'Subject to proof' dangerous

Degennaro v. Oakville Trafalgar Memorial Hospital, 2011 ONCA 319, released today online, shows the dangers of not being clear whether documents are submitted as evidence or 'subject to proof'. Failing to be clear can lead to an error and, in this case, a meritorious appeal:

[32]         There is merit to the appellants' submission. It is not unusual for counsel, at the outset of a civil trial, to mark one or more volumes of bound documents as exhibits. These are normally marked as exhibits subject to proof. This will often allow for a better and more orderly management of the exhibits filed at trial. This case highlights the importance of ensuring that, at the conclusion of the trial, the status of the many documents contained in those volumes is clear (i.e. whether they have been proven and can be relied on by the trial judge in reaching a decision). This is particularly so where, as in this case, they are referred to and relied on in final submissions and they are critical to the quantification of the claim for costs of future care. It is the failure to clearly agree on the status of the Wiega and Vegotsky reports that has, in the present case, given rise to confusion as to their evidentiary value and the use to which they could be put in assessing damages.