Court File and Parties

COURT FILE NO.: CV-11-437362

DATE: 20210426

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2287913 ONTARIO INC., TREBAR HOLDING INC., 2234406 ONTARIO INC. and ARCTIC SPAS OAKVILLE INC.

Plaintiffs/ Defendants by Counterclaim

AND:

ERSP INTERNATIONAL ENTERPRISES LTD., BREAK THROUGH ENTERPRISES LTD., KELLNER CONSULTING LTD., LIQUID LOGIC LTD., ECHO SOLUTIONS INCORPORATED, PARADISE BAY SPA & TUB WAREHOUSE INC., SPA LOGIC INC., BLUE FALLS MANUFACTURING LTD., ARCTIC SPAS INC., JOHN KIERSTEAD, DARCY AMENDT, DENNIS KELLNER and BRENT MACKLIN

Defendants/ Plaintiffs by Counterclaim

BEFORE: A.A. SANFILIPPO J.

COUNSEL: Joseph Figliomeni, for the Plaintiffs/ Defendants by Counterclaim

Leslie Dizgun and Allyson M. Fischer, lawyers for the Defendants/ Plaintiffs by Counterclaim

RULING ISSUED: April 20, 2021

RULING – PUBLIC DOCUMENTS EXCEPTION

DELIVERED ORALLY:

[1] On April 8, 2021, the ninth day of this trial, during the course of the Plaintiffs’ cross-examination of Mr. D’Arcy Amendt, one of the Defendants in this action, I ruled, contrary to the objection of the Defendants, that a document tendered by the Plaintiffs could be admitted into evidence and marked as an exhibit in accordance with the public documents exception. I stated that the reasons for this ruling would follow. These are those Reasons.

[2] The Plaintiffs’ counsel cross-examined Mr. Amendt on a document entitled “Blue Falls Manufacturing: Turning Market Knowledge into a Competitive Edge, November 2006”. This document was published by the Small Business Policy Branch of Industry Canada, designated Cat. No. lu188-33/2006E-PDF, ISBN 0-662-44565-1. I will refer to this as the “Industry Canada Document”.

[3] In the Industry Canada Document, the author wrote of the emergence of Blue Falls Manufacturing as a growing Canadian small business, and quoted from statements attributed to Mr. Amendt and said to have been obtained from an interview conducted on March 17, 2006, according to the References listed in the document. Additionally, the Industry Canada Document quoted statements attributed to the defendant James Keirstead in interviews said to have been conducted on March 18 and 22, 2006, and also quoted statements attributed to the defendant Dennis Kellner in an interview said to have been conducted on March 8, 2006, again according to the References listed in the Industry Canada Document.

[4] After cross-examining Mr. Amendt on the statements attributed to him in the Industry Canada Document, the Plaintiffs asked that it be admitted into evidence and marked as an exhibit without further proof on the basis of the public documents exception. The Defendants objected on the basis that the Industry Canada Document did not satisfy the statutory and common law requirements set out for the public documents exception. I denied this objection and marked the Industry Canada Document as Exhibit 104. I will explain why.

[5] Section 25 of the Evidence Act, R.S.O. 1990, c. E.23, provides as follows:

Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be published by or under the authority of the Parliament of the United Kingdom, or of 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.

[6] In Levac v. James, 2016 ONSC 7727, at paras. 112-113, rev’d on other grounds, 2017 ONCA 842, the court described the rationale behind the public documents exception to the hearsay rule as follows:

Under the public documents exception, the records and reports of public officials are admissible for the truth of their contents because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove the records and reports: R. v. P.(A.), 1996 CanLII 871 (ON CA), [1996] O.J. No. 2986 (C.A.). In R. v. P. (A.), supra, Justice Laskin 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, 2nd ed. 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 convenience 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.”

[7] In Levac, at para. 114, the court, relying on Laskin J.A.’s decision in R. v. P.(A.), at para. 15, held that for a document to be admissible under the public documents exception to the hearsay rule, four criteria must be satisfied:

(1) the document must have been made by a public official, that is a person on whom a duty had been imposed by the public; (2) the public official must have made the document in the discharge of a public duty or function; (3) the document must have been made with the intention that it serve as a permanent record; and (4) the document must be available for public inspection.

[8] Here, the Industry Canada Document satisfies all four of these criteria:

(a) The document was prepared by Industry Canada, a department of the Federal Government.

(b) The public official who prepared the document did so as part of the discharge of a public duty with Industry Canada in regard to analysis and presentation of an emerging small business in Canada in a developing industrial sector.

(c) The document was prepared with the intention that it be saved as a public document, as is evident from its indexing and availability as a resource on Industry Canada’s website.

(d) The document is available for public inspection, in either hard copy or electronically.

[9] At the core of the Defendants’ objection is the submission that the Industry Canada Document does not fall within the description of documents set out in s. 25 of the Evidence Act or categories of admissible documents as set out in the case law pertinent to this exception. The Defendants submitted that the Industry Canada Document is not a “statute, official gazette, ordinance, regulation, proclamation, journal, order, appointment to office, or notices thereof”. This submission is based also on the finding in Levac, at para. 117, where the Court identified three basic categories of public documents: (i) entries made in public registers or file by public officials, (ii) the results of official investigations or inquiries carried out by public officials, and (iii) certificates prepared by public officials.

[10] The Plaintiffs do not contend that the Industry Canada Document falls within one of these descriptions or categories, but submitted that it is an “other public document” as provided for by s. 25, and falls within the public document exception as it satisfies the four part test for admissibility.

[11] I agree with and adopt the finding by Akbarali J. in A.P. v. L.K., 2021 ONSC 150, at paras. 152-153, that the categories of public documents is not rigid. Rather, the case law has identified four criteria to apply to recognize a document that can be admitted for proof of the truth of its contents, because it is sufficiently reliable under the public documents exception. The focus is on the reliability of the document, not whether it fits rigidly into a category. In A.P. v. L.K., Akbarali J. admitted into evidence government publications addressing immunization issues and providing recommendations and guidance without requiring public officials to attend to prove the documents, on the basis that the four criteria for their admission were established. Justice Akbarali 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.

[12] Recently, in Flying E Ranche Ltd. v. Attorney General of Canada, 2021 ONSC 2011, at paras. 17-21, Schabas J. applied an identical approach in admitting into evidence, without the requirement of testimony from the author, two reports prepared by the European Food Safety Authority.

[13] In conclusion, I have determined that the Industry Canada Document satisfied the four criteria set out by Laskin J.A. in R. v. P.(A.), at para. 15. The Industry Canada Document is thereby inherently reliable, in accordance with the case law requirements and in compliance with s. 25 of the Ontario Evidence Act. For these Reasons, the Industry Canada Document was admitted into evidence without further proof and marked as Exhibit 104.

A.A. Sanfilippo J.

Date: April 26, 2021