Court of Appeal for Ontario
Date: December 31, 2019 Docket: C65552
Justices of Appeal: Lauwers, Fairburn and Zarnett JJ.A.
Between
Vladislav Bukshtynov, Katerina Bukshtynova, and Ksenia Bukshtynova Plaintiffs (Appellant)
and
McMaster University, Flying Angels Running Club, George Kerr, Hwang Lee and/or John Doe Runner Defendants (Respondents)
Counsel
Bonnie Roberts Jones and Bethanie Pascutto, for the appellant
Edward Key and Bradley Remigis, for the respondents Flying Angels Running Club, George Kerr, and Hwang Lee
Alexander Paul and Kaleigh Sonshine, for the respondent McMaster University
Heard: September 25, 2019
On appeal from the judgment of Justice Alan C.R. Whitten of the Superior Court of Justice, dated August 20, 2018, sitting with a jury.
Fairburn J.A.:
A. Overview
[1] The appellant was jogging on an indoor track at McMaster University when Hwang Lee, a member of the Flying Angels Running Club, ran into him from behind. The appellant suffered a serious injury and required surgery to his shoulder. He sued McMaster University, Mr. Lee, the Flying Angels Running Club, and its coach, George Kerr.
[2] No negligence was found on the part of McMaster University or Mr. Lee. While the Flying Angels Running Club and Mr. Kerr were found negligent, the jury determined that the appellant had contributed to the incident by failing to move running lanes when asked to do so. The jury found the appellant to be 40 percent contributorily negligent. In the end, including prejudgment interest, the plaintiffs collectively received around $80,000 net in damages.
[3] The appellant advanced four grounds of appeal. The trial judge is said to have erred:
(i) in his charge to the jury when he described the inner lane of the track as the "default lane";
(ii) in ruling that an email authored by a track employee who did not testify was inadmissible;
(iii) in ruling that a letter sent by McMaster University to the Ontario Ministry of Labour was inadmissible; and
(iv) in ruling that a chart created by a subrogation reimbursement vendor for two U.S. insurers was inadmissible.
[4] For the reasons that follow, I would dismiss the appeal.
B. Analysis
(1) The Charge to the Jury on Lane One
[5] It was a busy day at the four-lane, 200 metre indoor track. It was uncontested at trial that a bobsled team was using lanes three and four. Nor was it contested that the Flying Angels Running Club was using lane two for speed endurance runs. The incident happened in lane two.
[6] Coach Kerr testified that he asked the casual joggers who were there that morning to move to lane one. He spoke to at least six to eight people without incident. He specifically asked the appellant if he "wouldn't mind staying in lane one or on the inner red" as the runners "were limited to the two lanes that day because of the bobsled" activity that was taking place.
[7] Although the appellant's evidence varied somewhat from Mr. Kerr's, he acknowledged that he had been asked to move. He said that he was told to move to the shoulder area because lanes one and two were being used for sprints.
[8] In his charge to the jury, the trial judge described lane one as the "default lane". The impugned instruction, set in its proper context, follows:
So, you have a scenario where given the presence of the bobsled team in three and four and the use of lane two by the Flying Angels, the default lane for joggers would be lane one, otherwise there's inevitably going to be a safety issue as the plaintiff had complained of. [Emphasis added.]
[9] The appellant argues that the trial judge erred in describing lane one as the "default lane". He maintains that this description made it sound like lane one was the official default lane for slower runners. He says that this would have left the jury with the impression that he was breaching an official rule by jogging in lane two. He argues that this mischaracterization of lane one as the "default lane" would have adversely impacted upon the jury's determination of contributory negligence.
[10] I do not agree that the jury would have suffered any confusion on this point.
[11] First, describing lane one as the "default lane for joggers" accords with the evidence in this case. Read in context, the trial judge's description of lane one does not suggest an official rule that lane one was only for joggers. Rather, it describes the practical reality of the situation at the indoor track on the day of the incident. Lanes two to four were, for all intents and purposes, occupied. Multiple witnesses testified that the bobsled team was occupying lanes three and four and that the Flying Angels were running sprints in lane two. By process of elimination, or by "default", that left lane one for the slower runners.
[12] Second, even if one were to accept that the trial judge mischaracterized lane one, the jury knew that it fell within their sole domain to determine the facts in this case. They were carefully instructed that nothing the trial judge said should sway them in that fact-finding mission. The following instruction makes the point:
In no way are you bound to follow my comments or opinions so far as evidence is concerned. If your views vary from mine, or if you disagree with my comments about the evidence, you may not only disregard my views or opinion, it is your duty to disregard my comments.
[13] Accordingly, if the jury did not agree with the trial judge's characterization of lane one as the "default lane" for joggers, then they would have come to their own findings of fact in that regard.
[14] Finally, the jury's finding on contributory negligence is informative on this issue. The jury's conclusion makes it clear that they did not decide the issue on the basis that lane one was the "default" lane, but on the basis that the appellant refused to move lanes when asked to do so. The following excerpts from the appellant's testimony demonstrates that he refused to move to lane one:
Q. Right, and lane one, you could have moved into lane one. You could have run in lane one?
A. Again I didn't see any reason. If I was told by McMaster official that I am free to use … lane number two, why do I need to move to lane number one if I can continue my running at lane number, or just using lane number two? That's ridiculous. At least it's ridiculous to me.
Q. And so even if someone comes up to you and says, Would you mind moving over to lane one because we want to use lane two for sprints, you weren't going to move?
A. Say it again please.
Q. You were not going to move even if someone asked you to move over to lane one?
A. Why do I need to do this?
Q. Exactly. You weren't going to move even if you were asked.
A. No. If I have a right to do what I want to why [do I] need to change my mind?
[15] As recorded on the "Questions to the Jury" sheet, the jury concluded that the appellant was 40 percent contributorily negligent because he was "asked to move to a different lane, but he refused" and because a "reasonable person would take precautions (move to lane 1) to ensure his/her safety." Accordingly, the jury's finding on contributory negligence demonstrates that it was swayed by the fact that the appellant refused to move lanes when a reasonable person would have done so, not by the fact that lane one was a "default lane".
(2) The Inadmissibility of the Jordan Murray Email
[16] Jordan Murray was working at the front desk in the athletic centre where the track is located on the day of the incident. She was at the front desk – not at the track – when the incident occurred. Ms. Murray did not witness the incident. Having heard about it from others, she sent an email to her supervisor, Mr. T.J. Kelly. That email contains hearsay and double hearsay about what Ms. Murray heard from others about what had happened at the track. The passage from the email emphasized by the appellant during oral submissions follows:
THEN, Jeremy [Steinbach] came down and told us to call EFRT, because I guess George [Kerr], from The Flying Angels Track Club, was trying to reserve 2 lanes up there and telling community members they couldn't run in their lanes. One community member continued to do so and so he instructed his kid to just run him over, which he literally did, and dislocated the community member's shoulder.
[17] Ms. Murray was not called to testify at trial. Instead, the appellant attempted to enter the email during his questioning of Mr. Kelly. Counsel to McMaster University objected to the admission of the email on the basis that it was hearsay.
[18] At trial, the appellant took the position that the email was "akin to an incident report" and, therefore, should be admitted into evidence. He also said that it was relevant to what Mr. Kelly did as a result of the email – his state of mind. The trial judge ruled that the email was hearsay and, while the appellant could call Ms. Murray to testify, the email could not be filed in evidence. When Mr. Kelly was asked what he did as a result of receiving the email, he said that he "filed it".
[19] On appeal, the appellant argues that the email was admissible hearsay under the documents in possession rule. The appellant maintains that because Mr. Kelly "acted upon" the email, it was admissible for the truth of its contents. The appellant relies on R. v. Turlon (1989), 49 C.C.C. (3d) 186 (C.A.), at pp. 190-91, in support of that proposition:
Beyond this threshold issue the instruction was in error in another respect. In Phipson on Evidence, 13th ed. (1982), para. 21-09, it is stated:
Documents which are, or have been, in the possession of a party will, as we have seen, generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognised, adopted or acted upon them.
(Emphasis in original.) I accept this statement from Phipson as an accurate statement of the law. Knowledge of the contents of the letter was not a condition precedent to evidentiary value of the letter. Possession of the letter was evidence of knowledge or complicity in the scheme of drug importation and distribution. On the other hand, the respondent's denial that he knew the letter was in his briefcase was evidence to the contrary. The possession of the letter and the denial by the respondent were both part of the evidence as a whole to be considered by the jury.
[20] The appellant argues that had the email been admitted for the truth of its contents, it could have contradicted the viva voce evidence given by a number of other witnesses in the case. In other words, it would have provided "evidence" that the Flying Angels' coach had directed his runner to run into the appellant. At a minimum, the appellant argues that the email would have constituted strong evidence impacting on the apportionment of liability.
[21] The documents in possession rule does not assist the appellant.
[22] While documents found in the possession of a party may constitute original circumstantial evidence of the party's knowledge of their contents, there was nothing about Mr. Kelly's knowledge of the contents of the email that was relevant to the issues for determination at trial. The fact is that the appellant wanted the Murray email admitted into evidence for the truth of its contents. On appeal, the appellant acknowledges this fact and says that the documents in possession rule was the gateway to admissibility for that purpose.
[23] As a factual matter, Mr. Kelly testified that his only action in relation to the email was to file it. While it appears that a video from the track had been preserved by someone, Mr. Kelly testified that he "didn't take any steps to speak with security services to preserve any other video". As it related to the one video that had been preserved, Mr. Kelly testified that he did not know why that had been done.
[24] The receipt and filing of an email, and even the preservation of a video, is not the type of action contemplated in Turlon for triggering the exception to the hearsay rule. The hearsay exception arising from the documents in possession rule only applies where the hearsay statement is "acted upon" in the sense that it turns into an admission by the recipient. The simple filing of an email, or even the preservation of a video (had that occurred), is not the type of action contemplated by the documents in possession rule. Were that to be so, the rule would create a wide berth in terms of admitting hearsay statements for the truth of their contents.
[25] A related concern in this case is that the email itself contains at least double hearsay. The email recounted what Jordan Murray heard Jeremy Steinbach say about what he heard George Kerr say to his runners. The inadmissible nature of that evidence is revealed by simply asking whether, had Ms. Murray testified, she would have been permitted to recount this hearsay. The answer is clearly no, an answer that likely informs why she was not called to testify as a witness. As she was not present at the track, she had no relevant evidence to give.
[26] Finally, numerous witnesses testified about what had occurred at the track that day. A number of those witnesses are referenced in the Murray email. In particular, Mr. Steinbach testified about what he heard Mr. Kerr tell his runners. Mr. Steinbach said:
So once his group started to warm up and then run, he would instruct – he would tell, yell out 'track, track' if his athletes were running and people were in the way to hope to avoid collision. At a certain point and time after continually doing this, he had mentioned that if anyone got in their way to run into them.
[27] While Mr. Kerr denied having told his runners to run into anyone, the jury heard Mr. Steinbach's first-hand account of what he overheard the running coach say. Accordingly, even if the trial judge had been wrong in ruling the email inadmissible – which he was not – the jury had the salient information contained in the email before it for consideration. In these circumstances, there can be no suggestion of a substantial wrong or miscarriage of justice.
(3) Letter to the Ontario Ministry of Labour
[28] Within days of the incident, McMaster University wrote a letter to the Ontario Ministry of Labour, Occupational Health and Safety Branch. The letter reported that a "critical injury" had occurred at the workplace. Among other things, the letter addressed the "Steps taken to prevent a recurrence":
The McMaster University Athletics and Recreation Track Policy is available both online and in the area of the track. Follow up communication will take place regarding this policy to all parties involved in the incident.
[29] The letter also said that, based upon the results of a police investigation, McMaster University may also "take further actions as necessary."
[30] The appellant attempted to introduce the letter into evidence during the cross-examination of Mr. Kelly, the supervisor at the athletic centre. The appellant took the position that the letter was relevant in two ways. First, it showed that McMaster University considered that the accident was a serious one. Second, the appellant argued that the letter was tantamount to "an admission" by McMaster University that its practices at the time contributed to the accident and that "changes would make the area safer".
[31] The trial judge ruled the letter inadmissible, finding that the prejudicial impact of the letter outstripped its probative value. He said that the letter created an "air of official sanction", when in fact it was nothing more than a statutorily required report to the Ministry of Labour. The trial judge said:
I am a little concerned with this particular document that somehow it creates an aura of official sanction, or it attributes significance to something they had to do. They were obliged statutorily to do this. The witness has already testified as to the changes made. I think its probative value is somewhat limited in these circumstances. I'm inclined not to allow it to go in.
[32] The trial judge specifically rejected the appellant's argument that the letter showed that McMaster University had deemed that its own policies were responsible for the accident and not the appellant's behaviour. The trial judge suggested that the appellant was "trying to extract more significance out of this than it is due." He went on to observe that the letter was just a "reporting of an incident" and that:
[T]he fact that the university has to report to [the] Ministry of Labour, I think it is unnecessary in the circumstances. Really … it doesn't add anything. Whatever it does add is potentially inflammatory because it has potential for some kind of official sanction.
[33] The appellant argues that the trial judge erred in denying the letter's entry into evidence because it showed that McMaster University itself believed that its policies were inadequate or inadequately communicated to the parties involved in the incident. The appellant argues that the letter was stronger evidence of this point than the actual changes to McMaster University's signage in the track area after the incident.
[34] This ground of appeal cannot succeed.
[35] The trial judge sits in an especially privileged position, one where she or he is able to assess "the dynamics of the trial and the likely impact of the evidence on the jurors": R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73. Accordingly, the trial judge's decision to exclude evidence based upon a determination that its probative value is outweighed by its prejudicial effect is a discretionary one to which deference applies: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31.
[36] The probative value of evidence depends upon the context in which that evidence is proffered: Araya, at para. 31. As noted by the trial judge, the context in which the letter was authored is highly informative of its potential probity.
[37] McMaster University reported the incident because it was of the view that it was required to do so under s. 51 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"). Section 51(1) reads:
Notice of death or injury
51 (1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe. [Emphasis added]
[38] Section 1(d) of the regulations under the OHSA, Critical Injury – Defined, R.R.O. 1990, Reg. 834, defines "critically injured" as including a "fracture of a leg or arm but not a finger or toe". It is not in dispute that the appellant's shoulder injury fell within the definition of critically injured, such that the incident had to be reported in accordance with s. 51(1) of the OHSA.
[39] Section 5(1) of Health Care and Residential Facilities, O. Reg. 67/93, sets out the details that must be included in a written report required under s. 51(1) of the OHSA. Section 5(1)(h) requires that the report include reference to "the steps taken to prevent a recurrence."
[40] Considered against this legislative backdrop, the trial judge was right that the letter contained virtually no probative value. The reference to the injury being a "critical" one was simply a reference to the fact that the injury fell within the statutory requirements for notice.
[41] As for the reference to the "[s]teps taken", the letter did nothing more than reference the policy that was already in place at the time of the incident. Mr. Kelly provided viva voce evidence about those same details, about how the policy related to track usage and where it had been posted. Indeed, the policy itself was filed as an exhibit at trial.
[42] In these circumstances, deference should be shown to the trial judge's conclusion that the prejudicial impact of the letter, arising from the "aura of official sanction" outstripped the probative value of the letter.
[43] Even if the letter should have been admitted into evidence, its exclusion did not have an impact on the outcome of the trial. The rationale underlying the track policies at the time of the incident, and their evolution after the incident, were thoroughly canvassed through the witnesses, including Mr. Kelly. The jury was well-equipped to appreciate the appellant's position that McMaster University was negligent because it failed to adequately display and enforce policies that were necessary for the safety of runners in its facilities.
(4) Documentary Evidence Provided by Rawlings
[44] The appellant received healthcare benefits under two plans that were insured by Blue Shield of California and Florida Blue. Both plans allowed for what was referred to in the voir dire as a reimbursement claim. If a third party was found liable for his injuries, the appellant was required to repay the insurers for any insured treatments that were related to those injuries. The appellant's insurers contracted with Rawlings Company, a subrogation and reimbursement vendor, to collect from any award the appellant may receive at trial. If the appellant failed to reimburse Rawlings from any amount awarded to him at trial, the health insurance providers would be in a position to proceed against him.
[45] At trial, the appellant put forward two charts prepared by Rawlings Company. The Rawlings charts were said to reflect the amount paid to the appellant by Blue Shield insurance (US$15,343.44) and the amount paid by the Florida Blue insurance (US$368.95) for which reimbursement would be sought from the appellant.
[46] The Rawlings' employee who prepared the charts, which were said to itemize the appellant's insurance claims, did not testify. Instead, a lawyer from Rawlings testified on the admissibility voir dire by video link. She confirmed in cross-examination that the charts had only been prepared two weeks prior to her evidence. They were based on documents that the insurers had provided to Rawlings. The witness also confirmed that correspondence filed along with the charts as lettered exhibits on the voir dire stated that the actual author of the charts inquired of counsel to the appellant whether "any of the charges are unrelated to the accident." When asked about that comment on the voir dire, the witness testifying on behalf of Rawlings said that Rawlings would collaborate with parties to make sure they had "related claims included in a lien."
[47] The trial judge excluded the charts. He had concerns about their accuracy and what they reflected. As he said, his "immediate problem" was that the amounts reflected on the Rawlings' records did not even "dovetail" with the appellant's own calculations, something the appellant had earlier testified about.
[48] The trial judge also pointed out that the Rawlings' witness confirmed that the analyst who prepared the charts appeared to inquire of the appellant whether "any of the charges" were "unrelated to the accident." In other words, and as found by the trial judge, the analyst did not have the "necessary medical background or knowledge of the internal decisions made by either of the health insurance carriers."
[49] While the trial judge acknowledged that s. 35 of the Evidence Act, R.S.O. 1990, c. E.23, allows for records made in the usual course of business to be admitted as an exception to the hearsay rule, he relied on Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977), 15 O.R. (2d) 750 (Sup. Ct.), to exclude the records. He found that the charts reflected nothing more than a compilation of insurance carriers' records. While Rawlings was described as a compiler of business records, the trial judge pointed out that they engaged in that exercise "without the expertise or knowledge of what exists within the insurance providers."
[50] Ultimately, the trial judge excluded the Rawlings charts on the basis that they constituted "second hand compilations" of the insurers' records. Despite having excluded the charts, the trial judge allowed the appellant time to adduce the records of the insurance payouts from the insurance companies, even if the appellant had to call that evidence "outside the usual order in a trial". The appellant chose not to enter those records into evidence.
[51] The appellant argues that the trial judge erred by failing to admit the charts as a business records exception to the hearsay rule. The appellant maintains that the trial judge failed to appreciate that the proponent of the record need not have personal knowledge of the information contained in those records. Had the records been admitted into evidence, they would have demonstrated that the appellant should have received special damages for those amounts.
[52] The trial judge did not err in excluding the charts.
[53] It was open to the trial judge to exclude the charts. They reflected nothing more than a compilation of source documents from the insurers, which documents were created many years before and provided to Rawlings only shortly before the trial. Indeed, the charts were created only two weeks before the appellant's attempt to elicit them in evidence. The accuracy of the charts was very much in dispute, including, as the trial judge observed, as a result of the appellant's own evidence. Even the author of the charts questioned their accuracy when she asked the appellant's own counsel in correspondence whether any of the charges included in the chart were "unrelated to the accident".
[54] The business records rule, as contained within s. 35(2) of the Evidence Act, provides that records of an "act, transaction, occurrence or event" are admissible for the truth of their contents, if made in the "usual and ordinary course of any business" and if it was part of the "usual and ordinary course of such business to make such record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter." The Rawlings charts did not meet the requirements of s. 35(2) because the charts were not made in the usual and ordinary course of business and did not record acts, transactions, occurrences or events within a reasonable time of those events. Rather, the charts were more akin to a demonstrative aid than a record of transactions and, even then, the author of the charts seemed somewhat uncertain as to their accuracy. The trial judge was equally concerned, a concern that partially arose from the fact that the charts did not even match the appellant's own evidence regarding what had been paid by the insurers.
[55] As well, the Rawlings witness who testified on the voir dire was not familiar with the source documents. No one from Rawlings would have been sufficiently familiar, given that the source documents used to create the charts were not Rawlings' documents, but those of the insurance companies.
[56] Importantly, the trial judge extended to the appellant the opportunity to lead the relevant records from the insurers, ones that would have been admissible under s. 35 of the Evidence Act. Despite having been extended that opportunity, the appellant chose not to lead that evidence.
C. Conclusion
[57] I would dismiss the appeal.
[58] The appellant is ordered to pay costs in the agreed upon amount of $20,000 to the respondent McMaster University and $10,000 to the respondents Flying Angels Running Club, George Kerr, and Hwang Lee, H.S.T. and disbursements included.
Released: December 31, 2019
"Fairburn J.A."
"I agree. P. Lauwers J.A."
"I agree. B. Zarnett J.A."
