The Hearsay Rule in Ontario Civil Cases

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Prior to the seminal cases of R. v. Khan and R. v. Smith, the hearsay rule prohibited the reception of oral or written evidence otherwise than through the testimony of the maker of the statement, if the evidence had been proffered for the truth of its contents. The general rule was subject to a host of exceptions, for example, the admissions and res gestae exceptions. The rule and its exceptions developed out of the common law’s belief that the credibility of the maker of the alleged statement should be tested by cross-examination to ensure the trustworthiness of the evidence.

The Supreme Court of Canada first articulated the so-called principled approach to hearsay evidence in R. v. Khan, [1990] 2 S.C.R. 531, a criminal case in which the admissibility of a child’s statement regarding sexual abuse was in issue. In this case a three-year old child’s statement to her mother was admitted into evidence for the truth of the contents even though the statement did not fit any of the recognized exceptions. The Court concluded that a more flexible approach to hearsay evidence was warranted: (see p. 540)

The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations. While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in principle and the policy underlying the hearsay rule rather than the structures of traditional exceptions.

The Court concluded that a new rule could be fashioned with respect to the hearsay evidence of children relating to crimes committed against the child if the twofold test of “necessity” and “reliability” were met. In the Court’s view, “The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as “reasonably necessary.” (see p. 546)

Following Khan, various interpretations of the “new” hearsay rule were advanced. These possible interpretations of Khan were highlighted by Justice L’Heureux-Dube in her dissenting reasons in R. v. Starr, [2000] 2 S.C.R. 144 at p. 174 (discussed infra.)

1. Khan created a particular new exception to the rule against hearsay for child testimony;
2. Khan provides the basis for creating new categorical exceptions for necessary and reliable evidence;
3. Khan created a residual exception for necessary and reliable evidence, leaving the traditional exceptions intact;
4. Khan not only permits the admission of evidence which does not fall within the existing exceptions but allows courts to revisit a traditional exception to determine whether it can still be justified on the basis of necessity and reliability;
5. Khan abolishes the traditional exceptions and supplants them with the principled approach of necessity and reliability which are applied on a case-by-case basis.

That Khan was not to be restricted on its facts to child testimony, but signaled a new approach became clear upon the release of R. v. Smith, [1992] 2 S.C.R. 915, a murder case in which the Crown sought to introduce the evidence of telephone calls made by the deceased to her mother. Lamer, C.J.C., writing for the Court stated as follows: (see pp. 932-33)

…Khan should not be understood as turning on its particular facts, but, instead, must be seen as a particular expression of the fundamental principles that underlie the hearsay rule and the exceptions to it. What is important, in my view, is the departure signaled by Khan from a view of hearsay characterized by a general prohibition on the reception of such evidence, subject to a limited number of defined categorical exceptions, and a movement towards an approach governed by the principles which underlie the rule and its exceptions alike. The movement towards a flexible approach was motivated by the realization that, as a general rule, reliable evidence ought not to be excluded simply because it cannot be tested by cross-examination. The preliminary determination of reliability is to be made exclusively by the trial judge before the evidence is admitted.

This Court’s decision in Khan, therefore, signaled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence, and its necessity.

Reliability was said to be established where there is a circumstantial guarantee of trustworthiness. Necessity would be established where the relevant direct evidence is for a variety of reasons, unavailable. The court indicated that the categories of necessity were not closed. (see p. 934)

Since releasing the judgment in Smith, the Supreme Court has had numerous other opportunities to assess and refine the hearsay rule, althoughall of them in the criminal context. (See for example: R. v. Parrott, [2001] 1 S.C.R. 178; R. v. Starr, supra.; R. v. F(WJ), [1999] 3 S.C.R. 569; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. D.R., [1996] 2 S.C.R. 291; R. v. Hawkins , [1996] 3 S.C.R. 1043 ; R. v. U(FJ), [1995] 3 S.C.R. 764; R. v. Finta, [1994] 1 S.C.R. 701; R. v. B(KG), [1993] 1 S.C.R. 740)

More recently, in the Starr case the Court indicated that even long-recognized exceptions to the general rule may now be reassessed in light of the overarching requirements of necessity and reliability. At issue in Starr was whether the tendered evidence fell within the present intention exception to the hearsay rule, and even if it did, whether that exception should be reconsidered in light of the principled approach prescribed by Khan and Smith.

Although Iacobucci, J., writing for a majority of the Court, found that the statement at issue did not fall within the present intention exception, he went on to consider the interrelationship between the recognized exceptions and the criteria of necessity and reliability. Justice Iacobucci indicated that the majority favoured the view that the exceptions were themselves subject to the principled approach of necessity and reliability. He stated: (see p. 243)

Up to the present, this Court’s application of the principled approach to hearsay admissibility in practice has involved only expanding the scope of hearsay admissibility beyond the traditional exceptions. The focus of the Court’s analysis and commentary has been upon the need to increase the flexibility of the existing exceptions, and not specifically upon the need to re-examine the exceptions themselves. However, this case requires that we examine an exception to the hearsay rule and determine its coexistence with the principled approach. As I will discuss further, to the extent that the various exceptions may conflict with the requirements of a principled analysis, it is the principled analysis that should prevail.

Iacobucci, J. indicated that the two paramount reasons for reconsidering previously accepted exceptions to the hearsay rule were: trial fairness and the integrity of the justice system; and the intellectual coherence of the law of hearsay. (see p. 246) However, he went on to suggest that courts must be circumspect in reconsidering those exceptions. The exceptions will “continue to play an important role under the principled approach.” (see p. 247) In fact, Justice Iacobucci went on to suggest that in the vast majority of cases, the presence or absence of a traditional exception would be determinative of the admissibility question. (see p. 252)

Although the Supreme Court of Canada has not specifically dealt with the application of the new hearsay rule in a civil case, it is beyond doubt that the principled approach developed in the above cases applies in the civil context. The following is a survey of Ontario cases in which this new approach has been applied.

What becomes apparent upon review of these cases is that the Khan approach has not yet supplanted the long-recognized exceptions to the general hearsay rule that have developed over the years. Courts continue to focus on whether the disputed evidence falls within one of the recognized exceptions to the traditional hearsay rule. However, these cases do signal that where a litigant is unable to establish that the tendered evidence clearly falls within one of the recognized exceptions, the courts are willing to go beyond those exceptions to test the evidence against the twin criteria of necessity and reliability. What the civil courts in Ontario have not yet done, however, is to reconsider the recognized exceptions to the
traditional hearsay rule themselves according to the twin criteria of necessity and reliability. Moreover, the courts have yet to say that the law of hearsay is governed only by the Khan/Smith criteria. The rule and its’ exceptions remain, regardless of the Supreme Court statements.

Survey of Ontario Civil Decisions Post-Khan and Smith

Dodge v. Kaneff Homes Inc., [2001] O.J. No. 1141 (Sup. Ct.)

It would appear that in the civil context the party seeking admission of the hearsay evidence may be held to a somewhat lower threshold test of “reliability”. In the Dodge case, the plaintiff, in an unusual move, requested a ruling prior to trial as to the admissibility of the hearsay evidence that would be tendered at trial. The plaintiffs, with limited financial resources, wanted some assurance that evidence crucial to their case would ultimately be admitted before launching into what was anticipated to be a four to five day trial. The issue in the case was whether Kaneff Homes had orally agreed to increase its commission agreement with Ray Dodge, a real estate broker who had since died.

The plaintiffs sought admission of certain notes made by Dodge, conversations he had with family members and friends in the months preceding his death, and the testimony of the former spouse of Andy Berzins (Kaneff’s Vice President) of a conversation she had with Berzins. This evidence was said to be confirmatory of Dodge’s recollection of the agreement.

Pitt, J. concluded that the indicia of reliability need only be established on a balance of probabilities and that at this stage the court was “concerned only with threshold reliability, as ultimate reliability and the weight attached to it are to be decided later.” (see paragraphs 21-22) In Justice Pitt’s view, there was some flexibility with respect to the admissibility of hearsay evidence in civil proceedings, because the ultimate burden of proof is only on a balance of possibilities. (see paragraph 23) In ruling that the evidence would be admissible except for the typed notes and the testimony of the son-in law, Pitt, J. also took note of the fact that apart from the notes, in each instance one of the parties to the discussions would be available for cross-examination. (see paragraph 25)

MacLean v. Wallace, [1999] O.J. No. 3220 (Gen. Div.)

This medical malpractice case demonstrates that although courts generally cite the twin criteria of necessity and reliability, they also continue to look to the hearsay exceptions as a basis for admitting evidence.

In this case, a diagnostic test failed to reveal the existence of a spinal dural fistula. The family physician requested the opinion of a physician at the Mayo Clinic in Rochester, Minnesota, where he had trained, and sent a complete set of relevant records. The neuroradiologist from the Mayo Clinic responded by letter which stated in part that: “The films you sent from the angiographic examination do not demonstrate a spinal dural AV fistula but I do not feel comfortable attributing this to thrombosis or the Foix-Alajouanine syndrome for several reasons. Several key vessels were not included in theexamination.” The letter fell short of stating that the failure to locate the fistula demonstrated a lack of the appropriate standard of care. During trial counsel for the plaintiffs tendered the letter as an exhibit.

Dilks J. admitted the letter for two reasons. First, the physician was not being consulted as an expert for his medico-legal opinion on liability but as a treating doctor and accordingly, the letter was a medical record within the meaning of s. 35 of the Ontario Evidence Act. Second, Dilks, J. was of the view that the evidence was reliable and necessary, commenting as follows: (see paragraph 67)

I was also of the view that it met the twin tests of reliability and necessity under the R. v. Khan, [1990] S.C.J. No. 81, line of cases. The fact that Dr. Nichols’ unavailability deprived defence counsel of the right of crossexamination goes not to the admissibility of the evidence but to its weight.

Pathak v. Bakshi, [1998] O.J. No. 5666 (Gen. Div.)

In a misrepresentation action involving a 0speculative land development scheme, the plaintiff purported to tender hearsay evidence from her former lawyer as to the contents of an audiotape of a shareholders meeting that had since been lost. The tape was in an unusual format that made it difficult to copy. No transcript was ever made of the tape. As part of the examination-for-discovery, the former lawyer listened to the tape. The hearsay evidence was based on the lawyer’s recollection of listening to the tape.

Belleghem J. concluded that the tape was not admissible for the following reasons: (see paragraphs 9 and 10)

I am required to consider the issues of necessity and reliability. In the present case, a number of factors bear on the question of necessity. It has been some 6 1/2 years since the events on the tape took place. The tape was equally available to both parties, at least at some point. The tape has been lost. There is other evidence available, i.e. other persons who were at the meeting. There are minutes of the meeting, although there is some dispute as to the completeness and the contents of the minutes. On the question of necessity, I am, on balance, satisfied that the necessity test has been met.

The reliability issue is more troublesome. The most significant reliability aspect is the evidence of Mr. Makepeace that he only listened to two or three minutes of the tape. I am not satisfied that this would produce any appreciable degree of reliability as to the actual contents of the meeting. I must discount his vigorous assertions of the tenor of the meeting. On the issue of reliability, I take into account the fact that it has been a long time since he listened to the tape. He did not make notes. He would be objectively viewed as a biased witness (he was the plaintiff’s counsel at the time) and, as I indicated earlier, he was only privy to a small part of the entire proceeding. Finally, I am advised that the tape falls far short of what could be called a professional “recording”. The reportedly poor quality of the recording may affect the perceived content. I am not satisfied that even if the witness gave an accurate account of what he heard that what he heard would, in turn, be an accurate account of what took place at the meeting.

Norman v. Westcomm International Sharing Corp., [1997] O.J. No. 4774 (Gen. Div.)

This case involved a libel claim by the plaintiff against the defendant, who, in an effort to collect an overdue account, had sent a letter in care of the Saudi Arabian Consulate to the plaintiff’s new employer suggesting that the plaintiff was attempting to defraud the defendant. Six days after the letter was faxed, the plaintiff’s employment was terminated effective immediately. The termination was confirmed in a letter to the plaintiff, which indicated that as a result of a “recent meeting with our client in Saudi Arabia”, the plaintiff’s employment was terminated.

One of the legal issues raised was whether the plaintiff’s termination was a direct result or causally linked to the defendant’s letter. No one from the Saudi Arabian Consulate gave evidence for either party. The American representative from Saudex had been subpoened, but refused to attend. The defendants contended that the termination letter was not admissible for the truth of its contents because the sender of the letter was not present to testify. The defendants made no efforts to call a representative from Saudex.

Wilson J. found that the dual requirements of necessity and reliability concerning the letter had been met and admitted the letter not only as part of the chronology, but also for the truth of its contents. Wilson, J. referred to the unavailability of the witness as necessitating the admission of the letter, stating that: (see paragraph 136)

In R. v. B.(K.G), [1993] 1 S.C.R. 740 at 796, Lamer C.J.C. said, “the necessity criterion has usually been satisfied by the unavailable witness … it is important to remember that the necessity criterion ‘must be given a flexible definition, capable of encompassing diverse situations’”. Similarly in R. v. Hawkins & Morin, [1996] 3 S.C.R. 1043 at 1083, Lamer C.J.C. and Iacobucci J. described necessity as involving “circumstances where the declarant is unavailable to testify at trial and where the party is unable to obtain evidence of similar quality from another source”. I find in the circumstances of this case that the criterion of necessity has been proved.

Wilson, J. also found that there was a circumstantial guarantee of trustworthiness, although it would appear that the fact the defendants made no effort to ensure that the writer was a witness at trial clearly influenced the result: (see paragraphs 137-139)

The requirement of reliability will be satisfied where there is a circumstantial guarantee of trustworthiness. Lamer C.J.C. in R. v. Smith, [1992], 2 S.C.R. 915 at 930 made the following statement about the reliability of certain kinds of hearsay evidence:

“Guarantee”, as the word is used in the phrase “circumstantial guarantee of trustworthiness”, does not require that reliability be established with absolute certainty. Rather, it suggests that where the circumstances are not such as to give rise to the apprehensions traditionally associated with hearsay evidence, such evidence should be admissible even if cross-examination is impossible.

In Hawkins, supra, at p. 1084, the Court described the function of the trial judge in assessing reliability for the purpose of determining the admissibility of hearsay evidence:

The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis of evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.

The contents of the Termination Letter are clear. The danger of distortion or inaccuracies in repetition of a third party statement is not present when the Termination Letter is before the court. The defendants did not have the opportunity to cross examine the writer of the Termination Letter. I note that this Termination Letter was part of the plaintiff’s productions. The defendants were well aware of its existence. The defendants took no steps to ensure the writer was before the court. I find that there are sufficient guarantees of trustworthiness. In these circumstances I find that the criterion of reliability has been met…

Neal v. Toronto-Dominion Bank, [1997] O.J. No. 39 (Gen. Div.)

The new hearsay rule is not restricted to evidence tendered at trial. It appears that the Khan criteria may also be used to challenge affidavits used on motions. The Neal case was a contest between the bank which had loaned money to a bankrupt company and the employees’ pension plan. The court was asked to determine whether the company was obligated to contribute to the Pension Fund for the months of April and May 1991. In attempting to establish how many employees had worked at the company during those months the solicitors for the pension plan attempted to obtain information from the bank which had put a receiver in place. The receiver had generated an internal document for the bank indicating the number of employees who had been employed during the months in question and the amount of the unpaid benefits. In the course of the litigation, the documents became known.

The pension plan trustee put these documents and the affidavit of the trustee before the court in support of its motion for summary judgment for the amount of the unpaid benefits. In the affidavit the trustee deposed that according to “documents produced by the Bank from its receiver in this action…there were 191 eligible employees for the month of April and 165 eligible employees for the month of May, 1991. Based on the monthly contribution rate of $260 per employee the total of GTL’s contribution arrears is $92,560.” The Bank took the position that the evidence was inadmissible hearsay.

MacPherson J. noted that: (see paragraph 52)

“…if some of the material relied on by the trustees is hearsay, it is nevertheless admissible on a motion for summary judgment. Rule 20.02 provides:

20.02 An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01(4), but on a hearing of the motion an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of contested facts.”

In Justice MacPherson’s view, the paragraphs in the affidavit complied with the requirements of Rule 20.02 by stating the relevant facts and giving a clear indication of the basis for believing their truth. However, he also went on to assess whether the evidence also met the Khan criteria of necessity and reliability. MacPherson, J. stated as follows: (see paragraphs 56-58)

Finally, I note that in recent years the hearsay rule has been substantially relaxed in Canada. In Regina v. Smith (1992), 94 D.L.R. (4th) 590 (S.C.C.), Lamer C.J.C. said, at p. 600:

This court has not taken the position that the hearsay rule precludes the reception of hearsay evidence unless it falls within established categories of exceptions, such as “present intentions” or “state of mind.” Indeed, in our recent decision in R. v. Khan …, we indicated that the categorical approach to exceptions to the hearsay rule has the potential to undermine, rather than further, the policy of avoiding the frailties of certain types of evidence which the hearsay rule was originally fashioned to avoid.

The modern touchstones for the admission of hearsay evidence are reliability and necessity: see Smith, p. 603. The trustees meet both of these criteria in this case. The material which they introduce to support the 191 and 165 figures is highly reliable. It all comes from company records…

In this letter, the receiver appointed by T-D is setting out precise figures, and identifying the source of the information. T-D received this letter. In my view, it is completely reliable. Moreover, if T-D had any doubts on this score, it, not the trustees, has had complete access to GTL’s books and records since May 1991.

The ‘necessity’ component of the exception to the hearsay role is also met. In argument, T-D suggested that the trustees should have attempted to communicate with former employees and establish the number of eligible employees in that way. I disagree. The trustees claim is for a relatively small amount of money, $92,560. In the face of perfectly good information from company records, I do not see why the trustees should be forced to go to the great expense of trying to track down at least 191 people who are no longer employed at the company. As Sopinka, Lederman and Bryant put it, when discussing the exceptions to the hearsay rule in The Law of Evidence in Canada (Toronto: Butterworths, 1992) “one must consider the expense to the litigants in seeking out and subpoenaing all relevant witnesses.” (p. 192). This concern, articulated in a trial context, is, in my view, equally relevant in the context of a motion for summary judgment.

Ali v. M.H. Ingle and Associates Insurance Brokers Ltd., [1996] O.J. No. 4670 (Gen. Div.)

The plaintiff brought an action for payment of travel insurance benefits in respect of alleged expenses of $20,098 in U.S. funds incurred in a Romanian hospital while on vacation. The plaintiff contended that he had borrowed the money and paid the bill in cash. OHIP partially reimbursed him, however, the defendants refused to pay the balance of his claim on the grounds that the plaintiff had grossly overstated the amount of the hospital bill, which was entirely covered by OHIP. The friend from whom the plaintiff had allegedly borrowed the money did not testify at trial. The plaintiff filed a hospital receipt which purported to be in the amount of $20,098 U.S., together with a medical report verifying the fact that he had been hospitalized.

The defendant obtained copies of documents from Romanian hospital officials that suggested the plaintiff’s claim for benefits was fraudulent. The defendant tendered a copy of the letter sent by the hospital to the Ontario Ministry of Health and a copy of the hospital bill as evidence at trial. The defendants also obtained a letter from the director of the hospital indicating that their letter to OHIP had been altered and stating that the actual bill was Can. $1,251.21. The defendant did not call any Romanian official as a witness.

Jenkins, J. found that the requirement of necessity had been satisfied given that the authors of the letter and bill were in Romania and were unwilling to attend to give evidence at trial. Jenkins, J. also noted that given the amount involved in this action, it was not economically feasible for the defendants to produce them. (see paragraph 23) On the question of the reliability of the documents, Jenkins, J. was satisfied that there waso question of partiality on the part of the hospital authorities that would cause them to favour one side or the other or to falsify the bill. In his view, the
documents carried a sufficient guarantee of authenticity and were admitted in evidence. (see paragraph 24)

Kovacs v. Ontario Jockey Club (1995), 126 D.L.R. (4th) 576 (Ont. Gen. Div.)

The plaintiff sued the defendant for damages for false imprisonment after he had been escorted to the security office at Woodbine racetrack on suspicion that he was attempting to defraud the racetrack. The investigator who was the principal employee of the defendant involved in the incident had died. The defendant sought to introduce into evidence two documents prepared by the deceased employee. One document was a photocopy of the entry from the guard’s notebook concerning the incident. The second was a report prepared at the request of the chief of security upon receipt of the plaintiff’s letter suggesting that legal action might be taken.

The chief of security had instructed all guards to record everything that happened each shift. The notes were taken contemporaneously in the manner of a trained policeman’s notetaking. An incident report was also to be prepared immediately following an incident.

Cumming, J. noted at p. 581 that the Smith and Khan cases permitted the introduction of hearsay evidence without the need to pigeonhole the evidence into recognized exceptions provided the evidence met the requirements of necessity and reliability.

With respect to the first document, Cumming, J. concluded that because the original notes in the notebook were made contemporaneously and required in the usual course of business, these notes would qualify as business records within the meaning of s.35(2) of the Evidence Act. The required ground of necessity would be satisfied given the guard’s death. While cross-examination could not take place, the criterion of reliability was satisfied because of the contemporaneous nature of the records and the fact that they were kept in the regular course of business. (see p. 583) Notably, the defendant ultimately withdrew its request to seek admission of the notebook.

With respect to the report prepared after the incident, Cumming, J. refused to admit this document into evidence. The report was not written contemporaneously, but prepared in contemplation of possible litigation. Furthermore, the report was not prepared as a usual business record and was not sufficiently reliable. The fact that the notebook and incident report that were prepared contemporaneously with the event were not themselves tendered into evidence clearly influenced Justice Cumming’s decision, (see p. 583) suggesting that “reliability” in this case was considered co-extensive with the business records exception to the traditional rule.

Clark v. Horizon Holidays Ltd. (1993), 45 C.C.E.L. 244 (Ont. Gen. Div.)

Although the court found that the hearsay evidence did not fall within the usual recognized exceptions to the hearsay rule, the court went beyond those exceptions to apply the principled approach articulated in Smith and Khan.

The plaintiff sued the defendant for wrongful dismissal. He had refused to accompany a tour group unless first compensated for expenses that the employer questioned. The supervisor to whom he had delivered his ultimatum had died prior to trial. Before his death he had made a written notation of the telephone call with the plaintiff during which the expenses were discussed. The supervisor also made a notation of the face-to-face meeting during which the plaintiff had been dismissed. The supervisor had also responded to a Canada Employment request for information regarding the dismissal and had recorded a conversation with another employee who had admitted that the plaintiff had told him he had delivered an ultimatum to the employer. The defendant sought to introduce all of these documents into evidence. The defendant also planned to call other employees who would testify as to what the deceased employee had told them concerning the termination.

With respect to the notations made by the deceased employee, Adams, J. concluded that the evidence did not fall squarely within existing exceptions to the hearsay rule. However, he considered the evidence to be responsive to the values underlying the common law business exception, the res gestae rule and the statutory business records exception. (see p. 256)

In assessing necessity, Adams, J. observed that the declarant had died and while it might have been open to the defendant to preserve the deceased’s evidence in a more reliable form, there was no suggestion that the defendant failed to take advantage of any realistic option. On the reliability point, Adams, J. concluded that Smith and Khan did not require a trial judge to be satisfied that the cross-examination would be totally superfluous before permitting admission of the hearsay evidence. The hearsay evidence was corroborative of other admissible evidence. The evidence of the deceased was sufficiently reliable to support its admission and it would be taken into account with all of the other evidence. Clearly, objections to the evidence were not considered as going to the admissibility of that evidence, but rather as a factor going to its weight. (see p. 256)

Etienne v. McKellar General Hospital (1994), 38 C.P.C. (3d) 342 (Ont. Gen. Div.)

The plaintiff in a medical malpractice lawsuit sought to admit two medical reports made by two physicians, neither of whom were available to testify at trial. One physician had suffered a serious stroke, and it would have been costly and inconvenient for the other physician who resided in the United States to attend the trial. The plaintiff contended that he was entitled to file the reports as “medical records” under s. 52 of the Evidence Act, and also pursuant to the principled approach to hearsay evidence articulated in Khan and Smith.

Plantana, J. concluded that these reports were in the nature of expert opinion reports and not admissible pursuant to s.52. In assessing whether the necessity and reliability test was met, Plantana, J. articulated the factors to be considered: (see p. 348)

1. was the unavailability of the witness sudden and unexpected in relation to the trial date;
2. was the report prepared by the main treating specialist who made personal observations known only to him at the time;
3. was the report prepared at a crucial time in the action, that is, could any of the facts have changed since the time of the observations;
4. has the plaintiff’s condition changed since the report was prepared that could have affected the opinion in the report.

In this case, necessity was not established. The reports had been prepared years after the surgery by physicians other than the main treating specialists. The reports had not been prepared at a crucial time. The trial had been adjourned on a number of occasions and the plaintiff accordingly had an opportunity to retain other experts. (see pp. 348-49)

Ahmad v. Ontario Hydro (1993), 1 C.C.E.L. (2d) 292 (Ont. Gen. Div.)

The plaintiff brought an action for inducing breach of contract against the defendant. The plaintiff had been working on a joint project for Atomic Energy Canada and Ontario Hydro. He was removed from the project and claimed that he had been constructively dismissed at the urging of Ontario Hydro. The plaintiff had searched through the files of the project officer finding notes of telephone conversations that the project officer had with employees of the defendant. The maker of the notes subsequently destroyed them and the plaintiff sought to testify as to their contents. Neither sideintended to call the maker of the notes at trial.

McWilliam, J. found that necessity had been established. The notes had been destroyed in suspicious circumstances. (See p. 327) With respect to reliability, McWilliam, J. ruled that the maker of the notes would likely not have testified for the plaintiff. Even though the reliability of the plaintiff’s evidence might be suspect, the defendant could have called the maker of the notes as part of its case to contradict the evidence ofthe plaintiff. That he was not called influenced the court’s decision. The maker of the notes had confirmed that calls were made and given all of the circumstances, the court was satisfied that the plaintiff had seen the notes. (See p. 328)

Fiske v. Hartford Insurance Co. of Canada, [1993] O.J. No. 3127 (Gen. Div.)

The plaintiff’s sailboat was badly damaged by a boat transport firm while transporting the plaintiff’s sailboat. The plaintiff had previously brought a successful action against the transport firm for damages but was unable to enforce his judgment. Neither the cargo nor motor vehicle insurer of the transport company participated in the first trial. The plaintiff subsequently sought a declaration that the cargo or motor vehicle insurance of the transport firm provided coverage. During the first trial, a tape recording of a conversation between the plaintiff and Justus, the owner of the transport company, was introduced in evidence. In the conversation Justus acknowledged responsibility for the accident and described how the accident happened. In the second trial the plaintiff sought to introduce the tape, the cross-examination of Justus and his evidence at the first trial.

The court concluded that the Justus evidence from the first trial was admissible hearsay, having regard to the twin test of necessity and reliability as outlined by Khan and Smith. Wilson J. stated as follows: (see paragraphs 34-35)

Dealing first with the issue of necessity, I note that it is clear from the evidence that Justus has left the jurisdiction and is presently carrying on business in Orlando, Florida. Justus Boat is no longer in operation in Ontario. Fiske has attempted to enforce the judgment from the First Trial without success. Fiske gave evidence that he attended the Justus Boat yard in Orlando and took photographs. I accept his evidence that he was threatened by Justus and advised that if he came near the yard again, Justus would use his rifle. I accept that Fiske is genuinely concerned for his safety and that he considers Justus dangerous. The procedure available in the Rules of Civil Procedure, Rule 34.07, is of little practical assistance. Clearly, Justus would not have consented to giving evidence. Further, I infer from his conduct that he would not have co-operated to allow Fiske to obtain commission evidence pursuant to the Rules of Civil Procedure. I find, therefore, that the test of necessity has been proved.

The second branch of the test relates to reliability. I note that in connection with the Justus Tape, there can be no doubt as to its accuracy as the conversation was recorded. I further note that Justus was crossexamined extensively on the contents of the Justus Tape prior to and at the First Trial.

Mastrangelo (Litigation Guardian of) v. Kitney (1992), 16 C.P.C. (3d) 262 (Ont. Gen. Div.)

The defendant sought admission of OHIP records in a personal injury action pursuant to s.35 of the Evidence Act. The OHIP records showed that OHIP had received a claim for payment from a chiropractor prior to the plaintiff’s accident. The plaintiff had denied seeing the chiropractor. The chiropractor’s records had since been destroyed upon his retirement. The plaintiff objected to the admissibility of the evidence on several grounds: that opinion evidence was not admissible pursuant to s.35; that s.35 permitted admission of the chiropractor’s records but not OHIP’s records; and that the record was not a contemporaneous business record. Kovacs, J. accepted that the recorded diagnosis made by the chiropractor by means of a diagnostic code on the claim was hearsay and an opinion.

Kovacs, J. concluded that the opinion evidence expressed in the business records fell within the recognized exception to the hearsay rule previously carved out by Ares v.Venner. He was also satisfied that the two general requirements of necessity and reliability were met. The records had been destroyed and the chiropractor was a disinterested person with a peculiar means of knowledge. The record had been made before the cause of action arose. (see p. 265)

Collier v. Cabrera (1992), 12 C.P.C. (3d) 60 (Ont. Gen. Div.)

The plaintiff in a personal injury lawsuit claimed loss of income, contending that it was her evidence that shortly before the accident she had decided to accept gainful employment after having spent several years as a housewife. She claimed to have been interviewed for a job at a nursing home, but was unable to call anyone at the nursing home who could confirm that the interview took place or that a job offer had been made. Admissible evidence showed that the plaintiff had been updating herself by taking courses and had obtained a revival of her RNA certificate.

Killeen, J., calling the case “close to the line,” concluded that against that background the evidence was admissible under the twin criteria of the Smith and Khan cases. The defendant would be able to cross-examine the plaintiff on the question to test her credibility and had an opportunity to make its own independent investigation.

Conclusions

The introduction of the “principled approach” to hearsay evidence appears to have had more impact in the criminal arena. In 10 years of post- Khan litigation, there are still relatively few civil cases in which the new hearsay rule has been discussed in any depth. What does seem clear though, is that hearsay law has become somewhat less predictable for litigants.

Ontario courts appear content to apply existing exceptions to the traditional rule whenever possible, although it is clear that they no longer feel constrained by traditional rules in the appropriate circumstances.