“The father tenders an Ottawa Police Occurrence report and file notes made by social workers employed by the Ottawa Children’s Aid Society. All of these documents are attached as exhibits to his own affidavit.
Section 35 of the Evidence Act addresses the admissibility of business records:
35 (1) In this section,
“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“entreprise”)
“record” includes any information that is recorded or stored by means of any device. (“document”) R.S.O. 1990, c. E.23, s. 35(1).
Where business records admissible
(2) 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 such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. R.S.O. 1990, c. E.23, s. 35(2).
Notice and production
(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same. R.S.O. 1990, c. E.23, s. 35(3).
Surrounding circumstances
(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility. R.S.O. 1990, c. E.23, s. 35(4).
Previous rules as to admissibility and privileged documents not affected
(5) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged. R.S.O. 1990, c. E.23, s. 35(5).
Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977) 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750 (HC) remains the foundational case in Ontario with respect to the fundamentals of the admissibility of business records. Note that Setak does not admit evidence otherwise inadmissible simply because it is in a business record. For example, expert opinions contained in a business record are not admissible as part of the business record. Nor is recorded hearsay from third parties who are not under a business duty to report the information.
The court in Setak stated the following at pages 761, 762 and 763:
In this case, I have no hesitation in holding that the minutes are admissible under s. 36, as prima facie proof of what actually transpired at the meetings, including the following:
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- That the meetings were held on the dates shown, with the persons described as being present actually present.
- That the reports described as having been made in the minutes were in fact made at the meeting.
- That where indicated, one of the persons attending did, in fact, undertake to follow a certain course of action.
- That where indicated, an agreement was reached or formalized between the parties on any point or issue.
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A writing or record made in the regular course of business consists in its simplest form of a record by the maker on the basis of his own personal observations and knowledge, and there can be no objection to the minutes being offered for statements attributable or events that they say happened at the time or within a reasonable time of the meeting.
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… the minutes may not be received to prove the validity of any opinion expressed at a meeting. I say that, regardless of who offered the opinion….unless given by a duly qualified expert.
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… The Act was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe s. 36 as admitting hearsay evidence of any third party would make the section as almost limitless dragnet for the introduction of random testimony from volunteers outside the business whose information would be quite beyond the reach of the usual test of accuracy. In my opinion, s. 36 of the Evidence Act should be interpreted as making hearsay statements admissible when both the maker of the writing or the entrant of the record, and the informant or informants, if more than one, are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event.”
DiGiorgio v. DiGiorgio, 2020 ONSC 1674 (CanLII) at 48-51