Business Records Under Common Law

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General Principles

See also: Business Records and Business Records Under the Canada Evidence Act

Business documents are admissible without notice under the common law where they meet the following requirements:[1]

  1. it is an original entry;
  2. it was made at the time of the event;
  3. it was made in the routine of business;
  4. it was made by a person who has personal knowledge of the thing recorded;
  5. who had a duty to make the record; and
  6. the maker had no motive to misrepresent

Stated in another way:[2]

Statements made by an unavailable Declarant under a duty to another person to do an act and record it in the ordinary practice of the defendant’s business or calling or admissible in evidence provided they were made contemporaneous with the facts stated and without motive or intent to misrepresent the facts. Each component must be satisfied.

The fundamental rationale behind this rule that permits records being tendered into evidence without calling the author is not to avoid the inconvenience of bringing in the witnesses or because of no reasonable alternative. Rather it is premised on the documents having been created "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." [3]

The reliability arises from the existence of a "business duty". By contrast a person who "provides information gratuitously" should be treated as less trustworthy.[4]

Evidence surrounding the making of the record goes to weight and not admissibility of the record.[5]

  1. R v Monkhouse 1987 ABCA 227 (CanLII), [1988] 1 W.W.R. 725 at para 23 to 25
    Ares v Venner, [1970] SCR 608, 1970 CanLII 5
    R v O'Neil, 2012 ABCA 162 (CanLII)
    R v Oster, 2013 ONCJ 38 (CanLII) at para 30
  2. R v Oster, 2013 ONCJ 38 (CanLII) at para 30
    citing Palter Cap Co v Great West Life [1936], and Conley v Conley, [1968] 2 OR 677, 1968 CanLII 236 (ON CA)
  3. R v Monkhouse, 1987 ABCA 227 (CanLII) at p. 350 to 351
  4. R v Clarke, 2016 ONSC 575 (CanLII)
  5. R v Zundel [1987], 1987 CanLII 121 (ON CA), 31 CCC 3d 97 (Ont.C.A.)