, in fact, for example, a letter sent or received. Similarly a document found among records can be authenticated as being a record by someone in control of the records who can testify as to where it was found. One of the most important functions of the discovery process is to establish authenticity of documents; failing that a request to admit pursuant to Rule 51.02 can be used to establish authenticity before trial.

Relevance is similarly seldom an issue – does the document relate to an issue in dispute? If yes, then it is relevant.

Normally the problem with documents is hearsay.

Hearsay evidence is (1) any out of court assertion; (2) repeated in Court; (3) to prove the truth of that assertion. The classic formulation of hearsay is in Subramanian v. Public Prosecutor ((1956), 1 WLR 965, 970 (P.C.)) where Court holds:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact it was made.

Similarly, the Supreme Court of Canada has ruled (R v. Khelawon, 2006 SCC 57 para 35) the defining features of hearsay are :

The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant.

In the rare case where a document is produced to prove something other than its truth, say to prove only a state of mind, the document is admissible on authentication and relevance being shown.

Most commonly documents are adduced to prove the truth of their contents. In such cases, beyond authentication and relevance some exception to the hearsay rule must be found if the hearsay document is to be considered by the Court.

Starting with the decision in R. v Khan [1990] 2 S.C.R. 531 (see also R v Smith [1992] 2 SCR 915; R v U, [1995] 3 SCR 764; R v Rockey, [1996] 3 SCR 829) and continuing through to Starr [2000] 2 SCR 144, the Supreme Court has adopted what it calls a principled approach to hearsay evidence. Under the principled approach, evidence may be admitted, though hearsay, if it is necessity and reliable. The principled approach recognises that the dangers hearsay evidence attracts are not always present and, in specific cases, hearsay evidence is just as good a basis for judicial decision making as sworn and cross-examined testimony. Additionally, hearsay evidence may be admissible if a traditional exception to the hearsay rule applies.

The principled approach can, in theory, apply to allow a necessary and reliable document to be admitted, however, to admit a document on that basis requires extensive testimony as to why no other evidence is available and why this document has circumstantial indicia of trustworthiness – so a traditional exception is more practical.

Likely the most important exception for production of documents which are hearsay is the business records exception. There is a statutory exception to the hearsay rule and a common law exception. If either of these two exceptions apply the document is admissible. An important point to emphasize is that the conditions precedent to admission must be established by evidence – it is not sufficient to say the document is a business record; it must be proven to be such. In Tarion Warranty Corporation v. Boros, 2013 ONCA 263 the Court of Appeal notes that business records are not admissible hearsay unless there is proof that they are, in fact, business records:

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

Evidence must be led to show a document is a business record.

Section 35 of the Ontario Evidence Act is the statutory provision allowing the admission of business records. Seven days’ notice must be given and only records kept as part of the ordinary course of business are admissible. Records generated during an investigation (for example police notes) are not made in the ordinary course of business and cannot fall within this exception: R. v. Fowler (1982), 2 C.C.C. (3d) 227. Similarly, business records do not include opinions or recommendations – those must be proven otherwise: Augustine v. Inco, 2006 CanLii 21783.

Section 35 provides:

35. (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).

At common law a business record is admissible to prove the truth of its contents if:

1. it was made at or near the time of the matter recorded;

2. it was made by someone with a person with personal knowledge of the matter recorded and whose position obliged them to record the information; and

3. it was made in the ordinary course of business (See, for example, Cargil Grain v Davie [1977] 1 SCR 569)

Business records are admissible as an exception to the hearsay rule if the common law principles apply. Palter v Great West [1936] O.R. 341 is a fairly typical business record case. A doctor made a physical exam and took some notes and then died. Obviously the doctor could not testify; the Court had to determine if the notes were admissible? In finding the notes admissible the Court noted they were made (1) at the time of the exam, or thereabouts, (2) by the doctor personally, and (3) in the ordinary course of a medical practice. The Court referred, with approval to a statement in Halsbury’s:

...the statement must (1) relate to some act or transaction performed by the person making it in the ordinary course of his business and duty; (2) be made in the ordinary course of his business under a duty to make it; and (3) be made at or near the time at which the act or transaction to which it relates was performed.

The Supreme Court in Ares v. Venner [1970] S.C.R. 608 comments:

(business records) made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.

Note the availability, or unavailability, of the person making the record is not important - - the exception applies regardless.

Another significant exception to the hearsay rule related to documents is medical reports. Broadly put, and subject to discretion of the Court to allow for viva voce testimony, a medical practitioner’s report will be admissible to prove the truth of its contents. Again, as with business records, it is of considerable importance that the conditions precedent to the admission of the medical reports be complied with; absent compliance there is no basis for admission. As the Court noted in Huron-Perth Children’s Aid Society v. C.H., 2007 ONCJ 744:

There is no proof of their contents, no proof of their being business records, no proof of their being medical records, so they are not only inadmissible; they are irrelevant.

The Ontario Evidence Act provides:

Reports and evidence of practitioners


52. (1) In this section,

“practitioner” means,

(a) a member of a College as defined in subsection 1 (1) of the Regulated Health Professions Act, 1991,

(b) a drugless practitioner registered under the Drugless Practitioners Act,

(c) a person licensed or registered to practise in another part of Canada under an Act that is similar to an Act referred to in clause (a) or (b).

Medical reports

(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action.


(3) Unless otherwise ordered by the court, a party to an action is entitled, at the time that notice is given under subsection (2), to a copy of the report together with any other report of the practitioner that relates to the action.

Report required

(4) Except by leave of the judge presiding at the trial, a practitioner who signs a report with respect to a party shall not give evidence at the trial unless the report is given to all other parties in accordance with subsection (2).

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