Court Of Appeal Addresses Unanticipated Use Of Business Records In Joint Book Of Documents

Parties to litigation often make agreements regarding business records to be admitted into evidence at trial. Ordinarily, those records by themselves may not be used to establish issues that require an opinion, like a determination that the defendant acted negligently. However, in Gumbley v Vasiliou, 2025 ONCA 851, the Ontario Court of Appeal addressed an exceptional circumstance in which they may.

Background

The case involved a medical malpractice claim. The patient, Gumbley, was admitted to intensive care under Doctor Vasiliou's supervision following an asthmatic attack. She suffered brain damage during the hospital stay caused by low oxygen levels. The issue was whether Gumbley should have be intubated and ventilated earlier.

Vasiliou was found to be negligent at trial as she failed to contact the on-call intensive care specialist ("Warner") sooner. The trial judge relied on a note from Warner addressed to Vasiliou ("Warner's Note"), that stated: "Around midnight, [Gumbley] required intubation because of severe respiratory acidosis and hypoxemia... You called me at home to provide advice about what to do next."

As there were no records of Gumbley's oxygenation levels at the relevant time, the trial judge inferred that Vasiliou was the source of the information that Gumbley required intubation due to acidosis and hypoxemia.

On appeal, Vasiliou argued that Warner's Note was inadmissible as it was hearsay, and because it was opinion evidence that should have been excluded by a limit in the parties' agreement regarding the Joint Book of Documents. To the extent that records were "business records" as defined by the Evidence Act, the parties had agreed they would be evidence of the events as set out in the records, though the parties could lead contrary evidence. However, if the records contained a diagnosis or statement of opinion, those entries were admissible to establish the fact that the author reached those diagnoses or opinions at the time, but not for the truth or accuracy of the opinions.

Court of Appeal's Decision

The Court of Appeal found that the trial judge did not impermissibly rely on Warner's Note for the truth of its contents, nor as inadmissible opinion evidence.

While there were many grounds for the presumptive inadmissibility of hearsay statements, the court noted that a statement used for a hearsay purpose could be admissible if the parties agreed to its admission as hearsay, or if it fell within an exception to the hearsay rule.

Warner's Note included two layers of hearsay: (1) it was a statement made out of court by Warner who was not called to testify; and (2) it recorded the observations and findings of someone else.

In this case, Warner's Note was properly before the trial judge on consent, as hospital records qualify as "business records" under section 35 of the Evidence Act. Thus, Warner's Note would be admissible as evidence that Warner had received the stated information. This satisfied the first layer of hearsay.

Regarding the second layer of hearsay, the Court of Appeal was of the view that if Vasiliou was the source of the assertion that "around midnight, [Gumbley] required intubation because of severe respiratory acidosis and hypoxemia", there would be two bases for the admissibility of this evidence for its truth.

First, the Evidence Act would permit admission of the second layer of hearsay. Appellate jurisprudence has held that double hearsay in a business record would only be admissible if the person making the record and the source of the double hearsay both acted in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence, or event. The Court of Appeal found that, "without question", Vasiliou was acting in the usual and ordinary course of business when instructing Warner.

Second, as the information in Warner's Note was offered as evidence against Vasiliou, the party admission exception to hearsay would apply if Vasiliou was the source of the information. The Court of Appeal found the conclusion that Warner was summarizing information provided by Vasiliou was "virtually inescapable" based on the reference to her in the note.

As Vasiliou was the source of the medical opinion that Gumbley required intubation, and her expertise was not an issue, the trial judge was entitled to rely on this opinion for its truth, as an expert opinion.

Commentary

Cases like this illustrate the sometimes labyrinthian nature of the rules of evidence. Though the Court of Appeal noted that Warner's Note contained two levels of hearsay, it nevertheless passed muster based on both consent and the party admission exception to the hearsay rule.

Though a business record may not ordinarily be used to prove an opinion, it may sometimes contain the source of an opinion that is critical to the outcome of a case. Before agreeing to add business records to a Joint Brief of Documents, litigants should carefully consider the potential ramifications of business records in a Joint Brief of Documents, and what other evidence they may need to respond.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.