R. v Clarke, 2016 ONSC 575 (CanLII)
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[35] The Supreme Court of Canada in Ares v. Venner sets out the common law criteria that can allow a business record to be admitted as an exception to hearsay. The record must be:
(a) an original entry [or an oral statement];
(b) made contemporaneously [with the thing recorded]
(c) in the routine of business
(d) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it
(e) who had a duty to make the record, and
(f) who had no motive to misrepresent
[Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608 (S.C.C.)]
[36] Hall, J., as he then was, held:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record, should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. …
[Ares v. Venner, at p. 362, my emphasis]
[37] The common law requires neither notice nor an affidavit nor a certificate attesting to the authenticity of the record or attesting that it was made by the person who made the copy. As a general principle, in deciding whether at common law a statement or record can be admitted, the authenticity and the creator of the record must be proven by evidence on the admissibility inquiry.
[38] Ares v. Venner was decided decades before the common use of computers in a business context. The requirement to prove the creator of a record in the modern world of electronic record keeping raises new inquiries when considering computer-generated business records.
[39] A nineteenth century authority recognized a criterion beyond those set down by Ares v. Venner which has been developed and applied in modern times. The Supreme Court of Canada found a person with the duty had “caused” an entry in a record to be made: [Canadian Atlantic Railway Co v. Moxley, 1888 CanLII 2 (SCC), [1889] 15 S.C.R. 145 (S.C.C.)].
[40] One can see the applicability of Moxley to modern business records. These records are frequently compiled from original source data such as sales slips, invoices, purchase orders, or other original data entered by the many often nameless persons routinely tasked to do this in a business context – information that would scarcely have been compiled by the person who prepared the original documents. In daily business practice records compiled in this way are customarily accepted as valid and reliable sources of information by persons affected by the records.
[41] The Alberta Court of Appeal echoed Moxley when considering the admissibility of oral evidence of entries in payroll records. The witness, who was a payroll manager, had extracted portions of a larger payroll record and read them into the record. The Court found the payroll records admissible even though the payroll manager had no personal knowledge of the information and did not produce the original records. The Court found the records to have been made in the ordinary and usual course of business: [R. v. Monkhouse, 1987 ABCA 227, at para. 24, (Alta. C.A.)].
[42] Paciocco and Stuesser commented on the rationale underlying the common law rule on the reliability of business records:
The principle is sound. The reliability of the records is premised on the notion that they are prepared by persons under “business duty”; where a person provides information gratuitously, the record loses its stamp of trustworthiness.
[Paciocco and Stuesser, The Law of Evidence, p. 162]
[43] Paciocco comments further in an article on proof of reliability with computer-generated records:
Although in Ares v. Venner the Supreme Court of Canada held that the recorder had to have personal knowledge, in R. v. Monkhouse the Court accepted a compiled record of employment made by someone without personal knowledge where the person originally recording the employment information would evidently have been under a business duty as well. This is sensible.
[David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age”, (2013) 11 Canadian Journal of Law and Technology, 181, at 214]
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