Court File and Parties

COURT FILE NO.: 79524/12 DATE: 20190514 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

COLE PARLIAMENT, an incapable by his litigation guardian KIMBERELY YORK, JOHN PARLIAMENT, and KIMBERELY YORK personally Plaintiffs – and – D.W. CONLEY and V. PARK Defendants

COUNSEL: H. ELMALEH and M. Hershkop, for the Plaintiffs D. CRUZ D. Charach and J. Ur, for the Defendants

HEARD: May 13, 2019

S.J. WOODLEY

REASONS FOR DECISION RE ADMISSIBILITY OF EVIDENCE

Overview

[1] The plaintiffs seek an order that a note included in the Clinical Notes and Records of Dr. Conley dated December 17, 1999, be excluded from evidence in this proceeding.

[2] The note in issue purports to record a message received by the note-taker from a family member (Kimberley York’s father) providing information about the plaintiff Cole Parliament who was admitted to the Hospital for Sick Children on the date of the entry.

[3] More particularly, the note records hearsay evidence of a conversation between Mr. York and his daughter (the plaintiff Kimberley York) as follows: “Dr. C had told Kim to have head size checked”.

[4] The plaintiffs submit: a. the note is a hearsay statement that is not reliable and not necessary; b. the note is not properly a business record; c. the note is highly prejudicial to the plaintiffs; and d. the integrity of the trial process and trial fairness requires that the hearsay note not be admitted for consideration by the jury as a trier of fact.

[5] The defendants submit: a. The note is properly a business record as is evident from its’ placement within the Clinical Notes and Records of Dr. Conley; b. The plaintiffs have served both a Notice pursuant to section 35 of the Evidence Act and a Request to Admit, both dated April 17, 2019, that list therein the Clinical Notes and Records of Dr. Conley re: Cole Parliament, without exception; and c. The note otherwise is admissible as res gestae.

Issue

[6] Should the note dated December 17, 1999 contained in the Clinical Notes and Records be excluded from evidence in this proceeding?

Facts

[7] Cole Parliament was born on August 16, 1999 and is now a 19 year old living with permanent cognitive and physical disabilities as a result of brain injuries that he suffered as an infant from hydrocephalus.

[8] Cole was initially under the care of his family doctor, Dr. Conley.

[9] Dr. Conley saw Cole on September 3, September 21, and October 15, 1999.

[10] Dr. Conley’s notes record Cole’s weight and head circumference at each attendance.

[11] Dr. Conley’s note for the October 15, 1999 visit records the head circumference at the 97th percentile. The note states “will watch head size”.

[12] One of the disputed issues in this trial is the substance of the conversation between Cole’s mother, Kimberley York, and Dr. Conley on October 15, 1999.

[13] The Clinical Notes and Records of Dr. Conley contain an entry on December 17, 1999 wherein Cole’s grandfather, Mr. York, was noted as providing the following information by telephone to a staff member (identified as Mary Conley – Dr. Conley’s spouse): Dr. Conley “told Kim to have head size checked”.

[14] The plaintiffs dispute that Mr. York made such a statement. The defendants allege that the entry contained in the Clinical Notes and Records is reliable and is admissible as a business record.

[15] All parties who are connected to the note (Mary Conley, Mr. York, Kim York, and Dr. Conley) are anticipated to attend the trial as witnesses.

The Law and Analysis

[16] To be receivable evidence must be relevant, material and admissible. (See R. v. Candir (2009), 2009 ONCA 915, 250 C.C.C. (3d) 139 (Ont. C.A.); appeal to SCC dismissed 2012 SCC 22174).

[17] Evidence is admissible if the trier of fact is legally permitted to consider it. Evidence that the law does not permit to be considered is inadmissible, even if it is relevant and material.

[18] The law of evidence tends to address admissibility, typically leaving the evaluation or weighing of evidence to the common sense of triers of fact.

[19] Hearsay evidence is an out-of-court statement that is offered to prove the truth of its contents. The essential defining features of hearsay are: (1) the fact that an out-of-court statement is adduced to prove the truth of its contents; and (2) the absence of a contemporaneous opportunity to cross-examine the declarant. (See R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57).

[20] The general rule is that hearsay evidence is presumptively inadmissible.

[21] The hearsay rule is in place to improve accurate fact finding by excluding hearsay statements that may well be unreliable or that cannot be adequately tested. In this way the hearsay rule facilitates the search for truth.

[22] The fundamental concern underlying the rule against hearsay is the inability to test the reliability of hearsay statements. Our adversary system rests upon the calling of witnesses: a. who give their evidence under oath, b. whose demeanour can be observed, and c. who are subject to cross-examination by opposing counsel.

[23] Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence. Because hearsay evidence comes in a different form, it raises particular concerns. The general exclusionary nature of the hearsay rule recognizes the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves. (See R. v. Khelawon, supra, at para. 35).

[24] However, there are exceptions to the hearsay rule that allow the admission of hearsay in certain circumstances.

[25] Hearsay exceptions are governed by the same principles that underlie the hearsay rule. In fact, hearsay exceptions are in place to facilitate the search for truth by admitting into evidence hearsay statements that are reliably made or can be adequately tested.

[26] Hearsay evidence may be admissible under an existing hearsay exception or may be admitted on a case-by-case basis according to the principles of “necessity and reliability.” “Necessity and reliability” are the guiding principles for the admissibility of all hearsay. The existing hearsay exceptions must comply with these principles. If the hearsay exception does not conform to the principled approach it should be modified, where possible, to bring it into compliance.

[27] Based on the decision in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40 and affirmed by the Supreme Court of Canada in R. v. Khelawon, supra; R. v. Mapara, [2005] 1 S.C.R. 835, 2005 SCC 23 at 15; and R. v. Baldree, [2013] 2 S.C.R. 520, 2013 SCC 35, at 34 the following is a framework for considering the admissibility of hearsay evidence: i. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. ii. A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance. iii. In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. iv. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

[28] Where the evidence is admissible under an exception to the hearsay rule or under the principled approach, the judge may still exercise his or her residual discretion to exclude evidence and refuse to admit it if its prejudicial effect outweighs its probative value.

[29] At common law, statements made by a person under a duty to another person to do an act and record in the ordinary practice of the declarant’s business or calling are admissible in evidence provided that they were made contemporaneously with the facts stated and without motive or interest to misrepresent the facts. (See Ares v. Venner, [1970] S.C.R. 608).

[30] In addition to any common law exception, business records which includes medical records are expressly admissible by statute in Ontario pursuant to section 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 which provides for their admissibility as follows:

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).

[31] In the present case, both the plaintiffs and defendants provided notice of intention to tender the Clinical Notes and Records of Dr. Conley re: Cole Parliament at trial as required by s. 35 (2) of the Evidence Act.

[32] In order for the December 17, 1999 entry to be admissible as part of the business records, the entry must have been made in the usual and ordinary course of business and it must be the usual and ordinary course of business to make such a writing. The entry must also have been made contemporaneously at the time of the event or within a reasonable time thereafter.

[33] Lack of personal knowledge by the maker of the record does not affect the admissibility of the document although it may go to question of weight. (See Winnipeg South Child & Family Services v. S. (R.) (1986), 40 Man. R. (2d) 64 at 68 where no weight was given to second-hand hearsay evidence.)

[34] A review of the evidence relating to the December 17, 1999 entry suggests that the noting of information in Cole Parliament’s record appears to have been made in the ordinary course of business. On the day that Cole Parliament was admitted to the Hospital for Sick Children, his grandfather telephoned Dr. Conley’s office and provided an update as to Cole’s status and current treatment. The information was provided by telephone to Mary Conley who had worked at the medical office for many years. Mrs. Conley made a note of the identity of the informant and the information provided in Cole’s medical chart.

[35] Unlike the informant in Adderly v. Brenner, [1968] 1 O.R. 621 (Ont. H.C.J.), the informant Mr. York, did not seek to provide self-serving statements nor did he seek to avoid cross-examination on the information provided at trial. Instead, the information related to contemporaneous medical events that occurred that day (December 17, 1999) which included a reference to past discussion between Dr. Conley and Kimberley York that was related to the events unfolding on December 17, 1999.

[36] The fact that the December 17, 1999 entry contains details provided by Mr. York of a past discussion between Dr. Conley and Kimberley York which is double or triple hearsay – does not affect the characterization of the entry as a business record. Similarly the fact that the entry contains details of double or triple hearsay does not affect the admissibility of the entry. Instead, any issues or questions that attach to the December 17, 1999 entry as recorded in the clinical records goes to weight not to admissibility. (See L. (B.) v. Saskatchewan (Ministry of Social Services) (2012), 393 Sask. R. 57, 2012 SKCA 38).

[37] The entry in the Clinical Notes is not subject to exclusion merely because it is inconsistent with a prior entry nor because it is based on double or triple hearsay. The entry is part of the business record and is admissible. The jury will determine the weight, if any, to be applied to the entry.

[38] Any concern regarding the inability to test the reliability of hearsay statements will be fully satisfied at trial as the record keeper, the informant and the parties to the original conversation are all available to provide evidence at trial as witnesses. Accordingly, the jury will be in a position to observe: a. The witnesses give their evidence under oath, b. The witnesses’ demeanour, and c. The witnesses be subject to cross-examination by opposing counsel.

[39] The particular concerns otherwise raised by hearsay evidence will be satisfied. The trier of fact will be able to assess what weight, if any, is to be given to the entry that records a statement made by a person who will be seen and heard, and who will be subject to the test of cross-examination. There can be no fear that the hearsay evidence will be untested or afforded more weight than it deserves. (See R. v. Khelawon, supra, at para. 35).

[40] There is no evidence on the record before me that would indicate that the December 17, 1999 entry does not otherwise qualify as a usual and ordinary entry made in the ordinary course of business. The fact that the note-taker was also Dr. Conley’s spouse is not relevant to the consideration as there is no evidence of improper motive and there is no rule that would prohibit Mary Conley from testifying at this civil trial with respect to the entry.

Determination

[41] Having reviewed and considered the matter I find that the December 17, 1999 entry is admissible as part of the Clinical Notes and Records and shall not be excluded from the evidence at trial.

[42] Further, having found that the particular concerns raised by the inclusion of the hearsay evidence at trial will be satisfied through the trial process (examination and cross-examination of the witnesses) I decline to exercise my residual discretion to exclude the entry.

[43] For the reasons for decision set out herein the plaintiffs’ motion to exclude the December 17, 1999 note by Mary Conley in the Clinical Notes and Records is hereby dismissed.

S.J. Woodley Released: May 14, 2019

ONTARIO SUPERIOR COURT OF JUSTICE COLE PARLIAMENT, an incapable by his Litigation Guardian, Kimberley York, John Parliament and Kimberley York, personally – and – D.W. CONLEY and V. PARK REASONS FOR DECISION Justice S. W. Woodley

Released: May 14, 2019