DATE: 20020620
DOCKET: C33389

COURT OF APPEAL FOR ONTARIO

RE:

ENID ROBITAILLE and JOHN STEVENSON (Plaintiffs/Appellants) and ANSPOR CONSTRUCTION LIMITED AND NUBERG & DALE CONSTRUCTION LIMITED trading as Nuspor Investments (Defendants/ Respondents)

BEFORE:

CHARRON, SHARPE AND SIMMONS JJ.A.

COUNSEL:

Chris Morrison

Gary Will

For the appellants

Daniel I. Reisler

Leanne N. Notenboom

For the respondent

HEARD:

June 14, 2002

On appeal from the judgment of Justice Keith Hoillett sitting with a jury dated November 25, 1999.

E N D O R S E M E N T

[1] [1] Ms. Robitaille broke her ankle when she slipped and fell in the parking lot of her apartment building while taking her dog for a walk on the evening of January 11, 1997. She and Mr. Stevenson appeal against a judgment dismissing their claims for damages against the owners of the building.

[2] [2] The appellants raise three grounds of appeal:

i. i. the trial judge erred in admitting those portions of the hospital records and an ambulance report that refer to the mechanism of the fall;

ii. ii. the trial judge erred in permitting the references to the mechanism of the fall contained in the hospital records and the ambulance report to be used as evidence of prior inconsistent statements of Ms. Robitaille; and

iii. iii. the trial judge erred in his instructions to the jury concerning the appropriate standard of care.

[1] [3] The appellants assert that the impugned references in the hospital records and the ambulance report are not properly admissible as business records under s. 35 of the Evidence Act, R.S.O. 1990, c. E. 23, because the record makers had no personal knowledge of the mechanism of the injury. They also claim that it was not in the usual and ordinary course of business to record this type of information, relying on testimony of the attending physician to the effect that the question of whether Ms. Robitaille fell over a chain or slipped on ice was not significant to her treatment.

[2] [4] We reject both assertions. First, the impugned references were not used for the purpose of proving the truth of their content but rather were relied on solely as circumstantial evidence of prior inconsistent statements potentially attributable to Ms. Robitaille. Given this use, it was unnecessary that the record makers have personal knowledge of the mechanism of the injury.

[3] [5] Second, we note that the appellants do not contest the general proposition that hospital records and ambulance reports meet the requirements of s. 35 of the Evidence Act. Rather they contend that these particular references do not meet that test. However, in our view, it is neither necessary nor practical to engage in a line by line analysis of the case specific utility of particular information to determine its admissibility when the information is contained in a document generally acknowledged to meet the threshold for admissibility under s. 35, when the document is made by record makers under a general duty to keep accurate records, and when the information appears to be in keeping with the general purpose for which the record is maintained. In our view, recording the mechanism of an injury in hospital records clearly meets this threshold.

[4] [6] Moreover, the trial judge did not err in permitting the jury to consider the impugned references as some evidence of prior inconsistent statements by Ms. Robitaille. The ambulance attendants and the attending physician were called as witnesses. Counsel for the defendant was prepared to call the nurse who would have given similar evidence to that of the doctor. Not surprisingly, none of these witness could remember their specific conversations with Ms. Robitaille. However, one of the ambulance attendants testified that it was his practice to ask a patient what had happened to her. The ambulance report made specific reference to certain information that was provided by the “patient’s husband”. It also referenced certain medical information of a very personal character. The attending physician gave evidence of his normal practice in recording information from third parties. Taken as a whole, the evidence was capable of supporting an inference that the impugned references were attributable to Ms. Robitaille. The trial judge made it clear to the jury that if a party denied making a prior inconsistent statement, it was up to the jury to determine whether the statement had been made. Although it may have been preferable for the trial judge to also caution the jury specifically that the records did not attribute the impugned references to any particular person, we are satisfied that this feature of the records was apparent as it was raised by counsel in closing argument and its significance would have been understood by the jury in the context of the evidence that they heard.

[5] [7] The appellants’ sole objection at trial to the trial judge’s instructions concerning the standard of care related to his response to a question the jury asked concerning the meaning of the term “reasonable” as it was used in the first question they were asked to answer, namely:

Did the defendants take reasonable care under the circumstances to see that the Plaintiff Enid Robitaille was reasonably safe while on the premises of 1251 King Street West on January 11, 1997?

The trial judge responded that the term “reasonable” carries “its ordinary, everyday meaning” and that what was reasonable was for them to decide “having regard to all of the circumstances disclosed by the evidence and it is measured by the person of ordinary prudence and not by someone of extraordinary conscientiousness”.

[6] [8] The appellants submit that the term “ordinary” may have confused the jury because “ordinary” prudence, or “customary” prudence, may not be reasonable in particular circumstances.

[7] [9] We would not give effect to this ground of appeal. The trial judge did not instruct the jury that reasonable care is the equivalent of “ordinary” or “customary” prudence. Rather, he told them, as he had stated in his original charge to which no objection was taken, that what was reasonable was a matter for the jury to determine “having regard to all of the circumstances” and “measured by the person of ordinary prudence”. “Ordinary prudence” and reasonable care having regard to all of the circumstances “measured by the person of ordinary prudence” are not the same thing.

[8] [10] The appeal is accordingly dismissed with costs to the respondents on a partial indemnity scale fixed at $10,000 on consent of the parties.

“Louise Charron J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”