Court File and Parties

COURT FILE NO.: CV-05-287428-00CP DATE: 2021-03-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FLYING E RANCHE LTD. Plaintiff

AND:

THE ATTORNEY GENERAL OF CANADA on behalf of HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF AGRICULTURE Defendant

BEFORE: Paul B. Schabas J.

COUNSEL: Malcolm Ruby, Duncan Boswell, Rachel McMillan, Andrew Locatelli and Cameron Pallett for the Plaintiff

William Knights, Cynthia Koller, Victor Paolone and Adam Gilani for the Defendant

HEARD: March 12, 2021

Ruling on admissibility of International Public Records

[1] This common issues trial began on February 16, 2021. The case arises from the impact of an outbreak of Bovine Spongiform Encephalopathy (“BSE”), known as “mad cow disease,” on Canadian farmers. The outbreak occurred in Canada in and after 2003. The defendant is the federal government which, it is alleged, was negligent in failing to prevent BSE from entering Canada and infecting Canadian cattle in the 1990s.

[2] In the course of presenting its case the plaintiff sought to enter a set of documents, which it calls “Book Two,” containing 253 separate documents, totalling some 11,500 pages. The vast majority of the documents had been produced by the defendant. The plaintiff asserted several grounds for their admission, including:

(a) the business records exception contained in. s. 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 (“OEA”), and s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”);

(b) the public documents exception contained in s. 25 of the OEA;

(c) evidence of judicial proceedings pursuant to s. 23 of the CEA;

(d) the “documents in possession” exception; and

(e) the principled exception to the hearsay rule based on an assessment of the necessity and reliability of the evidence, taking into account probative value and prejudice (see, e.g., R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 61- 92).

[3] With respect to the statutory exceptions, notice was properly served by the plaintiff in accordance with the legislation.

[4] When initially tendered, I raised concerns about the number and volume of documents, and whether they properly fit within the stated exceptions. In many cases, the plaintiff relied on several grounds for the admissibility of documents, creating uncertainty as to the evidentiary value to be attached to them.

[5] The defendant took no issue with authenticity of the documents, or that they could be entered as an exhibit simply on that basis that the documents produced by the defendant could be accepted as having been in its possession and therefore it had been aware of their contents. However, the defendant objected to the documents being entered for the truth of their contents. Counsel for the defendant emphasized the unfairness if they need to rebut the contents of this vast amount of material, and raised concerns with the admissibility of many documents, both from a relevance and a hearsay standpoint.

[6] I shared the defendant’s concern and noted that it would place me in the difficult position of having a vast amount of material to review and determine on what basis it should be admitted. Following some discussion of these concerns, counsel for the plaintiff agreed to review the documents to provide more specificity as to which documents were being tendered and on what grounds, and agreed to consult with opposing counsel to see if common ground could be reached respecting many of the documents.

[7] Ten days later, counsel reported to me on their progress. The number of documents sought to be entered had been reduced to 191, and the parties had agreed on the basis for the admission of all but eight documents. I set out below what has been entered by agreement, which is important for my subsequent discussion of the final eight documents, and my comments regarding my concerns over being provided with what I described, fairly or unfairly, as a “document dump.”

[8] First, 108 documents were entered as business records or pursuant to the principled exception to the hearsay rule. These include many notes, memoranda, letters, reports, agendas, briefing notes, and minutes of meetings, among other things, all of which were produced by the defendant and appear to be largely, if not entirely, documents prepared by people employed by the defendant. On consent, these documents were entered as exhibits for the truth of their contents.

[9] Second, 12 documents that had been included in materials filed by the defendant in earlier court proceedings involving BSE issues were entered as exhibits on consent pursuant to s. 23 of the CEA, and under the documents in possession doctrine which makes documents admissible to show the party’s knowledge of the contents of a document, and which may be admissible for the truth of the contents if the party has in any way recognized, adopted or acted upon them: see, e.g., Ault v. Canada (Attorney General) (2007, O.R. (3d) 541, 2007 CanLII 55359 (Ont. S.C.) at paras. 11-14, and R. v. Turlon, 1989 CanLII 7206 (Ont. C.A.), at 190. It was agreed that, like the business records, these documents were admissible for the truth of their contents. These documents did not include affidavits or testimony in the prior proceedings, but original records that had been relied on in those cases.

[10] Third, 36 documents described as “scientific articles” were admitted under the documents in possession doctrine, but limited to establishing that the defendant was aware of their contents, and were not admitted for the truth of them.

[11] Fourth, nine documents were entered as exhibits pursuant to the public records exception in s. 25 of the OEA, and as documents in possession of the defendant. These consist of government reports, publications and statements on government websites. The defendant agreed that these documents could be admitted for the truth of their contents.

[12] Fifth, 18 documents, described as “general”, were entered based solely on the documents in possession principle, and only for the fact that the defendant had them and was aware of their contents. These documents include a range of records, such as a Health Canada report on risk determination, a World Health Organization (“WHO”) report on a consultation on BSE-related issues, an overview of BSE risk assessments by the European Commission’s Scientific Steering Committee, and a report of a meeting of the OIE[^1] International Animal Health Code Commission. It was not explained to me why these documents did not fit within the public records or business records exceptions, and would then be admissible for the truth of their contents; perhaps they were not made public, and at least one appears to have been a draft or “subject to editorial changes.”

[13] This leaves the eight documents still in dispute, which were described as foreign public records. As noted, the plaintiff seeks to have them entered for the truth of their contents, while the defendant submits only that they be entered as documents in the possession of the government and that the government was aware of their contents. I marked the documents as an exhibit on the more limited basis consented to by the defendant and reserved on the plaintiff’s request to have them entered for the truth of their contents.

[14] The eight records fall into three categories.

[15] The first two documents are WHO publications – the first one being a published memorandum based on a consultation meeting of international experts held in Geneva in November 1991. It states that it “reviews the existing state of knowledge” on BSE which had only been identified as a disease in 1986. The second document is a WHO press release from April 1996 summarizing proposed measures to limit the spread of BSE arising from a consultation of international experts that month.

[16] Four of the documents are reports or “opinions” of the Scientific Steering Committee of the European Commission dealing with various aspects of BSE, including methodologies for risk assessment, the origin and transmission of BSE, and exposure of humans to BSE.

[17] The final two documents are reports of the European Food Safety Authority (“EFSA”) prepared in 2004 on the risk of BSE in Canada and the United States.

[18] Section 25 of the OEA states:

Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be printed by or under the authority of the Parliament of the United Kingdom, or the Imperial Government or by or under the authority of the government or of any legislative body of any dominion, commonwealth, state, province, colony, territory or possession within the Queen's dominions, shall be admitted in evidence to prove the contents thereof.

[19] The rationale for the public documents exception to the hearsay rule was addressed by Laskin J.A. in R. v. A.P., 1996 CanLII 871 (Ont. C.A.), who stated at para. 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), 1953 CanLII 81 (SCC), 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.

[20] Although these documents are not Canadian public records, courts have recognized that documents of foreign governments or public bodies can be entered pursuant to the public records exception contained in s. 25 of the OEA. In Finestone, quoted above by Laskin J.A., Rand J. went on to state at p. 109 that the grounds for admission “have equal force in the case of an entry made pursuant to a duty under a foreign as well as a domestic law.”

[21] A very recent example of the public records exception may be found in A.P. v. L.K., 2021 ONSC 150, which held that an arbitrator had erred in failing to admit two documents for the truth of their contents. Both documents were public, government publications addressing immunization issues and providing recommendations and guidance. In concluding that public records must not be subject to rigid restrictions, Akbarali J. took a principled approach based on the inherent reliability of such documents, as noted by Rand J. almost 70 years ago. She also observed that a British Columbia court had recently admitted United Nations and World Health Organization publications as public records: D.R.B v. D.A.T., 2019 BCPC 334, at paras. 30-31.

[22] In this case, all eight documents appear to meet the criteria for admission as public records. The European Commission, is, of course, a government entity, of which EFSA is a part. The WHO is also a well-recognized international intergovernmental entity on which countries rely for information and guidance. I am satisfied that the records are made by officials in the discharge of their duties or functions in these organizations, and the documents were intended to serve as a permanent record and are available to the public. Accordingly, they will be admitted for the truth of their contents.

[23] Having said this, I express some reservations.

[24] This case contains a great many documents already. As part of the plaintiff’s read-ins, or admissions from its pre-trial discovery of the defendant, the plaintiff filed what it calls Book One, containing 588 documents totalling over 8000 pages, which contains documents referenced in the discoveries or answers to undertakings provided by the defendant. Book One was marked as an exhibit and many of the documents in it, though not all, were referred to in the read-ins, which took several days at the outset of the trial.

[25] From the read-ins and the evidence I have heard so far in this case, there are many documents in Book One that are similar to those contained in Book Two. I have already seen many foreign documents from, for example, the United Kingdom, Australia, the Scientific Steering Committee of the European Commission, and the OIE, regarding the emergence and prevalence of BSE, the developing state of knowledge of BSE during the relevant period from approximately 1990 to 2003, and recommended and actual responses to it. I have also been taken to scientific articles and minutes of meetings of the OIE which are in Book One. There are also a number of documents in Book Two which have been admitted on consent which are similar to the eight contested documents, although some have only been admitted as having been in the defendant’s possession, but not for the truth of their contents.

[26] An example of this is the scientific papers admitted only for the fact that the defendant had them and was aware of them. Yet some of these papers may discuss the state of knowledge of BSE at a given point in time, and cover much of the same ground as may be discussed in the WHO and Scientific Steering Committee documents which I have now admitted for the truth of their contents.

[27] This highlights the concern over the vast number of documents being filed in this trial and how to decide the weight to be given to them – especially as I have many similar documents admitted on different bases, some of which may be addressed by witnesses, while others will not, and there will likely be large amounts of documentary material that will not be addressed by anyone, but will be part of the evidence before me.

[28] By my count, Book One and Book Two contain approximately 20,000 pages of material, although that is probably slightly overstated now that Book Two has been reduced from 253 to 191 documents. Over 40 other exhibits have also been filed. And we have only just concluded the plaintiff’s case. I have also been advised that the defendant will have records and documents of its own that it will seek to enter through OEA notices as exceptions to the hearsay rule. So there is more to come.

[29] Consequently, while I appreciate that both sides wish to ensure I have as much evidence as necessary, the fact that hundreds of documents spanning thousands of pages may be admitted, technically, for the truth of their contents, does not mean they will all be given equal or, necessarily, any weight. In this regard, as to what the defendant knew and how it acted, or failed to act, upon information it had at certain points in time is a critical issue in this case, whether the eight contested documents go in for their truth, or simply as documents of which the defendant had knowledge, may be a distinction without a difference.

[30] All of which is to say that in admitting the eight international documents for the truth of their contents, and accepting the additional 183 other documents in Book Two admitted on differing bases on consent, the issue of the weight and importance to be given to any of them remains open, and may be assisted by evidence and submissions going forward.

Paul B. Schabas J.

Date: March 17, 2021

[^1]: Office International des Epizooties (“OIE”), currently known as the World Organization for Animal Health, which is an international intergovernmental organization responsible for promoting animal health.