Court File and Parties

Court File No.: Gore Bay D18-0018 Date: 2019-01-07 Ontario Court of Justice

Between:

Denise Flood and Tom Flood Applicants

— And —

Janene Flood and Ron Ollington Respondents

Before: Justice V. Christie

Heard on: December 20, 2018

Reasons for Judgment released on: January 7, 2019

Counsel

Réjean Parisé ........................... counsel for the applicants

Lance Talbot ............................ counsel for the respondent, Janene Flood

Stacy Haner ............................. counsel for the respondent, Ron Ollington

Endorsement

CHRISTIE J.:

[1] The applicants have brought and argued a motion requesting an order that the records of the Greater Sudbury Police Service and Children's Aid Society of the Districts of Sudbury and Manitoulin, as those records relate to Janene Flood and Ron Ollington and the child, E., born […], that were received by the parties, be declared admissible evidence as to the truth of their content.

[2] Both respondents oppose such an order being made in such a general way. The respondents concede that certain documents will be admissible, however, they take the position that documents that contain inadmissible hearsay and opinion evidence should not be admissible for the truth of their content. The respondents suggest that counsel should have a discussion about which documents are conceded as admissible and that the admissibility of the remaining documents that cannot be agreed to should then be decided by this court.

Procedural Background

[3] Denise and Tom Flood are the maternal grandparents of E., born […]. Janene Flood and Ron Ollington are the biological parents of E. E. has been residing with and in the care of the maternal grandparents since September 10, 2017.

[4] According to Janene Flood, she was moving houses in September 2017 and, therefore, lacked a stable residence for approximately two weeks. She believed that E. would benefit from being in the care of her maternal grandparents. Upon moving into her new residence at the beginning of October 2017, Janene Flood contacted her mother to have E. returned and was informed by her mother that she had contacted the Children's Aid Society stating that she did not want E. returned to the care of Janene Flood. The applicants have raised many concerns in their affidavit materials concerning the lifestyle and household of Janene Flood and Ron Ollington, including domestic violence and alcohol abuse.

[5] On October 27, 2017, Janene Flood agreed to a voluntary kinship placement arrangement placing E. in the care of Tom and Denise Flood.

[6] Sometime in early 2018, Janene Flood retained a lawyer, Lance Talbot. On February 3, 2018, the Society was advised that Janene Flood sought to have E. returned to her care. Subsequently, Mr. Talbot wrote to the Children's Aid Society and advised that Janene Flood was terminating the voluntary kinship placement. Mr. Talbot also wrote to the applicants on February 3, 2018 asking for the immediate return of E.. The letter also indicated that if they intended to seek a custody order, Mr. Talbot was prepared to accept service of any pleadings and asked that the matter be commenced in Sudbury.

[7] These court proceedings commenced in Gore Bay in mid February 2018 with an emergency motion brought by the applicants requesting an order for sole custody of the child, E. Further the motion requested an order that access by the respondent, Janene Flood, be arranged by the parties and at the discretion of the applicants, and may be supervised by a responsible adult determined by the applicants. Finally, the motion requested an order that the respondent, Ron Ollington, have no access to the child, or in the alternative, the access be at a supervised access centre. At the same time, the applicants commenced an application requesting the same relief.

[8] Also, at that time, Janene Flood brought a motion for the immediate return of E. to her care and custody, and for an order transferring this matter from Gore Bay to the City of Greater Sudbury.

[9] On February 22, 2018, with the consent of Janene Flood, and on a temporary without prejudice basis, an order was made that the applicants have temporary care of the child, E., until further order of the court and that the respondent, Janene Flood, would have supervised access.

[10] On May 31, 2018, an order was made for questioning of both of the respondents, on the consent of counsel for Janene Flood. Janene Flood and Ron Ollington arrived late to court and were advised of what had occurred. Mr. Ollington was advised of the need to file his answer. Mr. Ollington indicated that he would like the matter moved to Sudbury.

[11] In July 2018, the applicants brought a motion for various records to be produced, specifically records of the Children's Aid Society of the Districts of Sudbury and Manitoulin, and records of the Greater Sudbury Police Service relating to Janene Flood and Ron Ollington, and further requesting that Ron Ollington be noted in default, having not filed an answer to the application which had been served upon him nearly five months earlier.

[12] On July 26, 2018, the court ordered the production of the records to be deposited with the court, subject to further argument from the parties before release. Further, there was an indication that Mr. Ollington, who was not present, might be retaining Stacy Haner, and he requested and was granted an extension to provide his answer to August 30, 2018.

[13] On August 22, 2018, Mr. Ollington provided an answer and a notice of motion requesting supervised access through the supervised access centre.

[14] On August 28, 2018, the applicants brought a motion for an order declaring that Mr. Ollington's motion was not served pursuant to Rule 6 of the Family Law Rules and should not proceed. Further, the applicants requested that orders for the release of police and CAS records be issued by the court, notwithstanding the failure by Mr. Ollington to approve the draft orders. Finally there was a request that the motion for access by Mr. Ollington be scheduled to be argued on a date after receipt of the police and CAS records.

[15] On August 30, 2018, it was ordered on consent that the production of the records, previously ordered, could be made directly to the parties and that it was no longer required that the records be deposited with the court as ordered on July 26, 2018. It was determined that the motion by Mr. Ollington was not served properly and was therefore adjourned to September 27, 2018.

[16] On September 27, 2018, there was a continued case conference. At that time, there was an indication by Mr. Parisé on behalf of the applicants that they wished to have the involvement of the Office of the Children's Lawyer. The respondents did not consent to this order being made, therefore, Mr. Parisé indicated his intention to bring a motion for this relief. Further, both of the respondents indicated their intention to bring motions for increased access.

[17] The very next day, September 28, 2018, the applicants served and filed a notice of motion requesting an order, pursuant to sections 89 and 112 of the Courts of Justice Act, that the Office of the Children's Lawyer be requested to cause an investigation to be made of the circumstances of the claims for custody and/ or access to the child, E.

[18] On October 24, 2018, the applicants, by way of Notices to Admit, sought the position of the respondents as to whether the records of the Children's Aid Society of the Districts of Sudbury and Manitoulin and the Greater Sudbury Police Service could be admitted as both genuine and as to the truth of their content.

[19] On November 5, 2018, Janene Flood filed a motion requesting an order for the immediate return of the child, E., to her care and custody, or in the alternative, either overnight access on alternating weekends or unsupervised community access visits. Also, Janene Flood requested that the case be transferred to Sudbury. On November 6, 2018, Ron Ollington filed a motion for access to occur at the supervised access centre.

[20] On November 9, 2018, both respondents sent responses to the request to admit indicating that they did not admit that any of the documents from the Greater Sudbury Police Service or the Children's Aid Society of the Districts of Sudbury and Manitoulin were genuine or true.

[21] On November 14, 2018, the applicant filed a motion requesting an order that the records of the Greater Sudbury Police Service and Children's Aid Society of the Districts of Sudbury and Manitoulin, as those documents relate to Janene Flood and Ron Ollington and the child, E., born […], that were received by the parties, be declared admissible evidence as to the truth of their content.

[22] On November 22, 2018, the motion for OCL involvement was argued. On November 26, 2018, this court granted the motion for OCL involvement. The OCL has not yet confirmed their involvement and this is still pending.

[23] Other motions have been adjourned to January 17, 2019.

Analysis

[24] Evidence is not to be received by the court unless it is admissible. In order to be admissible, the piece of evidence must be:

1. relevant, in other words, it must have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence; and

2. not subject to exclusion under any other clear rule of law or policy.

See: R. v. Morris, [1983] 2 S.C.R. 190

[25] The documents sought to be admitted in this case are in two categories: 1) records from the Greater Sudbury Police Service, which include occurrence reports, supplementary occurrence reports, occurrence summaries, arrest reports, witness statements and general reports; and 2) records of the Children's Aid Society of the Districts of Sudbury and Manitoulin, which include case notes, correspondence, medical records, and other documents.

[26] Ultimately, this court will need to decide which custody and access arrangement is in the child's best interests and consider the factors set out in section 24 of the Children's Law Reform Act in reaching this decision. This section reads as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

Past Conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

The wording of section 24 of the Children's Law Reform Act makes it clear that these considerations by the court are mandatory.

[27] In making determinations regarding custody and access, the court must consider the "best interest" factors set out above, along with all other relevant considerations. No one "best interest" factor is given more importance than the others. The court must ascertain a child's best interests from the perspective of the child rather than that of the parents. The children's views and preferences are a factor in the best interests analysis. See: Gordon v. Goertz, [1996] 2 S.C.R. 27; Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.); Mattina v. Mattina, 2018 ONCA 64

[28] It is in the context of determining which custody and access arrangement is in the child's best interests that this court is being asked to consider the admissibility of these documents for the truth of their content. Context is critical in making these decisions.

[29] There will be some complex factual issues to consider in this case, given that the views of the parties are diametrically opposed, including, but not limited to:

(1) the dynamics of the relationship between Ron Ollington and Janene Flood, including allegations of domestic violence;

(2) whether E. was present to witness any domestic violence;

(3) the current state of the relationship between Janene Flood and Ron Ollington, whether the relationship is expected to continue, and whether domestic violence is expected to continue;

(4) displays of anger and aggressive behaviour by Janene Flood in the presence of or directed at E.;

(5) any substance abuse issues that Janene Flood has had in the past and continues to experience;

(6) the financial stability of Janene Flood to care for E.;

(7) any substance abuse issues that Ron Ollington has had in the past and continues to experience;

(8) displays of anger and aggressive behaviour by Ron Ollington in the presence of or directed at E.;

(9) E.'s views of her past and current living arrangement;

(10) E.'s view of the people in her life

[30] Any reliable information that the documents can provide on these issues would be of great assistance in determining the facts in this case, as there is great disagreement between the interested parties. The records proposed for admission would most certainly be relevant to the custody and access arrangement to be determined in this case. The police and society records are relevant to a consideration of:

(a) the true nature of the relationship between Janene Flood and Ron Ollington, including whether the relationship is continuing or likely to continue in the future contrary to the pleadings of the parties;

(b) the true nature of the relationship between all of the relevant parties historically and how it is likely to continue in the future;

(c) the true nature of the involvement of the parents, grandparents and other extended family members in the life of E. historically, and how it is likely to continue in the future;

(d) the ability and willingness of each of the parents to put E.'s needs and interests above their own, with consideration of whether either of the respondents are continuing to use or abuse substances;

(e) whether domestic violence has in the past or is continuing to occur in the home, and whether that violence, if any, has occurred or is likely to occur, in the presence of E.; and

(f) whether the parties are willing to comply with court orders, considering their past records of doing so or not doing so

[31] The applicants point to a number of areas in the pleadings and transcripts of the examinations for discovery that are contradictory to each other or which may be contradicted by the records. While these examples will not be referenced specifically in this decision, this court has reviewed various portions of the pleadings and transcripts in coming to this decision. This court has also reviewed the documents proposed for admission.

[32] Ultimately, this court will be asked to decide which custody and access arrangement is in the best interests of E.. In making this decision, the court must consider the factors in section 24 of the Children's Law Reform Act along with other relevant considerations. Documents relating to the past criminal conduct or allegations of criminal conduct by Janene Flood and Ron Ollington, as well as documents relating to the involvement of the Children's Aid Society, are most certainly relevant to a consideration of:

(1) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(2) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(3) the permanence and stability of the family unit with which it is proposed that the child will live; and

(4) the ability of each person applying for custody of or access to the child to act as a parent, including a consideration of historical and ongoing substance abuse and domestic violence.

[33] Finally, it would not appear that either of the respondents are arguing that the documents are not relevant.

[34] For all of these reasons, the records are most certainly relevant.

[35] The bigger question is whether these records are subject to an exclusionary rule. Given that the evidence sought to be introduced is documentary in nature, it therefore amounts to hearsay. However, documentary evidence can be admitted, without calling oral evidence, in certain circumstances.

[36] The applicant argued that these records are business records and that in this context, a family law proceeding, the records would be governed by the Ontario Evidence Act, R.S.O 1990, Ch. E.23, specifically sections 31, 32, 34.1 and 35. Further, the applicant relied on the case of R. v. A.P., [1996] O.J. No. 2986 (C.A.) and argued that at common law, these records would be admissible as an exception to the rule against hearsay given that these documents would amount to public documents created by public officials.

[37] Having viewed these sections, it is the view of this court that sections 31 and 32 of the Ontario Evidence Act have no applicability to this case. The records of the Greater Sudbury Police Service and the Children's Aid Society of the District of Sudbury and Manitoulin are not books of accounts of municipalities and government departments as contemplated by those sections. This court has not been provided with any authority to support the conclusion that the records sought for introduction in this case fall within this category.

[38] Further, the police and society records at issue in this case would not meet the definition of a "public document". In R. v. A.P., [1996] O.J. No. 2986 (C.A.), as relied on by the applicant, the trial judge had refused to admit copies of original court documents, specifically the information and probation order, into evidence. On appeal, the court stated:

14 At common law statements made in public documents are admissible as an exception to the rule against hearsay evidence. This exception is "founded upon the belief that public officers will perform their tasks properly, carefully, and honestly." Sopinka et al. The Law of Evidence in Canada (1992), p. 231. Public documents are admissible without proof because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them. Rand J. commented on the rationale for the public documents exception to the hearsay rule in Finestone v. The Queen (1953), 107 C.C.C. 93 at 95 (S.C.C.):

The grounds for this exception to the hearsay rule are the inconvenience of the ordinary modes of proof and the trustworthiness of the entry arising from the duty, and that they apply much more forcefully in the complex governmental functions of today is beyond controversy.

15 A "public document" means "... a document that is made for the purpose of the public making use of it, and being able to refer to it." Sturla v. Freccia (1880), 5 App. Cas. 623 (H.L.) at 643. English and Canadian cases have generally prescribed four criteria for the admissibility of a public document without proof.

(i) the document must have been made by a public official, that is a person on whom a duty has been imposed by the public;

(ii) the public official must have made the document in the discharge of a public duty or function;

(iii) the document must have been made with the intention that it serve as a permanent record, and

(iv) the document must be available for public inspection.

[39] It is the view of this court that the police and society records at issue in this case are not "public records". Neither of these groups of documents are available to the public at all. The police records, in fact, are generally only provided to the Crown Attorney's office and to the accused person, and usually only to the accused person if they agree to certain conditions on restricted use of the documents only for the purpose of their defence. Children's Aid Society records, when provided to parties, are generally restricted to certain parties and again restricted to certain use, and often are only provided pursuant to court order. There is nothing public about either of these sets of documents. The documents in question in A.P., being an information and a probation order, are documents that the public can request access to simply by attending a court office, subject to the limitations in A.P. due to the fact that the records involved a young person. The documents at issue in the case at bar are not similar to the records at issue in A.P. and, in the view of this court, are not public records. Defining either the police records or society records as "public records" would be dangerous indeed, affecting the privacy of many individuals. There is nothing public about either of these sets of documents. [See also Levac v. James, 2016 ONSC 7727, [2016] O.J. No. 6337 (S.C.) (appeal allowed for other reasons at [2017] O.J. No. 5704 (C.A.)), where it was stated that the court may refuse to admit the evidence, notwithstanding that the criteria for admissibility for a public document have been satisfied, if the court is not satisfied about the reliability of the document or if the court concludes that the admission of the evidence would be unfair.]

[40] Finally, the applicant relied on sections 34.1 and 35 of the Ontario Evidence Act. Given that section 34.1 really deals with authentication and the best evidence rule, this does not truly affect the admissibility of the documents, if the documents would otherwise qualify as a business record under section 35. The respondents have not argued that the documents lack authenticity. Therefore, the real issue left to be decided is whether these documents qualify as "business records" pursuant to section 35 of the Ontario Evidence Act.

[41] Section 35 of the Ontario Evidence Act states:

35.--(1) In this section,

"business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; ("enterprise")

"record" includes any information that is recorded or stored by means of any device. ("document")

(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.

(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.

(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.

(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.

[42] It is of note that in the Canada Evidence Act, R.S.C. 1985, Chap. C-5, specifically section 30(10), a record made in the course of an investigation or inquiry is not rendered admissible by application of the section relating to business records. No such similar wording exists in the Ontario Evidence Act.

[43] The case most often cited respecting the interpretation of section 35 of the Ontario Evidence Act is the case of Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al., [1977] O.J. No. 2226 (Ont. H.C.). In that case, Justice Griffiths was dealing with the admissibility of minutes of meetings. The court stated:

20 Prior to the decision of the Supreme Court of Canada in Ares v. Venner, an exception to the hearsay rule for declarations made in the course of a business duty was recognized at common law. To render such declarations admissible under that exception, the declarant had to be dead, he must have been under a duty to record the particular act, the declarations must have been made contemporaneously with the acts to which they related, and the declarant must have had personal knowledge of the facts so recorded. A fourth condition of admissibility, as I understand the cases, was that the maker of the statement must have had no motive to misrepresent the facts.

21 In Ares, the common law exception was broadened to remove the requirement that the maker of the statement be dead.

22 The Supreme Court of Canada dealt with the admissibility of notes made by nurses in hospital records. The nurses were not only alive, but were present in the court-room. Hall, J., held as follows, at p. 626 S.C.R., p. 16 D.L.R.:

Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses' notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished.

23 That case settles the common law in Ontario. Although the statement refers only to hospital records, it may be inferred that this decision also settles the law applicable to records of other businesses made in similar circumstances.

24 In my opinion, the common law exception applies only to writings or records made by a person speaking from personal observation or knowledge of the facts recorded. In the Ares case, the nurses were recording observations they had made of the plaintiff as a patient and the entries thereof described matters within their personal knowledge. In my view, the minutes here do not meet this requirement of the common law exception; the authors of the minutes did not have personal knowledge of all of the facts recorded. At most, it can be said that Mr. Dinniwell or Mr. Croil had personal knowledge that the statements attributable to those who attended the meeting, which were duly recorded in the minutes, were in fact made, and it is on this narrow basis only that I would admit the minutes under the common law as modified in Ares v. Venner.

25 The question then remains as to whether under s. 36, these minutes may be admitted for a broader purpose.

40 In my view, if the writings or records offered in evidence fall within the broad wording of s. 36 and satisfy the criteria of that section, then they should be admitted, even though they do not fall into the category of what are commonly considered to be business records, such as ledger accounts, time-cards, pay-roll records, and other routine commercial records at which the legislation was primarily, but obviously, not exclusively aimed.

44 … although at common law the motive to misrepresent may have been a ground for rejecting business records under the Ares v. Venner exception to the hearsay rule, s. 36 makes no reference to motive, but on the contrary, s-s. (4) says:

36(4) The circumstances of the making of such a writing or record ... may be shown to affect its weight, but such circumstances do not affect its admissibility.

… It is my view that once the writings or records meet the criteria of s. 36, the Court has no discretion as to whether or not they should be admitted, but may in the circumstances attach no weight to them. It seems to me that all of the evidence should be considered and this in itself is a sound reason for not excluding the minutes at the time of their admission, solely because it appears on the evidence of the witness testifying there may have been some motive to misrepresent or even that the writings were maintained for purely self-serving purposes, because when all the evidence is in and all of the circumstances surrounding the making of the writing may then be considered, the Court may well conclude on balance that the writings or records were perfectly reliable and accurate.

46 Reverting then to the wording of s. 36, once it is clear that the writings or records were made in the course of a business in the sense that they related to the operation of a business as defined, as opposed to some purely private or personal activity, then the party intending to introduce in evidence the writings or records must satisfy two further criteria as pre- conditions to admissibility, namely, (1) that the writing or record was made in the usual and ordinary course of a particular business, and (2) that it was in the usual and ordinary course of business to make such a writing or record at the time of or within a reasonable time after the act, transaction, occurrence, or event to be established by the introduction of the writing or record.

57 Where the minutes appear to record an oral statement attributable to one of the persons present, I see some difficulty however, in admitting the minutes as prima facie evidence of any act, transaction, occurrence or event described in such a statement. …

58 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 to Dinniwell or Croil in proof of any acts, transactions, occurrences or events that they say happened at the time or within a reasonable time of the meeting.

59 However, on the basis of the decision of my brother Brooke, J., as he then was, in Adderly v. Bremner, [1968] 1 O.R. 621, 67 D.L.R. (2d) 274, 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. I interpret his reasons as applying to those opinions which would not be accepted as evidence unless given by a duly qualified expert. Where the minutes contain opinions of that nature, they may not be used to establish the validity of such opinions.

60 It is clear that by virtue of s. 36(4) lack of personal knowledge by the maker does not affect the admissibility of the writing or record, and that entries may be based upon information furnished to the maker by others. That seems to me to be a reasonable construction without in any way torturing the meaning of the section, and obviously the section contemplated admission of hearsay evidence. The question is, to what extent does it open the door for the admission of pure hearsay, to prove the acts, transactions, occurrences or events described in such hearsay? May the writings be used to establish as proof of the contents statements made by any third party and duly written down or recorded by an entrant acting in the regular course of business?

61 Although s. 36 and the comparable American provisions would seem, on their face, to make such entries admissible, the New York Court of Appeals in the leading case of Johnson v. Lutz (1930), 253 N.Y. 124, held that an automobile accident report made by a policeman who did not witness the accident, and not made in the regular course of any business, profession, occupation or calling, was inadmissible; the report was based upon hearsay statements of third persons who were present at the accident. That case appears to have been decided on the ground that the observers who provided the information did not do so in the regular course of any business. According to the Johnson case, a business record falls within the statute only when the entrant and all his informants are acting in the regular course of business in entering or communicating the account of the recorded event. That is, both the entrant and the informant must have acted pursuant to a business duty to make the writing or record, to have their statement admissible. The majority of American decisions appear to follow the Johnson case.

62 Professor Wigmore in an early edition of his work (2nd ed., vol. 5, s. 1520) was critical of the Johnson case, suggesting that since the statute expressly rejects the necessity for personal knowledge on the part of the entrant, the only requirements are that the entrant be acting in the usual and ordinary course of business and that the record be made at or near the time of the event.

63 In my view, however, the limitations imposed by the Johnson case are sound and are in accord with the basic philosophy of the Act. 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 an almost limitless drag-net for the introduction of random testimony from volunteers outside of 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.

64 I should deal further with something I mentioned during the course of the argument, namely, the proposition that aside from whatever use may be made of these minutes under the provisions of s. 36 of the Evidence Act, they may have some evidentiary value at common law as well. It is well established that at common law, the statements made by an employee or agent within the scope of his duties may be received as admissions against his principal in litigation to which the principal is later a party. The admissions must have been made by the agent or employee as part of a conversation or communication which he was authorized to have with a third party. The authority for that is R. v. Strand Electric Ltd., [1969] 1 O.R. 190, [1969] 2 C.C.C. 264 (C.A.). Therefore, in so far as the minutes contain admissions made by representatives of the plaintiff or defendants, they may be regarded as prima facie proof of the truth of the contents thereof. I am also of the view where the minutes record statements made by the plaintiff's representatives and acquiesced in or consented to by the defendant's representatives, and thereby constitute admissions against the defendant, then such statements may be also accepted as prima facie proof of the truth of their content.

[44] In Robb v. St. Joseph's Health Care Centre, [1999] O.J. No. 523 (Ont. Ct. (Gen. Div.)), Justice Macdonald was dealing with an application by the plaintiffs to admit a memorandum referring to arrangements to set up an annual meeting. In her decision, Justice Macdonald referred to the Setak decision and stated as follows:

13 I remind counsel of an authority referred to me earlier in this trial. It is Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al. (Setak) (1977), 15 O.R. (2d) 750. In Setak, Griffiths J. canvassed the policy considerations that give use to s. 36 (now s. 35) of the Evidence Act. I set out some principles which emerge from Setak which, I hope, will guide counsel in this case. First, the record or writings must be made in the usual and ordinary course of business as opposed to some purely private or personal activity; second, the record or writing must have been made at the time of the event or within a reasonable time of the event; third, the circumstances surrounding the making of the document affects weight rather than admissibility; fourth, the documents, if created pursuant to a regular business duty, are presumed to be reliable; fifth, the policy consideration behind s. 35 are obvious but, for emphasis, I repeat them. It is to assist in the proof of an event on the assumption that the document which records or refers to the event is trustworthy and, depending on the circumstances surrounding the creation of the document, prima facie proof of the facts recorded therein; sixth, the mere fact that a document is in the possession of a party (and, as such, may appear in the affidavit of documents) does not cloak the document with proof of the truth of its contents.

[45] In Catholic Children's Aid Society of Toronto v. J.L. and W.R., Justice Jones dealt with the admissibility of police records and society reports in the context of s. 35 of the Ontario Evidence Act. She stated as follows:

10 Although the wording of section 35 appears to include almost every type of writing made by any type of operation, whether carried on for profit or not, there are serious limitations to admissibility built into the statute. Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd. (1977), 15 O.R. (2d) 750, 76 D.L.R. (3d) 641, 1977 CarswellOnt 626 (Ont. H.C.), remains the leading Ontario authority on the admissibility of business records and the interpretation of section 35 of the Evidence Act. In that case, Justice Griffiths set out, in some detail, the criteria for admissibility under the section and discussed the type of recording that would qualify. The following criteria emerge:

(1) the record must be made in the usual and ordinary course of business and it must be in the usual and ordinary course of business to make such a writing or record;

(2) the record must be made contemporaneously with the transaction recorded, or within a reasonable time thereafter;

(3) only records of "facts" can be admitted - note words in subsection 35(2) "an act, transaction, occurrence or event" and not records of expert opinion; and

(4) although there is no requirement that the maker of the record have personal knowledge of the facts recorded, he must be acting under a business duty and the informant must be acting under a business duty or the informant's statement must be otherwise admissible under the hearsay rule of exceptions.

11 It is important to note that, in Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd., supra, Justice Griffiths did not see section 35 as opening the floodgates to permit the admission of otherwise inadmissible evidence simply because it has been recorded in a business record. For example, he excluded expert opinions that might be recorded in the record and required the party seeking its admission to comply with the evidence rules relating to the admission of expert evidence. (This reasoning would apply equally to medical reports). Because of the absence of circumstantial guarantees of reliability, he also excluded recorded hearsay received from third parties who were not under a business duty to report the information……

[46] In Children's Aid Society of Toronto v. L.L., J.Z., and E.B., 2010 ONCJ 48 (Can LII), Justice Sherr relied on the analysis of Justice Jones above. In this case, Justice Sherr was also dealing with s. 50(1) of the Child and Family Services Act and trying to determine whether it permits a lower evidentiary standard with respect to past parenting and child protection cases. Ultimately, Justice Sherr stated as follows:

14 In Catholic Children's Aid Society of Toronto v. Jean L. and Willard R. (No. 3), supra, Justice Jones admitted the records under subsection 50(1), but gave no weight to risk assessment reports or the recorded comments or opinions of third parties, unless the comments or the opinions were confirmed by the parents or by other admissible evidence. This is an approach that appears to be more consistent with the themes set out in the "Goudge Report" and one that I have adopted in assessing the admissibility of the documents for past parenting. I note that the wording of subsection 50(1) of the Child and Family Services Act is permissive. It makes sense to me that the threshold reliability of documents must be achieved before a court should exercise its discretion to admit the documents.

15 With these principles in mind, I asked myself the following questions when determining the admissibility of each document:

1. Is it a proper business record under section 35 of the Evidence Act, following the criteria set out in that section?

2. Is the evidence within the business record otherwise admissible? Does it contain inadmissible opinion or second-hand hearsay?

3. Is the evidence relevant? In asking this, I addressed:

(a) Does it achieve threshold reliability?

(b) Does the probative value of the evidence exceed the prejudicial effect of its admission? and

4. If it is not admissible as a business record, is it admissible as evidence of past parenting?

16 I found that, to determine admissibility, it was essential to read each document thoroughly. I will deal with the admissibility of the documents produced on a document-by-document basis.

[See also: Catholic Children's Aid Society of Toronto v. A.D.M., 2016 ONCJ 742]

[47] Of course in the case at bar, the child protection legislation is not applicable.

Conclusion

[48] The documents tendered for admission in this case would meet the criteria as outlined in s. 35 of the Ontario Evidence Act. Given the definition of "business" as outlined in the Act, the Greater Sudbury Police Service and the Children's Aid Society of the Districts of Sudbury and Manitoulin would certainly fall into that definition. Further, the definition of "record" in the Act would also capture the documents tendered for admission in this case. None of the parties seem to be questioning that the writings and records made were made in the usual and ordinary course of business and that it was in the usual and ordinary course of such business to make such writings or records at the time or within a reasonable time thereafter. Therefore, all of the records are business records as contemplated in s. 35 of the Ontario Evidence Act.

[49] The real dispute in this case is centred around the reliability of the information contained in some of these documents, which the respondents contend includes impermissible hearsay and opinion evidence.

[50] All parties agree that the Setak case is the authoritative decision on this issue. This court agrees that the analysis from the Setak decision must be applied in this case, therefore:

(1) Section 35 of the Evidence Act should be interpreted as making hearsay statements admissible for the truth of their content when both the person recording the information and the person providing the information are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event.

(2) Witness accounts recorded that do not comply with (1) above will not be admissible for the truth of their content, unless the statement is from one of the parties to the litigation and amounts to an admission against interest, or otherwise satisfies some other exception to the hearsay rule or satisfies the principled approach to the hearsay rule.

(3) Where the documents contain opinions, the opinions expressed are not admitted for the truth of their content.

[51] Business records are generally admissible for the truth of their content because these records, due to the reason for and manner in which these records are created, have inherent reliability. Minutes of meetings are useless to a business unless those minutes record exactly what occurred. Accounting records are useless to a business unless those records are accurate. Similarly, police reports and society records are useless to the police service or society unless those records accurately record the events. However, the fact that the records accurately record what was said or done by the police or society does not make what was said true or the opinion useful. There is no inherent reliability in the information provided to the police or society. Allowing unreliable hearsay or opinion evidence to creep in through the use of this section would destroy the premise on which this section is based.

[52] Further, the approach suggested by this court is consistent with the jurisprudence that provides the courts with the authority to refuse to admit evidence notwithstanding that the criteria for admissibility have been satisfied, if the court is not satisfied about the reliability of the document or if the court concludes that the admission of the evidence would be unfair.

[53] It is unfortunate that counsel for the parties did not discuss the documents that they agree are admissible prior to the argument of this motion. The request to admit the genuineness and truthfulness of these documents was unfortunately met with a blanket negative response by both of the respondents. It would have been more helpful for the respondents to have discussed with counsel for the applicants which documents were conceded as admissible so as to narrow the issues and save time in this matter.

[54] Applying the analysis above in this case, this court has concluded that the documents tendered for admission will be admissible for the truth of their content when both the person recording the information and the person providing the information are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event. Further, the documents tendered for admission will be admissible for the truth of their content if the statement contained in the document amounts to an admission against interest, or otherwise satisfies some other exception to the hearsay rule or satisfies the principled approach to the hearsay rule. Where the documents contain opinions, the opinions expressed are not admitted for the truth of their content. Where the document contains inadmissible evidence, it should be edited, or if editing is not possible, excluded.

[55] The parties, of course, will be free to challenge the weight to be given to the information in the admissible documents.

[56] An order is made as follows:

(1) the records of the Greater Sudbury Police Service and Children's Aid Society of the Districts of Sudbury and Manitoulin, as the records relate to Janene Flood and Ron Ollington and the child, E., born […], that were received by the parties, are declared admissible evidence as to the truth of their content, subject to the restrictions noted above

(2) Counsel for the parties are to immediately review the documents proposed for admission with this ruling in mind, with a view to determining whether the parties can agree as to which documents are admissible

(3) If a disagreement still exists on certain documents, the parties are free to make submissions in court as to the admissibility of a particular document.

(4) Costs are reserved for submissions on the issue.

Released: January 7, 2019

Signed: Justice V. Christie