Skead, by her Litigation Guardian, the Public Guardian and Trustee et al. v. Chin et al.

[Indexed as: Skead (Litigation Guardian of) v. Chin]

Ontario Reports

Ontario Superior Court of Justice

Fregeau J.

March 9, 2020

151 O.R. (3d) 129 | 2020 ONSC 1484

Case Summary

Evidence — Hearsay — Exceptions to rule — Defendant physician scheduling appointment with plaintiff patient, who later cancelled — Defendant discussing cancellation with his assistant, who has since died — Discussion occurring only after defendant was served with statement of claim, two years after assistant's retirement — Statements by assistant to defendant met threshold reliability and were admitted for truth of their contents under principled exception to hearsay rule.

This was a voir dire to determine the admissibility of statements made to the defendant physician by his office assistant, since deceased. The defendant examined the plaintiff patient and scheduled a follow-up appointment that the plaintiff later cancelled. The defendant testified that he discussed the matter with his assistant, who recalled the incident because the plaintiff told her the reason for the cancellation was her father's death. The assistant offered to re-book the appointment but the plaintiff declined. The defendant testified that he asked his assistant about notes on a referral letter, and she explained that she had called the plaintiff and discovered that the phone number was not in service. She then called a contact number provided by the plaintiff and left a message to have the plaintiff contact the defendant's office as soon as possible. The defendant testified that he believed his assistant because she was a very reliable person with integrity and that he had no reason to doubt her. In cross-examination on the voir dire the defendant stated that the information given to him by his assistant was in response to questions he asked her after he received the statement of claim. The conversation took place about two years after the assistant retired. The defendant requested that the statements be admitted into evidence for the truth of their contents under the principled exception to the hearsay rule.

Held, the statements should be admitted.

The threshold reliability of the statements was met. Necessity was not an issue given that the assistant was deceased at the time of trial. The fact of the assistant's call to the plaintiff's defunct phone number was corroborated by the physical evidence of her note, and the fact of her call to the contact number was corroborated by the physical evidence of the defendant's telephone records. The only likely explanation for the call to the contact number was the assistant's attempt to leave a message for the plaintiff to call for an appointment. In light of the corroborative evidence, the cross-examination of the assistant would have accomplished little in regard to the material aspects of her statements to the defendant. Although there was no contemporaneous notation of the call to the contact number, there was also no conflicting evidence from the person who took the message. The assistant had no personal interest in the matters before the court and had no motive to lie to protect the defendant. The statements were admissible to prove the truth of their contents, subject to a determination of weight and reliability in the context of all the evidence in the case.

R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57, 274 D.L.R. (4th) 385, 355 N.R. 267, 220 O.A.C. 338, 215 C.C.C. (3d) 161, 42 C.R. (6th) 1, [page130] 71 W.C.B. (2d) 498; R. v. Mapara, [2005] 1 S.C.R. 358, [2005] S.C.J. No. 23, 2005 SCC 23, 251 D.L.R. (4th) 385, 332 N.R. 244, [2005] 6 W.W.R. 203, 211 B.C.A.C. 1, 40 B.C.L.R. (4th) 203, 195 C.C.C. (3d) 225, 28 C.R. (6th) 1, 65 W.C.B. (2d) 43; R. v. Bradshaw, [2017] 1 S.C.R. 865, [2017] S.C.J. No. 35, 2017 SCC 35, 349 C.C.C. (3d) 429, 38 C.R. (7th) 1, 411 D.L.R. (4th) 491, [2017] 9 W.W.R. 217, 99 B.C.L.R. (5th) 221, 138 W.C.B. (2d) 574, apld

Other cases referred to

R. v. Baldree, [2013] 2 S.C.R. 52, [2013] S.C.J. No. 35, 2013 SCC 35, 306 O.A.C. 1, 298 C.C.C. (3d) 425 3 C.R. (7th) 10, 107 W.C.B. (2d) 679 361 D.L.R. (4th) 389; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 94 D.L.R. (4th) 590, 139 N.R. 323, 55 O.A.C. 321, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133, 17 W.C.B. (2d) 97

RULING to determine the admissibility of hearsay statements.

R. Bogoroch and T. Samson, for plaintiff.

T. Campbell and N. Watson, for defendants.

FREGEAU J.: —

Introduction

[1] During the direct examination of Dr. Chin, the defendant requested that certain statements made to Dr. Chin by his former office assistant, Ms. Ellis, be admitted into evidence for the truth of their contents under the principled exception to the hearsay rule. Ms. Ellis was deceased at the time of trial.

[2] At the conclusion of the voir dire, I ruled that the statements made to Dr. Chin by Ms. Ellis met the requirements of threshold reliability and were admissible for the truth of their contents, subject to the issue of weight and ultimate reliability to be determined in the context of all the evidence at the end of the trial.

[3] My reasons for this ruling are set out below.

Background

[4] Dr. Chin examined Ms. Skead on May 9, 2008 and scheduled her for a follow-up appointment on May 23, 2008. Dr. Chin received Dr. Wiebe's May 25, 2008 referral letter on May 28, 2008. Dr. Chin reviewed Ms. Skead's chart upon receipt of this letter. In doing so, Dr. Chin learned that Ms. Skead's May 23, 2008 appointment had been cancelled. On May 28, 2008, Dr. Chin asked his staff to contact Ms. Skead for an appointment, as had been requested of Dr. Chin by Dr. Weibe.

[5] The information that Ms. Ellis provided to Dr. Chin about her attempts to communicate with Ms. Skead in response to this instruction was the subject matter of the voir dire.

[6] Ms. Ellis worked for Dr. Chin for approximately ten years and had been retired for approximately two years when this [page131] conversation took place. Dr. Chin testified that he discussed this matter with Ms. Ellis after being served with the statement of claim in this action.

[7] Dr. Chin testified that Ms. Ellis told him that she recalled the cancellation of the May 23, 2008 appointment because Ms. Skead told her that the reason for the cancellation was her father's death. Ms. Ellis advised Dr. Chin that she had offered to re-book the appointment for Ms. Skead that day but that Ms. Skead had declined.

[8] Dr. Chin asked Ms. Ellis about the notations on the May 25, 2008 referral letter. Dr. Chin testified as follows:

[Ms. Ellis] said that she was trying to find another number to contact and she contacted the contact number which was given to us in the later part of the day [Donna Reed's number] and she was able to make contact with a Ms. Donna [Reed] whom she said she spoke to and was quite comfortable that she did pass the message onto her, to Ms. [Reed], to ask her to have Ms. Skead contact our office as soon as they can and she said she would, so Ms. [Reed], and so she was comfortable with that, Ms. Ellis.

[9] Dr. Chin testified that he believed what Ms. Ellis told him because "she was a very reliable person and her integrity was quite good, very good and . . . she does recall things very well . . . and there was no reason for me to doubt her".

[10] In cross examination on the voir dire, Dr. Chin testified that the information given to him by Ms. Ellis was in response to questions he asked her after he had received the statement of claim. Dr. Chin did not make any notes during or after his conversation with Ms. Ellis.

The Applicable Legal Principles

[11] In R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57, at paras. 34, 35, 36 and 42, the Supreme Court provided a summary on the "Rule Against Hearsay" and "Hearsay Exceptions: A Principled Approach".

[12] The basic rule of evidence is that all relevant evidence is admissible. One exception is the rule against hearsay: absent an exception, hearsay evidence is not admissible. The difficulty of testing the reliability of hearsay evidence is what underlies the exclusionary rule and, generally, the alleviation of this difficulty that forms the basis of the exceptions to the rule.

[13] The general exclusionary rule against hearsay is a recognition of 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. [page132]

[14] In Khelawon, at para. 35, the Supreme Court noted the essential defining features of hearsay to be: (1) the fact that the statement is adduced to prove the truth of its contents, and (2) the absence of a contemporaneous opportunity to cross examine the declarant. It is only when the evidence is tendered to prove the truth of its contents that the need to test its reliability arises.

[15] It was recognized that a rigid application of the general exclusionary rule would result in the loss of valuable evidence, resulting in the creation of a number of common law exceptions. The rigid application of these exceptions, in turn, led to the needless exclusion of evidence in some cases. This led to the development of the principled approach based on the guiding principles of necessity and reliability. The governing framework was summarized in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, [2005] S.C.J. No. 23, at para. 15:

(a) 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.

(b) 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.

(c) 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.

(d) 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.

[16] Therefore, prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must determine on a voir dire that necessity and reliability have been established: "The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities" (Khelawon, at para. 47).

[17] In Khelawon, at para. 50, the Supreme Court clarified the distinction between threshold and ultimate reliability:

As stated earlier, the trial judge only decides whether hearsay evidence is admissible. Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence. It is important that the trier of fact's domain not be encroached upon at the admissibility stage. [page133] If the trial is before a judge and jury, it is crucial that questions of ultimate reliability be left for the jury in a criminal trial, it is constitutionally imperative. If the judge sits without a jury, it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between "ultimate reliability" and "threshold reliability". Only the latter is inquired into on the admissibility voir dire.

[18] In this case, necessity is not in issue because Ms. Ellis was deceased at the time of trial. Thus, the admissibility of Dr. Chin's evidence as to what Ms. Ellis told him rests on whether threshold reliability is met.

[19] In R. v. Bradshaw, [2017] 1 S.C.R. 865, [2017] S.C.J. No. 35, 2017 SCC 35, the Supreme Court reviewed the current state of the law as to threshold reliability at paras. 26-28, 30-32:

[26] To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it" [Khelawon, at para. 49]. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact. In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them. The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

[27] The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).

[28] Procedural reliability is established when "there are adequate substitutes for testing the evidence" [Khelawon, at para. 63], given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination" [Khelawon, at para. 63]. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement.

[30] A hearsay statement is also admissible if substantive reliability is established, this is, if the statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which is was made and evidence (if any) that corroborates or conflicts with the statement.

[31] While the standard for substantive reliability is high, guarantee "as the word is used in the phrase 'circumstantial guarantee of trustworthiness', does not require that reliability be established with absolute certainty" [R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, at para. 30] [page134]. Rather, the trial judge must be satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process" [Khelawon, at para. 49]. The level of certainty required has been articulated in different ways throughout this court's jurisprudence. Substantive reliability is established when the statement "is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken" [Khelawon, at para. 70]; "under such circumstances that even a sceptical caution would look upon it as trustworthy" [Khelawon, at para. 62]; when the statement is so reliable that it is "unlikely to change under cross-examination" [Khelawon, at para. 72]; when "there is no real concern about whether the statement is true or not because of the circumstances in which it came about" [Khelawon, at para. 62]; when the only likely explanation is that the statement is true.

These two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive and "factors relevant to one can complement the other". That said, the threshold reliability standard always remains high -- the statement must be sufficiently reliable to overcome the specific hearsay dangers it presents.

(Bradshaw, at para. 32; citations omitted)

[20] A trial judge may rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay dangers relate to the declarant's sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration or perception, accuracy will be the issue: Bradshaw,at para. 44.

[21] In Bradshaw, at para. 57, the Supreme Court summarized a trial judge's task in determining whether corroborative evidence is of assistance in the substantive reliability inquiry. A trial judge should:

1. Identify the material aspects of the hearsay statement that are tendered for their truth.

2. Identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case.

3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.

4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining [page135] likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

[22] The four specific concerns that must be identified by a trial judge in assessing threshold reliability were described as follows in R. v. Baldree, [2013] 2 S.C.R. 52, [2013] S.C.J. No. 35, 2013 SCC 35, at para. 32:

First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination.

[Emphasis in original]

The Positions of the Parties

The defendants

[23] The defendants submit that necessity is not in issue due to the death of Ms. Ellis.

[24] The defendants submit that threshold reliability has been established on a balance of probabilities and that Dr. Chin's evidence as to what Ms. Ellis told him should be admitted for the truth of the contents, with weight and reliability to be determined at the end of the day.

[25] The defendants contend that substantive reliability has been established with the assistance of corroborative evidence. The defendants submit that the contemporaneous note made by Ms. Ellis on Dr. Wiebe's May 25, 2008 referral letter establishes that Ms. Ellis called Ms. Skead's telephone number on May 28, 2008 and found it was not in service.

[26] The defendants submit that Ms. Ellis' statement to Dr. Chin that she called the alternate contact number provided to Dr. Chin's office by Ms. Skead at the time of her May 9, 2008 appointment is corroborated by Dr. Chin's telephone records which confirm that a call was placed to Donna Reed's telephone number during the afternoon of May 28, 2008.

[27] The defendants submit that the corroborative evidence supports the truthfulness or accuracy of the material aspects of the disputed evidence and that cross-examination of Ms. Ellis on this issue would add little to the analysis. [page136]

[28] In light of the contemporaneous note made by Ms. Ellis on May 28, 2008 and Dr. Chin's telephone records, the defendants submit that it has been established that the call to Ms. Reed's number was made because Ms. Skead could not be reached at her number. The defendants submit that there was only one reason for Ms. Ellis to have called Ms. Reed's number on May 28, 2008 -- to ask her to give Ms. Skead a message to call Dr. Chin's office for an appointment.

[29] The defendants further submit that Ms. Ellis was retired when she had this conversation with Dr. Chin, had no personal interest in the matter and thus had no motive to fabricate.

[30] The defendants submit that threshold reliability has been established on a balance of probabilities and that the disputed evidence should be admitted.

The plaintiff

[31] The plaintiff submits that threshold reliability has not been established on a balance of probabilities.

[32] The plaintiff submits that when this court assesses the threshold reliability of the disputed evidence, the specific dangers presented by it in this case must be identified.

[33] The plaintiff submits that Ms. Ellis purportedly provided this information from memory approximately two years after the events in question. The plaintiff asks the court to assume that the events of May 28, 2008 occurred in the midst of a busy medical practice in which Ms. Ellis would have made many telephone calls and left many messages for patients on a daily basis. The plaintiff submits that it is possible that Ms. Ellis may have incorrectly recalled the material aspects of the disputed evidence, something which cannot be tested without cross-examination.

[34] The plaintiff also submits that it is possible that Ms. Ellis may have intentionally provided incorrect information to Dr. Chin. The plaintiff contends that Ms. Ellis was Dr. Chin's employee for ten years and was responding to questions posed to her by her former employer because he was being sued. It is not inconceivable that Ms. Ellis may have provided false information to Dr. Chin to help or protect her former employer, according to the plaintiff. The plaintiff submits that this cannot be properly assessed without Ms. Ellis being cross-examined.

[35] The plaintiff also submits that Ms. Ellis did not make any notation of her alleged May 28, 2008 conversation with Ms. Reed. [page137]

[36] The plaintiff submits that threshold reliability has not been established and the disputed evidence should be found to be inadmissible.

Discussion

[37] It is not in dispute that the death of Ms. Ellis meets the necessity requirement. I therefore must address the threshold reliability of the proffered hearsay evidence. The onus rests with the defendants to establish threshold reliability on a balance of probabilities. The defendants submit that substantive reliability has been established on the voir dire.

[38] In determining whether Ms. Ellis' statements to Dr. Chin are substantively reliable (inherently trustworthy) I can consider the circumstances in which the statements were made and evidence that corroborates or conflicts with the statements: Bradshaw at para. 30.

[39] On May 9, 2008, Ms. Skead provided Donna Reed's name and phone number on her medical history form at Dr. Chin's office. Approximately two years after Ms. Ellis retired from Dr. Chin's employ and in response to questions from Dr. Chin after he had been served with the statement of claim in this action, Ms. Ellis advised Dr. Chin that she called Ms. Skead's number on May 28, 2008 to schedule an appointment for her and that Ms. Skead's number was not in service. On May 28, 2008, Ms. Ellis date stamped a handwritten note on Dr. Wiebe's May 25, 2008 referral letter "phone # not in serv.".

[40] Ms. Ellis further advised Dr. Chin that she then called Donna Reed's number and left a message with Donna Reed for Ms. Skead to call Dr. Chin's office for an appointment. Dr. Chin's telephone records confirm a 30-second call was placed from Dr. Chin's office to Donna Reed's phone number at 3:42 p.m. on May 28, 2008.

[41] The plaintiff questions both the accuracy of Ms. Ellis' recall of events occurring approximately two years prior to her recounting them to Dr. Chin and the sincerity or truthfulness of Ms. Ellis in response to Dr. Chin's questions.

[42] The fact of Ms. Ellis' phone call to Ms. Skead's out-of-service number is corroborated by her May 28, 2008 note; the fact of her May 28, 2008 phone call to Donna Reed's phone number is corroborated by Dr. Chin's telephone records both items of physical evidence.

[43] The only likely explanation for the phone call from Dr. Chin's office to Donna Reed's phone number at 3:42 p.m. on May 28, 2008 is that provided by Ms. Ellis to Dr. Chin -- her attempt to communicate with Donna Reed in Ms. Reed's capacity [page138] as Ms. Skead's alternate contact to leave a message for Ms. Skead to call Dr. Chin's office for an appointment.

[44] I accept the submission of the defendants that cross-examination of Ms. Ellis, given the corroborative evidence, would accomplish little if anything in regard to the material aspects of Ms. Ellis' statements to Dr. Chin. While there is no contemporaneous notation of Ms. Ellis' call to Donna Reed, there is also no conflicting evidence from Ms. Reed before the court.

[45] Given that Ms. Ellis' statements about these two telephone calls are corroborated, I am satisfied as to the overall accuracy of her statements to Dr. Chin. Further, Ms. Ellis was retired at the time of her conversation with Dr. Chin. She had no personal interest in the matters before the court and had no motive to lie to protect Dr. Chin.

[46] The defendants have established, on a balance of probabilities, the threshold reliability of Ms. Ellis' statements to Dr. Chin. I rule them to be admissible for the truth of their contents, subject to a determination as to weight and reliability in the context of all the evidence in this case.

Statements admitted under principled exception to hearsay rule.

End of Document