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Admissibility of Documents at Trial – Medical and Business Records

When preparing your Affidavit of Documents or preparing for Trial it is important to consider two categories of documents that are a great help in proving your case:Medical Reports and Business Records.

Business Records – S.35 of the Evidence Act

 This section provides a statutory exception to the Rule against allowing Hearsay Evidence (out of Court statements made by a Third Party).  The Rule allows the Court to accept into evidence business records which are kept in the ordinary course of business, for example hospital records.

The section provides that business records include information recorded or stored by means of any device (obviously including computers).  These documents are writings or records made of any act, transaction, occurrence or event.  The evidence of such transaction or occurrence is therefore accepted if the record documenting such transaction, occurrence or record was made in the ordinary course of business and if it was in the “usual and ordinary course of business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter”.

Aside from providing seven days notice of an intention to file such record, the record then becomes evidence without calling the original draft of the document to prove the transaction, occurrence or  event that is recorded therein.  This can save tremendous amounts of time.  Imagine having to call all of the doctors, nurses and other hospital staff who annotate hospital records rather than just filing the records as proof of the various events described therein.

Fortunately the leading case of Setak Computer Services  Corp vs Burrows Business Machines Ltd. (1977) 15 O.R. (2d) 750 (Ont. H.C.), which is the leading case in Ontario on this form of documentary admission, confirms that the Court is to take a very broad view of what falls within these classes of documents as the statute is remedial legislation.

The criteria for admissibility under S.35 is to find in Setak as being as follows:

1.         the record must be made in the usual add ordinary course of business and it must be the usual and ordinary course of business to make such a writing or record;

2.         the record must be made contemporaneously or within a reasonable time thereafter of the events recorded;

3.         only the facts can be admitted although Ares vs Venner allows some opinion evidence e.g. an interpretation of the colour of someone’s skin colour which is debatably opinion evidence.  Generally however opinion evidence won’t be allowed in through business records.

While the Setak decision has been modified in R. vs Felderhof, 2003 CanLII 37346 (ON CA); 2003 CanLII 41569 (ON SC) it is in essence still the same test.

Clients should be encouraged to read the business records in detail.  This is particularly true of hospital records where there may be inaccurate medical histories recorded by the staff at the hospital.  In addition, there may be inaccuracies in the information that is recorded as having been said by the client.  A careful review by the client of these statements can help to prepare for potentially embarrassing cross-examination if there are some fundamental errors recorded.  In addition, counsel may be able to object to the admissibility as, even though the hospital record is prima face admissible, damaging evidence of inaccurate liability history is heresay and should be redacted as inadmissible unless the information came from an informant acting in the usual and ordinary course of business.

There is substantial caselaw confirming that portions of business records should be excluded from evidence.  In Adderley vs. Bremner, [19681 1 O.R. 621 (Ont. H.C.)]the Court excluded a chronology of events which excluded the patient’s admission to hospital contained in the Summary Sheet of the hospital.  Statements of opinion, diagnosis or impression were also excluded.

It is important to remember that hospital records or other business records can be used for the purpose of enabling any witness to refresh his or her memory.

Medical Reports – S.52 of the Evidence Act

This section allows the filing of medical reports without having to call the doctor. Defence counsel can given notice that they wish to cross-examine the physician who wrote the report.

To be admissible for the opinion and facts contained therein the report must be served 10 days before the Trial.

Except with the leave of the Trial Judge the doctor is then not permitted to give evidence if the report is filed rather than calling the doctor.

All of the medical reports from that particular physician must be served and filed with the Court if counsel intends to utilize S.52.  Counsel cannot pick and choose which reports they wish to file.

Counsel who files a report or reports on behalf of a medical practitioner has the responsibility of bringing that practitioner to Court for cross-examination if requested by opposing counsel. Confusion  can be had where opposing counsel decides to use the opposite party’s medical reports by filing them.  The Court may not allow the party who originally obtained the reports to cross-examine the medical practitioner in these circumstances [see Reimer vs Thivierge, 1999 CanLII 9303 (ON CA)].

The party filing the report is responsible for any costs associated with making the physician available in Court including transportation costs.