Irina Samborski, associate and Nina Fainman-Adelman, consultant, Gowling WLG (Canada) LLP

Introduction

The recent Ontario Superior Court decision, The Estate of William Robert Waters v Gillian Henry et al, 2024 ONSC 4190 (CanLII) (“Waters”) highlighted the importance of medical evidence in estate litigation. In that case, Justice Callaghan relied on the testator’s medical records—specifically, a prescription for an erectile dysfunction drug and a note reading “got a gf”—to find that the testator had been romantically involved with his wife’s personal support worker. When medical evidence has the potential to steer a court’s decision in this way, it is crucial that litigators are well-versed in the various routes available for admitting medical evidence. In this article, we sections 35 or 52 of the Ontario Evidence Act, RSO 1990, c E23 as well as Rule 53.03 of the Rules of Civil Procedure.

Section 35: The Business Records Exception

While medical evidence oftentimes meets the definition of hearsay and would, therefore, be presumptively inadmissible, the Evidence Act carves out two exceptions: sections 35 and 52.

Section 35 permits a litigant to enter into evidence at trial the fact of an act, transaction, occurrence or event recorded in a business record provided that the record was made in the usual and ordinary course of business and the act, transaction, occurrence or event was contemporaneous with the recording. This exception helps expedite proceedings by avoiding the need to call witnesses to testify about routine business acts, transactions or occurrences. Instead, evidence under this section can be admitted on serving a notice or by calling a records custodian.[1]

Certain medical records may be admitted under this section, such as clinical notes documenting a patient’s blood pressure or heart rate; however, medical records containing opinions, diagnoses, impressions or recommendations cannot be admitted for their truth or validity, only for the proof that they were made.[2] Further, because the record must be made contemporaneously to the events recorded, a patient’s medical history is also excluded from the business records exception.[3] Thus, while the business records exception may be useful for admitting some medical evidence, litigants must be aware of its limitations.

Section 52: The Medical Reports Exception

Section 52, on the other hand, directly relates to medical evidence. This section was enacted to ensure that health practitioners, who provide crucial services to the public, are not pulled from their services simply to introduce their documentary evidence at trial.[4] Under this section, so long as a notice of intention to rely on these documents is served, the court may admit into evidence a medical report signed by a practitioner, without the need to call the practitioner as a witness. Further, unlike under section 35, section 52 expressly allows for medical opinions, diagnoses, impressions or recommendations to be entered for the truth of their contents.

Still, section 52 does not shield a medical practitioner from cross-examination. In fact, once a party has filed a medical report into evidence under section 52, the author of that report becomes the party’s witness and, if not made available for cross-examination upon request, his or her opinion will not be admissible for any purpose.

Rule 53.03: Litigation Experts

As discussed, medical opinions formed as part of a practitioner’s ordinary work and based on their observation of, or participation in, the events at issue may be admitted for its truth under section 52 of the Evidence Act. In contrast, when a medical practitioner is engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding, he or she is now deemed a “litigation expert” and must, therefore, comply with Rule 53.03 of the Rules of Civil Procedure.[5]

For a litigation expert’s evidence to be admissible under this Rule, the party seeking to tender the evidence has the evidentiary and legal burden to satisfy to the court, on a balance of probabilities that: (1) the evidence is relevant to some issue in the case; (2) the evidence is necessary to assist the trier of fact; (3) the evidence does not contravene an exclusionary rule; and (4) the witness is a properly qualified expert.[6] Further, under subrule 53.03(1), a party who intends to call an expert witness at trial must serve on every other party to the action, at least 90 days before the pre-trial conference, a signed expert report. Finally, even where a party has complied with Rule 53.03, an expert witness is nonetheless required to attend at court and give viva voce evidence if called as a litigation expert.[7]

Conclusion

As seen in the recent Waters decision, one note in a medical record has the potential to direct a decision-maker’s finding of facts. At the same time, simply because a record is medical in nature does necessarily mean it will be admitted at trial. Litigants must be aware of the various avenues available for admitting medical evidence and carefully select the appropriate one to ensure compliance with procedure and a clean trial record.

Route of Admission	Applicable To	Limitations	Notice Period
Section 35 of the Evidence Act	Acts, transactions, occurrences or events recorded in business records.	·         Cannot be admitted for the truth of practitioner’s opinions, diagnoses, impressions, or recommendations ·         Record must have been made contemporaneously with the observed event	7 days prior to trial.
Section 52 of the Evidence Act	Medical reports signed by medical practitioners.	·         Opinions, diagnoses, impressions, or recommendations in report are admissible for the truth of their contents ·         Medical practitioner must be made available for cross-examination upon request by an opposing party	10 days prior to trial.
Rule 53.03 of the Rules of Civil Procedure	Litigation experts, defined as those engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding.	·         Litigation experts must produce an expert report, which is to be served on the opposing party.	90 days before the pre-trial conference (to serve the expert report).

 

 

[1] Kirsten Crain and Christine Kucey, I Noticed Your Evidence: A Practical Guide to ss. 35 and 52 of the Evidence Act, 2019 39th Annual Civil Litigation Conference 19, 2019 CanLIIDocs 3851, <https://canlii.ca/t/sqdj>, retrieved on 2024-09-25.

[2] KK v MM, 2021 ONSC 3975 at para 35.

[3] See Ares v Venner, 1970 CanLII 5 (SCC).

[4] See Westerhof v Gee Estate, 2015 ONCA 206, Vo v Voong, 2023 ONSC 622.

[5] Westerhof v Gee Estate, 2015 ONCA 206 at para 6.

[6] R v Mohan, 1994 CanLII 80 (SCC) at p. 20.

[7] Doran v Melhado, 2015 ONSC 2845 at para 39.