Under common law business records rule documents to be made contemporaneously by someone with personal knowledge and under duty to make entry

M was sexually abused by priest, now deceased, when he was 11-year-old altar boy. M never confided in anyone which ultimately led to difficulties with his familial relationships and alcoholism. M commenced action against Diocese for damages. Trial judge ruled that chart from hospital where M was treated for alcoholism was not admissible since M's history was not recorded by someone with personal knowledge of matters and chart therefore constituted inadmissible hearsay. Trial judge also excluded academic records which included comments and observations about positive academic results after abuse finding they were inadmissible opinion evidence. M was awarded general and aggravated damages of $250,000, $280,000 for loss of income and punitive damages in amount of $15,000. Diocese appealed. Appeal allowed in part. General and aggravated damages award of $250,000 and loss of income award of $280,000 were upheld however punitive damages award of $15,000 was overturned. Trial judge properly excluded evidence in hospital chart and academic records. To be admissible under common law business records rule, documents had to be made contemporaneously by someone with personal knowledge of matters being recorded and under duty to make entry. Chart did not fall within personal knowledge of author and M’s academic record was properly characterized as opinion evidence. In any event, there was other evidence of M's condition while at hospital and his academic grades so there was no potential for miscarriage of justice.

McCabe v. Roman Catholic Episcopal Corporation for the Diocese of Toronto, in Canada (2019), 2019 CarswellOnt 3886, 2019 ONCA 213, G.R. Strathy C.J.O., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.).