Dec 2, 2014

“Business Records” exception to Hearsay in the Ontario Evidence Act

Robb v. St. Joseph's Health Care Centre, 1999 CanLII 14893 (ON SC)

The Ontario Evidence Act (OEA) provides a “business records” exception to the traditional rule against hearsay in section 35. It allows you to file documents for your case that have been produced or created while in an ordinary course of business even if the document presents information that would traditionally be deemed hearsay. Specifically, s. 35(2) provides; “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 sure writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.”

What are the elements for filing documents as business records under s.35 of the Ontario Evidence Act?

The principles of s. 35 are set out in Robb v. St. Joseph’s Health Care Centre[1]:

1. The record or writing must be made in the usual and ordinary course of business as opposed to some purely private or personal activity;

2. The record or writing must have been made at the time of the event or within a reasonable time of the event;

3 The circumstances surrounding the making of the document affects weight rather than admissibility;

4. The documents, if created pursuant to a regular business duty, are presumed to be reliable;

5. The policy consideration behind s. 35…is to assist in the proof of an event on the assumption that the document which records or refers to the event is trustworthy and, depending on the circumstances surrounding the creation of the document, prima facie proof of the facts recorded therein; and

6. The mere fact that a document is in the possession of a party does not cloak the document with proof of the truth of its contents.

Thus, applying those principles, the test to be met for the admissibility of business records pursuant to subsection 35(2) OEA is: (1) be made in the usual and ordinary course of business; (2) the record must be of an act, transaction, occurrence or event; and (3) the record must be made contemporaneous with the act recorded or within a reasonable time thereafter.

In order to meet the first branch of the test, two criteria must be met: (1) the record must have been made in the usual and ordinary course of business; (2) it was in the usual and ordinary course of the business to make such writing. Jurisprudence surrounding this test illustrates that the latter qualification poses the most challenging criteria to meet. Therefore, notwithstanding that documents may be made in the usual and ordinary course of business, if it is not the business custom of the activity or operations to maintain such a record, the documents are inadmissible.

The courts have adopted a more analytical approach to business document production. In Felderhof[2], the justice broke down the legislative intent to help clarify the conditions that need to be met for a document to be considered a business record. Justice Hryn dealt with the parties confusion of interpreting the meaning of s.35 (2) by listing eight requirements for the convenience of analysis that closely mirror those found in Robb:

1)Record made on some regular basis, routinely, systematically

2)Of an act, transaction, occurrence or event,

3)And not of opinion, diagnosis, impression, history, summary or recommendation

4)Made in the usual and ordinary course of business

5)If it was in the usual and ordinary course of such business to make such record,

6)Pursuant to a business duty,

7)At the time of such act or within a reasonable time,

8)And where the record contains hearsay, both the make and informant must be acting in the usual and ordinary course of business

This approach to the analysis has been adapted and applied to best help the court determine if such records meet the threshold of the business exception. The same analysis was used in the recent case of Metalore[3] determining if documents submitted by the Crown from the Ministry of Natural resources were deemed to be business documents, which was confirmed and followed. As confusing as the jurisprudence can be, following the wording of the legislation and applying the eight steps from Felderhof seem to get the most accurate determination of documents for the courts.

How does a court interpret the documents authenticity; is there a need for a witness to testify on the authenticity of the documents?

The simplicity of this provision allows the document to be authenticated once the criteria in the statue are met. The court is not put in a fact-finding exercise to authenticate the documents. The legislation was written to allow such business documents to be admitted to a proceeding because if they had been created in a business setting then in that course of business they would be considered to be authentic.

The content of the legislation is that documents generated which are relied upon routinely for accuracy ought to be admitted without having to call the author or originator of the document[4]. It is up to the opposing side to bring a motion to rebut the authenticity of such documents, with proof that they do not meet the criteria of s. 35 (2). The courts are only then instructed to carry out a fact finding and authentication process. As long as the side producing the documents can show that the creation of the document was done along the guidelines of the legislation, then a court cannot interfere with admitting them, as long as they are relevant to the action.

If accepted under the conditions for business documents, how are the contents of the documents clarified or refuted to the court?

The "business record" exception creates a test that ensures a certain degree of reliability for first-hand hearsay. However, this does not preclude the opposing party from leading evidence to show that the evidence is in fact so fundamentally unreliable that it would be prejudicial to admit it[5]. Opposing parties can motion to have the documents removed from the proceedings because they did not meet the criteria[6].

If after serving the application and both parties agree to the documents for admission, it seems as though they would be admitted for the truth of their contents. If either side are to oppose the production of such documents as not created during the course of business, then as stated above; it is up to the parties to not consent to the notice, and then to motion to challenge the authenticity of the document.

The legislation has a built in safe guard for lack of material knowledge at the time. One of the main qualifying factors of the legislation is that the document admitted needs to be created in or around the time of the incident it is recording, but the recorder may have had a lack of personal knowledge of the situation. S. 35 (4) allow the document to still be admissible as long as it meets the conditions of s. 35 (2). The court then may gain a discretionary power to affect the weight given in relying on such a document. This also applies if the opposing side attack the content of the document, instead of being set aside the court can be guided not to place such weight on a document.

Consideration should be given to the types of documents admitted under this exception, and an exercise of relevance should be carried out to best serve the issues of the case at hand. Records that have opinion and speculation would be deemed inadmissible, and these types of documents should be deleted from a request to admit. There is the ability for judicial interpretation of the documents submitted to allow different weight or reliance on the content, there wording regarding truth of the contents should not be taken as a literal meaning of truth of the material facts. The jurisprudence signals for a cautionary approach to admitting these types of documents with hearsay, and allows the parties to make reliable decisions on the information they are planning to submit to the courts.

[1] [1999] O.J. No. 523

[2] [2005] O.J. No 4151 at para 27

[3] [2012] O.J. No. 3771 at para 133-192

[4] [2012] O.J. No. 3771 at para 44.

[5] Children’s Aid Society of Toronto v. L.L. [2010] O.J. No.686

[6] O’brien v. Shantz [1998] O.J. No. 4072