Justice Lauwers is an appellate judge on a mission. And, based on his most recent “reflections on trial practice” in Bruno v. Dacosta,[1] the end state appears to be something of a civil trial manual for lawyers and judges concerning the preparation of a complete and accurate trial record. The purpose? So he and his colleagues on the Court of Appeal can better fulfill their function as an appellate court.
Earlier this year in Girao v. Cunningham,[2] building on his earlier decisions in Iannarella v. Corbett,[3] and 1162740 Ontario Limited v. Pingue,[4] Justice Lauwers provided important guidance to trial judges and counsel on considerations relating to self-represented litigants, the admission of expert evidence and the Evidence Act,[5] and the preparation and use of joint document briefs at trial.
In Bruno v. Dacosta, Lauwers J.A. reiterated his comments in Girao regarding the “elements of acceptable trial practice” concerning the admission and use of joint document briefs.[6] Expanding on the recommendation in Girao that counsel include a written agreement regarding its use in the document brief itself, Lauwers J.A. noted: “As a matter of ordinary trial practice, the parties’ agreement should be entered with the joint book of documents at the earliest opportunity.”[7]
He emphasized that “any agreement between counsel as to the admissibility of documents is not automatically binding on the trial judge, who remains at all times the gatekeeper of the evidence.”[8] Specifically, certain issues relating to the admissibility of certain forms of double hearsay in business records introduced pursuant to s. 35 of the Evidence Act will require “argument and an evidentiary ruling”, notwithstanding an agreement of the parties.[9] Further, concerning the Evidence Act, Lauwers J.A. commented that it is “unacceptable trial practice” to include broad, sweeping references in s. 35 Evidence Act notices, such as “All other business and medical records listed in the parties’ affidavits of documents and produced subsequently in this proceeding in response to undertaking or production requests”.[10]
Bruno strongly condemned, as “legal heresy” the “deplorable tendency in civil cases of admitting evidence subject only to the weight to be afforded by the trial judge: ‘Seduced by this trend towards [evidentiary] flexibility, some judges in various jurisdictions have been tempted to rule all relevant evidence as admissible, subject to their later assessment of weight’”.[11]
These admonitions appear to be directed primarily at trial judges. However, trial and appellate counsel would be well-advised to carefully study and apply the guidance set out by Lauwers J.A. in Bruno, Girao, Pingue, and Iannarella concerning the complete and accurate construction of the trial record for appellate purposes. Interestingly in that regard, Lauwers J.A. also noted that it would be “good trial practice to include any written arguments in the trial record as lettered exhibits to which the appeal court can have access, if necessary.”[12] Something not to lose sight of at the end of a hard-fought trial in order to best position one’s client on appeal.
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[1] Bruno v. Dacosta, 2020 ONCA 602 at para. 54.
[2] Girao v. Cunningham, 2020 ONCA 260.
[3] Iannarella v. Corbett, 2015 ONCA 110.
[4] 1162740 Ontario Limited v. Pingue, 2017 ONCA 52; see also Brown J.A.’s decision in Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165.
[5] Evidence Act, R.S.O. 1990, c. E.23.
[6] Bruno at para. 53.
[7] Bruno at para. 63.
[8] Bruno at para. 55.
[9] Bruno at para. 61.
[10] Bruno at para. 63.
[11] Bruno at para. 65.
[12] Bruno at para. 66.
