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Court of Appeal Discusses Business Records Exception & E-Mails as Evidence

In the appeal decision of McGarry v. Co-Operators Live Insurance Co., 2011 BCCA 214, the Court of Appeal considered the admissibility of various records ruled inadmissible by the summary trial judge by virtue of the application of the rule against hearsay. In doing so, the Court discussed s.42 of the Evidence Act. This section sets out the circumstances by which business records are admissible for the truth or their contents as an exception to the hearsay rule. The Court quoted with approval the earlier Appeal case of RDA Film Distribution Inc. v. British Columbia Trade Development Corp., 2000 BCCA 674 in which the Court remarked on developments in the law of evidence meant to remove barriers to the truth seeking process:

…the Court [Supreme Court of Canada] has advanced towards what it calls a “principled approach” to the hearsay rule and instructed courts to consider necessity and reliability in each particular case, as opposed to applying “ossified rules” of evidence.

The Court in the McGarry appeal then applied the principled approach to various documents originally adduced as evidence in the summary trial but ruled inadmissible. With respect to the issue of reliability, Mr. Justice Hinkson stated:

[67] Indicia of reliability include whether the source of the information, who prepared the document and when it was created is known; and whether there is anything on the face of the document that indicates it was made in the “ordinary course” of business…

[68] As some evidence of reliability must be available for each document before it could be admitted under s. 42, I will consider each of the relevant documents separately.

[69] The amended Sold Schedule of Benefits (Exhibit H) was signed by Mr. Hewitt, as agent for the Employer and dated May 5, 2006. This document contains many indicia of reliability. It is linked to Five Star’s contract as it is entitled “Sold Schedule of Benefits, Five Star Paving Co. Ltd., Benefit Information”. Not only is the source of the information known, but it is also dated and signed by Mr. Hewitt, as agent for the Employer. This further increases its reliability. The date of Mr. Hewitt’s signature on this amendment is May 5, 2006, which is before the plaintiff commenced her action, therefore the concern addressed in s. 42(4) of the Evidence Act is not an issue.

[70] For these reasons, and because it satisfied the business record exception in s. 42 of the Evidence Act, I conclude the summary trial judge erred in law in finding that the Amended Sold Schedule of Benefits was inadmissible as hearsay.

[71] While Mr. Hewitt did not actually sign the Group Benefit Insurance Quote (Exhibit B), the indicia of reliability are still strong. His name is printed at the top as “Advisor” and Five Star Paving Co. Ltd. is listed as the client. It would have been reasonable for Mr. Hewitt to fill out this quote in connection with his negotiations on behalf of Five Star, therefore supporting the inference that it was made in the “ordinary course” of business. The fax date on the top of the sheet is 15 February 2006, indicating the document was filled out during the negotiation stage before the contract was entered into and before the plaintiff filed this action.

[72] For these reasons, I conclude the summary trial judge erred in law, in finding that the group benefit insurance quote prepared by Mr. Hewitt was inadmissible as hearsay as it satisfied the business record exception in s. 42 of the Evidence Act.

E-Mail Evidence:

With respect to the e-mails adduced as evidence at the summary trial, the Court said that some evidence of their authenticity was required for them to be admissible:

[73] The admissibility of electronic documents such as the emails marked as Exhibits C & G is not addressed in the Evidence Act other than in the context of electronic documents recorded or stored by an electronic court system. Nor are emails addressed by the Canada Evidence Act, and so no additional requirements exist in British Columbia to determine reliability of electronic documents. Many other provinces have addressed electronic documents in their provincial evidence statutes, outlining specific concerns regarding authenticity and requiring the party tendering the document to provide evidence of such before the document can be admitted.

[76] Authenticity is a concern addressed by the statutes of other provinces when dealing with electronic records and while there is no statutory requirement in this province to consider authenticity, it is a legitimate concern that should be addressed in determining whether an electronic document is sufficiently reliable to be admitted under s. 42.

[77] In this case there is no evidence in the record which is capable of establishing the authenticity of the emails as that issue was not addressed at the summary trial. Therefore, the issue cannot be resolved on appellate review and the admissibility of the email from BBD to Mr. Hewitt (exhibit C) and the email exchange discussing the COLA provision amendment (exhibit G) cannot be determined.

(written by Charles D. Jago)Personal Injury Law Personal Injury Lawyers

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