Usually a couple months before trial, you’ll start to hear lawyers talk about what they can keep out or what they need to get in. Now, what these lawyers are talking about is the admissibility of documents or testimony and entering those into evidence. This article will attempt to elucidate the concept of admissibility in terms of documents at trial. It will then go on to recap the court’s recent decision in Oswald v Start Up SRL, 2020 BCSC 205, which provides a useful review of the law relating to the authentication of documents and the business records exception to hearsay evidence.
Generally, the plaintiff in a civil action carries the evidentiary burden meaning that they must assemble and put into evidence various documents and testimony to make out the facts that found their claim. Evidentiary burden is also sometimes referred to as the basic building blocks of a claim or the essentially components. Unless an affirmative defence is being mounted, the defendant will generally try to keep documents out of evidence that build the plaintiff’s claim. In order to properly evaluate the viability of claims within an action, lawyers are required to evaluate each document in two ways.
First, lawyers must analyze a document’s evidentiary value: can this document be admitted into evidence? If so, what weight might it be given? These questions seem simple but involve considering a myriad of factors including: who authored a document; why it was authored; what information is the document based on; how was the document obtained; and, is it authentic. If a document cannot be entered into evidence, its contents are likely irrelevant to the resolution of the action. Second, lawyers must evaluate the substantive information provided within the document – this analysis is case dependant. Although I’ve articulated these as two distinct considerations, they generally occur simultaneously and are interwoven.
After evaluating potential evidence in the first manner, lawyers should be able to anticipate who they will need to call at trial to have a particular document entered into evidence or whether it can be entered by statute. This also allows lawyers to evaluate if further corroborating evidence or expert evidence will be required to satisfy a party’s evidentiary burden. Expert evidence will be required where to discharge an evidentiary burden the court must be furnished with scientific, technical or specialized knowledge. For example, medical doctors are commonly called upon to provide expert evidence in relations to plaintiffs’ injuries and prognoses in personal injury actions.
In the recent decision of Oswald v Start Up SRL, 2020 BCSC 205 (Oswald), the first consideration, the admissibility of a number of documents, as well as, the testimony of the defendant’s star witness came under attack.
As background, the main claim within Oswald was for specific performance of a Memorandum of Understanding (MOU) between the plaintiff and the defendant by counterclaim. A main defence to the claim was that there was a fraudulent or negligent misrepresentation of the financial performance of a corporation named Hero India. The defendant plead that the misrepresentations inflated the value of shares and that the MOU was therefore void. The misrepresentation were also alleged to have resulted in the defendant paying too high of a share price. Thus, the defendant was seeking damages for the difference between what it actually paid and what it should have paid. At issue in this voire dire (hearing at trial) was the admissibility of documents and testimony tendered to calculate those damages.
Now, the defence of fraudulent or negligent misrepresentation is an affirmative defence. This means that the defendant carries the evidentiary burden and is required to enter evidence to support the defence. In the case of Oswald v Start Up SRL, the defendant would clearly need to enter, in terms of damages, evidence regarding: 1) the representation and price paid; and, 2) the actual value of the shares. Predictably, establishing the actual value of share will require financial information from the corporation to be entered into evidence and opinion evidence regarding the calculation of share prices. I have quickly made the leap to opinion evidence because calculating share values is outside the expertise of a judge or jury. Further, there are multiple ways to calculate the value of shares.
As expected, the plaintiff objected to the defendant entering various financial statements on the basis that: 1) the authenticity of the documents had not been established; and, 2) the documents were hearsay and did not fall within a recognized exception to the hearsay rule. The defendant argued that the documents were admissible as business records or as an exception to hearsay.
Justice Giaschi began his analysis by providing a thorough review of jurisprudence regarding authenticity and the business records exception to hearsay:
 The need to authenticate documents was addressed in Slough Estates Canada Ltd. v. Federal Pioneer Ltd.,  O.R. (3d) 429 (O.C.).
57 It is a fundamental prerequisite to the admissibility of any document that the document be authenticated by the party tendering it in evidence. A document does not become evidence merely upon production; some testimony or other evidence must be adduced to authenticate it: Scougall v. Stapleton (1986), 12 O.R. 206 at pp. 209-10 (C.A.); Ewart, Documentary Evidence in Canada (1984) at p. 33; Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992) at pp. 46, 950-52; Schiff, Evidence in the Litigation Process, 4th ed. (1993), vol. 2 at pp. 1068-71.
58 A document may be authenticated by admissible evidence sufficient to establish that the document is genuine, such as identification of the document by its author or someone who observed the author create or sign the document. A mere purported signature or statement of authorship on the document’s face is insufficient, as both are inadmissible hearsay: Thompson v. Thompson (1902), 4 O.L.R. 442 at pp. 446-47 (C.A.); Russell v. Fraser (1865), 15 U.C.C.P. 375 (C.A.); Schiff, Evidence in the Litigation Process, supra, at pp. 1070-71.
59 There is a reason for this. Documents are disclosed by litigants because they are in their possession and appear on their face to be relevant. However, without some independent evidence of their authenticity — they may have been surreptitiously put into files or been improperly filed — the fact that they are shown in an affidavit on production by the opposite party does not make them admissible as evidence.
 The Court of Appeal in British Columbia (Securities Commission) v. Alexander, 2013 BCCA 111, noted that authentication requires proof the document is what it purports to be. This is normally done by testimony from the maker of the document but threshold authenticity can also be established by circumstantial evidence.
 Under the rules of evidence, documents (real evidence) must be authenticated, that is the documents must be proved to be what they purport to be before they may be admitted into evidence. To establish threshold authenticity, the author or creator of a document is typically called as a witness to attest that he or she made the document and what the document was intended to be. Threshold authenticity, however, may also be established by circumstantial evidence: David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2012) at 96.
 The Ontario Court of Appeal in R. v. C.B., 2019 ONCA 380, also recently stated that authentication requires some evidence the documents sought to be admitted are what they purport to be but the Court noted that the threshold is a low one:
 Authentication is the process of convincing a court that a thing matches the claim made about it. In other words, it is what its proponent claims it to be. Authentication is intertwined with relevance: in the absence of authentication, the thing lacks relevance unless it is tendered as bogus. Thus, authentication becomes necessary where the item is tendered as real or documentary evidence.
 At common law, authentication requires the introduction of some evidence that the item is what it purports to be: R. v. Donald (1958), 1958 CanLII 470 (NB CA), 121 C.C.C. 304 (N.B. C.A., at p. 306; R. v. Staniforth (1979), 11 C.R. (3d) 84 (Ont. C.A.), at p. 89; R. v. Hirsch, 2017 SKCA 14, 353 C.C.C. (3d) 230, at para. 18. The requirement is not onerous and may be established by either or both direct and circumstantial evidence.
See also: R. v. Wilder, 2002 BCSC 1333 at para. 288; Animal Welfare International Inc. v. W3 International Media Ltd., 2013 BCSC 2193 at para. 61.
 The business records exception to the hearsay rule is a common law rule and is also set out in s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124. The Evidence Act provision:
42 (1) In this section:
“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise;
“document” includes any device by means of which information is recorded or stored;
“statement” includes any representation of fact, whether made in words or otherwise.
(2) In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if
(a) the document was made or kept in the usual and ordinary course of business, and
(b) it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time after that.
(3) Subject to subsection (4), the circumstances of the making of the statement, including lack of personal knowledge by the person who made the statement, may be shown to affect the statement’s weight but not its admissibility.
(4) Nothing in this section makes admissible as evidence a statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to a fact that the statement might tend to establish.
(5) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible by this section must not be treated as corroboration of evidence given by the maker of the statement.
 For a document to be admitted into evidence under the business records exception of the Evidence Act, the party tendering the document must prove all of the elements in s. 42, namely, that the document was:
- a) made contemporaneously;
- b) by someone having a personal knowledge of the matters being recorded;
- c) by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business; and
- d) that the matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business.
Cambie Surgeries Corporation v. British Columbia (Attorney General), 2018 BCSC 859, at para. 16.
- a) Pursuant to s. 42(3), lack of personal knowledge by the maker of the statement does not affect the document’s admissibility but may affect the weight to be given to the document; and
- b) Pursuant to s. 42(4), a statement made by an interested person when proceedings were pending or anticipated is not admissible.
 The common law exception for business records is similar to the Evidence Act exception, but not identical. The elements to be proven under the common law exception are set out in The Owners et al v. Homer Street et al v. O’Neill Hotels et al, 2007 BCSC 1265, at para. 18:
 Alternatively to s. 42 of the Evidence Act, plaintiffs’ counsel submits that the common law exception to the hearsay rule, as explained in Ares v. Venner, 1970 CanLII 5 (SCC),  S.C.R. 608, applies and the memoranda should be admitted as prima facie proof of what statements and determinations were made at the meetings, under that common law exception. The elements of the exception appear to be:
- a) the record must contain an original entry;
- b) the maker of the record must have been under a duty to record the particular act;
- c) the record must have been prepared in the regular course of the business;
- d) the record must be made contemporaneously or within a reasonable time after the occurrence of the acts to which it relates; and
- e) the maker of the record must have personal knowledge of the matters being recorded.
 An apparent distinction between the common law exception to the hearsay rule for business records and s. 42 of the Evidence Act, concerns the personal knowledge of the maker of the record. The common law exception appears to strictly require that the maker have personal knowledge whereas under the Evidence Act, pursuant to s. 42(3), such lack of knowledge merely goes to weight. However, even under the common law exception lack of personal knowledge is not fatal to the admission of the record. In Animal Welfare International Inc. v. W3 International Media Ltd., 2013 BCSC 2193, business records were admitted where the maker of the record did not have personal knowledge.
 Double hearsay is likewise not a barrier to admissibility at common law. The court in Monkhouse, at 104, held that clerks preparing records based on information supplied to them by others need not have personal knowledge of that information, finding it “sufficient if the recorder is functioning in the usual and ordinary course of a system in effect for the preparation of business records.”
 Although the elements of the business records exception are often proved by the maker of a record, this is not always necessary. In Mohamed v. Intransit BC Limited Partnership, 2015 BCSC 1300, control room log entries were admitted as business records notwithstanding that the author of the entries was not identified and did not give testimony. (see also: Lederman et.al., The Law of Evidence in Canada, (5th ed.), at para. 6.209).
 Examples of the categories of documents that are admitted under the business records exception are set out in para. 41 of Setak Computer Services Corp. v. Burroughs Business Machines Ltd., (1977) 76 DLR (3d) 741, as including: “ledger accounts, time-cards, pay-roll records, and other routine commercial records”. Other examples include: ledger cards recording amounts received from debtors: Iaci v. DiSalvo, 2012 BCCA 474; ledgers describing order and payment information: Fill-More Seeds Inc. v. Victoria Seeds Inc., 2009 BCSC 1732; and bank deposit slips: Samra v. Guru Nanak Gurdwara Society, 2008 BCCA 202.
Justice Giaschi went on to find that most of the financial documentation was admissible with the exception of a few documents that had yet to be authenticated.
Although this article provides an overview regarding two unique aspects of entering documents into evidence at trial, there a multitude of other ways to have evidence entered and facts made out. When commencing or defending a civil action, I would recommend contacting myself or one of our other lawyers to ensure your case is prosecuted or defended to its fullest extent.
If you have any questions about injury claims, you can contact George at Tel: 604.932.3211, email firstname.lastname@example.org
Race & Company, your Whistler & Squamish Law Firm
Ps. Justice Giaschi provides a great review of the admissibility of expert and lay opinion evidence in Oswald at paragraphs 60 through 75. The full case can be found here: Oswald v Start Up SRL, 2020 BCSC 205 (CanLII), <http://canlii.ca/t/j59g9>, retrieved on 2020-02-23