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[15] In my view the evidence tendered was admissible under the common law rule and it is not necessary to consider whether it also met the tests of Section 30.
[16] Wigmore defined no less than seven criteria to be satisfied at common law for the admission, as evidence of the truth of its contents, of a document containing hearsay. These were that the hearsay portion must be (1) an original entry, (2) made contemporaneously with that which it recorded, (3) in the routine, (4) of business, (5) by a person since deceased, (6) who was under a duty to do the act and record it and (7) who had no motive to misrepresent it. (Wigmore, 3rd Ed., Vol. 5, Sections 1517 and 1521-35.)
[17] Wigmore advocated change in this rigid position. Dealing specifically with hospital records (3rd Edition, Vol. 6, Section 1707) he urged admission despite the hearsay. He said:
“There is a Circumstantial Guarantee of Trustworthiness for the records are made and relied upon in affairs of life and death. Moreover, amidst the day-to-day details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the Court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.”
[18] In Ares v. Venner (1970) 1970 CanLII 5 (SCC), 14 D.L.R. (3d) 4, the Supreme Court of Canada after a review of the case law, ruled such records admissible. Mr. Justice Hall, for the Court, referred to the decision of the House of Lords in Myers v. D.P.P. [1965] A.C. 1001 where the majority refused to modify the common law leaving that task to Parliament. He adopted what had been the minority view in the House of Lords that the common law, as judge made law, could and should be modified by the Courts. With retroactive effect for the case before the Court he then modified the rules. At page 16 he said:
“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. Had the respondent here wanted to challenge the accuracy of the nurses’ notes, the nurses were present in Court and available to be called as witnesses if the respondent had so wished.”
[19] Subsequent cases have applied these words to records generally: Setak Computer Services Corporation v. Burroughs Business Machines Ltd. (1977) 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750 (Ont. H.C.): R. v. Laverty (1979) 1979 CanLII 3010 (ON CA), 9 C.R. (3d) 288 and 292 (Ont. C.A.).
[20] Even prior to Ares v. Venner, the common law rule as enunciated by Wigmore had undergone some change. Mr. Justice Hall cited with approval two previous decisions of this Court: Omand v. Alberta Milling Co. 1922 CanLII 450 (AB CA), [1922] 3 W.W.R. 412 and Ashdown Hardware Co. Ltd. v. Senger 1951 CanLII 268 (AB CA), [1952] 1 D.L.R. 33. In Omand, a witness was permitted to examine the inspection records for flour prepared as part of a government inspection system by a number of officials and to give evidence of the result. In Ashdown, the Plaintiff’s credit manager produced ledger records to prove that goods had been sold and delivered. At page 35, Ford, J.A. said:
“It is true that there was no direct proof of actual delivery to or receipt by the firm of the goods in question, nor evidence by any clerk or servant of the plaintiff who personally sent out the goods, in fulfilment of any specific order; but, in my opinion proof in this way cannot be reasonably required in present-day business in a large commercial concern where clerks and servants are changed from time to time, whose evidence may be difficult, and often impossible to obtain; and who, even if brought before the Court, would have forgotten most of the particular transactions. Of course, the Court must, as always, having in mind the circumstances, decide what is the best evidence available, and the kind or degree of proof required. This view is, I think, in accord with that outlined fully in Wigmore on Evidence, 3rd ed., vol. V, s. 1530. To emphasize the difficulty of proving each specific item of the account, I point out that we have here an example of goods sold an delivered over a period from April 26, 1948, to November 30, 1949, composed of items covering about 40 pages of the appeal book.”
[21] It is clear in these cases that the witness gave testimony supporting a document about which he had no personal knowledge though the original documents containing the information recorded in the ledgers were undoubtedly prepared by persons with personal knowledge.
[22] An even earlier modification of the common law rules may be seen in a decision in the Supreme Court of Canada in Canadian Atlantic Rwy. Co. v. Moxley (1889) 1888 CanLII 2 (SCC), 15 S.C.R. 145. That case held that the person originally recording the event need not himself have direct personal knowledge of the event recorded. It was held to be sufficient if the person who has a duty to do and record the act “causes” a record to be made by an agent. This case, too, was cited by Mr. Justice Hall in Ares v. Venner.
[23] In his useful book, Documentary Evidence in Canada (Carswell Co., 1984), Mr. J. D. Ewart summarizes the common law rule after the decision in Ares v. Venner as follows at page 54:
“the modern rule can be said to make admissible a record containing (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it (vi) who had a duty to make the record and (vii) who had no motive to misrepresent. Read in this way, the rule after Ares does reflect a more modern, realistic approach for the common law to take towards business duty records.”
[24] To this summary, I would respectfully make one modification. The “original entry” need not have been made personally by a recorder with knowledge of the thing recorded. On the authority of Omand, Ashdown, and Moxley, it is sufficient if the recorder is functioning in the usual and ordinary course of a system in effect for the preparation of business records. In Ashdown, for example, the ledger account, introduced in evidence, was said in the judgment to run for 40 pages. It is unlikely that the same person who sent the goods from a shipping dock and sent a memorandum of that to the business office also made the ledger entry which it was sought to admit. Neither the shipping clerk nor the original ledger keeper was before the Court. In Omand, clearly the original entries had been made by a number of different persons. In Moxley, the person with the duty had “caused” the entry to be made. Modern business records are customarily a compilation of original documents such as sales slips or other memoranda and rarely would that compilation be made by the person who prepared the original document. Yet those records are accepted as valid daily by all those affected by them.
[25] These hearsay records are not to be accepted in evidence merely to avoid the inconvenience of identifying a witness or because many witnesses would be involved, or even because otherwise no evidence would be available. Rather, they can be admitted only if they have come into existence under circumstances which makes them inherently trustworthy. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence.
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