Section 35 of the Evidence Act, R.S.O. 1990, c. E.23 (“EA”) is often referred to as the “business records” exception to the rule against hearsay. That is because, under certain circumstances, section 35 of the EA allows business records (which are defined in section 35(1)) to be filed and admissible as evidence where the information in that document might otherwise be traditionally considered as hearsay.

In order to qualify as a business record and be admissible as evidence, the document / record must satisfy a three-part test: (1) the document must be made in the usual and ordinary course of business, (2) the record must be of an act, transaction, occurrence, or event, and (3) the record must be made contemporaneously with the act recorded or within a reasonable time thereafter.[1] If a document does not comply with any of these requirements, it cannot fall under section 35.

In addition, the party tendering the document has to give at least seven days notice of their intention to rely on the document to all of the other parties in the litigation. While this is a statutory requirement under section 35(3) of the EA, it is not fatal to the admissibility of a document if sufficient notice is not given. For example, in Anthony v. Ogunbiyi, 2024 ONSC 7287, the court noted that despite a party’s failure to provide notice under s. 35(3), the court may, in the circumstances of a trial, exercise its discretion to admit the evidence anyway. However, failure to comply with the notice requirement may make it less likely that the document will be admitted under section 35 and will create a hurdle that is easily avoidable. Currently, there is no prescribed form in the EA for providing the mandated notice. The purpose of the notice requirement under s. 35(3) is to avoid surprises at trial and ensure that a party knows the case they need to make in preparing for trial.[2]

The purpose of section 35 is to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable. The section is to afford a more workable rule of evidence in the proof of routine business records, and it is cast in very broad terms so as to encompass practically every type of writing utilized in connection with any business.[3]

Some of the other key principles for admitting documents as business records pursuant to section 35 are as follows:

• The record or writing must be made in the usual and ordinary course of business as opposed to some purely private or personal activity;
• The circumstances surrounding the making of the document affects weight rather than admissibility (section 35(4) of the EA);
• The policy consideration behind s. 35 is to assist in the proof of an event on the assumption that the document which records or refers to the event is trustworthy and, depending on the circumstances surrounding the creation of the document, prima facie proof of the facts recorded therein; and
• The mere fact that a document is in the possession of a party does not cloak the document with proof of the truth of its contents.[4]

Additionally, an important distinction to take note of is that a document that contains an opinion, diagnosis, impression, history, summary, or recommendation cannot be admitted under section 35.[5] For example, if there are nursing notes in a hospital record documenting a patient’s vital signs, those could qualify under section 35. Conversely, medical reports in a hospital chart containing opinions or diagnoses would not qualify. Relying on such medical reports requires the filing of separate notice under section 52 of the EA.

Types of documents that have been admitted under section 35 in the context of estate litigation include law firm dockets, memos by law clerks of client meetings, ledger accounts, timecards, nursing notes of care provided, and meeting minutes.[6]

The business records exception to the hearsay rule is in place to facilitate the search for truth by admitting into evidence hearsay statements that are reliably made or can be adequately tested. However, if a business record nevertheless lacks necessity and reliability, it may be excluded as evidence.[7] Further, even if a writing or record containing hearsay fits within the business record exception, a judge has the discretion to exclude it if its prejudicial effect outweighs its probative value.[8]

The recent case of Hugginson v. Hugginson, 2025 ONSC 1797 provides an example of section 35 in action in the context of estate litigation. In that case, the deceased transferred $400,000 to the respondent during their lifetime. The applicant sought that this money be returned to the estate and submitted that the respondent failed to prove that the deceased intended to gift this amount to the respondent. In support of their position that the transfer was a gift, the respondent attempted to rely on, among other things, notes of the deceased’s investment advisor as evidence. Justice Gibson noted that the evidence from IG Wealth that the respondent was relying on, including a without prejudice letter from IG Wealth summarizing IG Wealth’s position on the gift of the $400,000 and the notes of the investment advisor that did not make any reference to a specific intention of the deceased to make the gift or even reference a specific amount, “must also be given limited weight as hearsay. No one within IG Wealth provided affidavit evidence in support of Sandra’s position.” The respondent then contended that the notes of the deceased’s investment advisor were admissible as business records under section 35 and fall under that exception to the hearsay rule. The applicant disputed this and argued that for a business record to be admissible under section 35 it could not be opinion, diagnosis, impression, history, summary or recommendation. The Court agreed, and stated that “opinions contained in business records or recorded hearsay from third parties who are not under a business duty to report the information are not admissible”.[9]

[1] EA, section 35(2).

[2] Anthony v. Ogunbiyi, 2024 ONSC 7287, at para. 10.

[3] Lumberjacks Tree Service v. 407 East Construction General Partnership, 2024 ONSC 1744, at para. 13.

[4] Rizzuto v. Hamilton Wentworth Catholic District School Board, 2023 ONSC 2101, at para. 14.

[5] R. v. Felderhof, 2005 ONCJ 406, at para. 62.

[6] Setak Computer Services Corp. v Burroughs Business Machines, 1977 CanLII 1184 (ON SC); Starkman Barristers v Cardillo, 2017 ONSC 5530; Verkaik v Verkaik, 2009 CanLII 6843 (ON SC).

[7] R. v. Mapara, [2005] 1 SCR 358, at para. 17.

[8] R. v. Khelawon, [2006] 2 SCR 787, at para. 3.

[9] Hugginson v. Hugginson, 2025 ONSC 1797, at paras. 40 to 42.