Evidence Primer - Hull on Estates #194
Listen to: Evidence Primer - Hull on Estates #194
This week on Hull on Estates, Bianca La Neve and David Smith discuss evidentiary issues particularly the admissibility of business records.
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Bianca V. La Neve - Click here for more information on Bianca La Neve.
David Morgan Smith - Click here for more information on David Smith.
David Smith: Hello and welcome to
Welcome to
Bianca La Neve: Hi and welcome to another episode of
David Smith: And I’m David Smith.
Bianca La Neve: If you want to be heard on
David Smith: So Happy New Year, Bianca.
Bianca La Neve: Happy New Year, David.
David Smith: And of course our job today is to podcast and top of mind for both you and I was a trial we prepared for at the end of November and into December. And in particular we dealt with a lot of interesting evidentiary issues. So today we thought as our theme we would do something in the manner of an evidence law primer, specifically with regard to the admissibility of business records or documents that don’t fit within that definition. So as a starting point, what are business records?
Bianca La Neve: Well according to the case law and the various provincial and national Evidence Acts, a business usually includes every kind of business, profession, occupation, calling, operation or activity whether carried on for profit or otherwise. And a record includes any information that is recorded or stored by means of any device. So this would include electronic records now in our computer age.
David Smith: And so Bianca, if I’ve got a case where I’m a plaintiff and I want to introduce documents which appear to fit within the definition of a business record, my understanding is that you serve a Notice under the Evidence Act.
Bianca La Neve: Yeah, so in
David Smith: Right and I guess the issue in the case that we were preparing for was that the defendant who was served with the Notice of Intention under the Evidence Act took the position that the various records which we sought to introduce did not fit within the definition of business records, and more specifically their objection was that there was no proof that the documents were made in the usual and ordinary course of business. So taking a step back, if we’re talking about getting over that hurdle of proving the documents are made in the usual and ordinary course of business, if that’s not admitted by the defendant, I take it the plaintiff then would have to call witnesses, correct?
Bianca La Neve: Yeah, so under Section 35 of the Ontario Evidence Act, and that’s what we’re going to use as our reference point giving that we’re in Ontario, you’re allowed to introduce a business record and you’re allowed to rely on it for the truth of its contents if you’re able to prove that it was made in the usual and ordinary course of the business and that it was in the usual and ordinary course of the business to make such a writing or record. So normally you would do this by calling a records keeper, say at the business, or some other person at the business, an employee that has general knowledge of record-keeping practices of the business. And then you would take them through the record-keeping procedure of the business to be able to show that that record that is at issue was made in the usual and ordinary course of business. And so what’s important to note here is that you don’t necessarily need to call the maker of the record because sometimes practically speaking, especially in large businesses, you’re not going to be able to determine who actually made the record or they may not be available for trial, etc. It’s enough that you can call someone who can speak to general record-keeping practices of the business to show that the business record is in fact a business record.
David Smith: Right and certainly it’s a lower threshold getting these documents admitted in the computer age, let’s call it, in the sense that now that so many business records are computer-generated, e-mails, what have you, the reality is that someone can take the stand, say yes, this is produced by our computer system in the fashion that we have. And therefore the threshold is pretty low to call it a business record. Where you can run into problems and where we certainly were going to run into some problems is when you look at older business records or older records that you seek to have considered to be business records that are made in the handwriting of an individual and that individual is no longer alive. And the problem there, of course, is how can somebody take the stand at a business and say yes, that is a record of the business when the person giving that evidence wasn’t alive at the time that the record was recorded and it’s in the handwriting of some completely different individual.
Bianca La Neve: That’s right. So sometimes you’ve come across these unusual circumstances where you have a business record. It looks and smells like a business record but you’ve got no one to actually testify to its nature. And that could be for many reasons. As David eluded, it could be that the person is no longer alive. It could be that the company dissolved years ago and you can’t locate an employee. And so how do you get those records in when you deem them crucial to your case?
David Smith: That’s right. And so if we consider the fact that we probably cannot fit within the wording of the Evidence Act, that brings us to the principle exception in Ares and Venner. And I think what I’d like to do now, Bianca, is perhaps we can briefly turn to this sort of thinking outside of the box, if you will. And consider first Ares and Venner and then consider the principled exception. And Ares and Venner…let me just talk about it briefly just because it’s top of mind…in Ares and Venner we had a case where there were nursing records or before the Supreme Court of Canada was a case where there were records made by nurses. And the Court said that these records are made pursuant to a duty. Nurses have a duty to keep records. These records were made pursuant to that duty, therefore they are inherently trustworthy. And so for that reason, in essence and in a nutshell, the Court said these documents can be deemed to be reliable and trustworthy and Ares and Venner, of course, came before the principled exception but what it did was it sort of foreshadowed the principled exception because it said that if you’re making notes pursuant to a duty, they’re inherently trustworthy, i.e. inherently reliable.
Bianca La Neve: Yeah so what’s interesting to note in Ares and Venner was that even though we were talking about hospital records or medical records made of nurses and even though the nurses were available to testify…they were actually sitting in the Courtroom but nobody called them to speak about their records…the Court decided that the principle was to be expanded to generally business records and that it didn’t matter to have the maker of the record actually testify. So as long as you could show that there was a duty to make the record, it was made in the course of that duty, it was made somewhat contemporaneously with the event that it was recording, so it was made at least at the time of the event or shortly thereafter, it was admissible at the first instance. So again, we’re not talking about the weight to be given to this evidence. It’s sort of the threshold admissibility part. And then later on the trial judge or the jury can decide what weight should be given to this evidence. But it shouldn’t be knocked out of the box just because you don’t have the maker of the document there.
David Smith: Right and that, of course, brings us to the principled exception where there is the trilogy of cases and then the more recent case of Cabula and I believe is how it’s pronounced, where the Supreme Court of Canada has really talked about the principled basis which is, of course, the two branches of necessity and reliability in terms of getting these kinds of documents admitted into evidence. And I’m going to saddle you with the issue of reliability, Bianca. I’m going to talk about necessity in a case such as one where the maker of the document is no longer alive. The Courts have been clear that almost in every case, if the person who made the document is deceased then…and you have a document that you’re seeking to prove…it’s clearly necessary that you need to get the document admitted. So you’ve got over that first hurdle. The only issue remaining is, can the document be deemed to be reliable? And I’ll segway over to you in a second, Bianca. But I would just note in passing, and at the risk of repeating myself, this is where Ares and Venner comes in because if a document is made pursuant to a duty, there’s a circumstantial guarantee of trustworthiness is the phrase which I really like and which pops up in that case. And that is one indicia of reliability. But what else does the Court look at to consider whether a document is reliable?
Bianca La Neve: It can look at, as we’ve alluded to earlier, when the document was made. So was the document recorded at the time of the event or shortly thereafter? Like you said, was there a duty to record that event and what exactly are the duties and responsibilities of the person recording such events? Was there an incentive to tell the truth in the document and record the true events? So that also goes into reliability because if there was no incentive to fabricate any thing and the person was actually under a duty to record the event accurately or risk some sort of punishment, let’s say even losing their job, then that also lends some reliability to the business record.
David Smith: Right, and you know, just touching on that issue of motive or incentive there’s some interesting British law which talks about and even Cabula talks about what is, in essence, common sense which is…and earlier, you know, Bianca, you eluded to a document looking and smelling like an original and looking and smelling like a business record…I think essentially what that means is that if it bears all the hallmarks of being a document made in the ordinary course of business and no one is available to attest that that’s what it is, there’s almost a presumption that in the absence of anything to suggest that there should be a reason to be suspicious that this document was made with an intention to fabricate. And I mean I suppose you could have, you know, a forensic expert adduce evidence of forgery. But in the absence of anything like that, in most cases the Court is going to take note of the document and then you just turn to consider the weight to be attached to that evidence.
Bianca La Neve: And in looking at weight, I mean the trier of fact whether it’s going to be a judge or jury, will attribute weight at the end in viewing the totality of the evidence. So that’s why it’s important to sort of make this distinction between admissibility in the first instance and the weight to be given to the evidence because you usually get it in, like you said if it looks and smells like a business record. You can usually get it in under the principled approach but then what weight is going to be attached to it? Well that will depend on the totality of the evidence and what other evidence has been led to prove your case.
David Smith: Okay, well that was a really interesting discussion, Bianca. And of course it brought to mind all that hard work we spent preparing for the trial. So on that note, we’ll wrap up this podcast and hopefully it was of some interest to the listeners. And we want to thank everybody for joining us today.
Bianca La Neve: It was a pleasure, David, to podcast with you. I look forward to podcasting again with you soon.
David Smith: And of course we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m David Smith.
Bianca La Neve: And I’m Bianca La Neve. Thank you.
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