In Vointsev v. Irina International Tours Limited, Justice Julie Alexandra Thorburn had to deal with an interesting practice point.
The plaintiff had claimed damages resulting from having fallen while on a tour of Toronto with the defendant, Irina International Tours Limited. The defendant had been noted in default.
At trial, counsel for the plaintiff sought to introduce into evidence various hospital records, medical reports, clinical notes and records and an ambulance call report. A number of the records emanated from Russia, where the plaintiff had been treated following the injury.
(Justice Thorburn held that a report from a Russian doctor was not admissible in any event, as s. 52 of the Evidence Act only applies to reports of doctors licensed or registered to practise in Canada.)
No notice under ss. 35 or 52 of the Evidence Act had been served on the defendant and the central issue in the decision was whether notice has to be served on a defendant who has been noted in default.
Counsel for the plaintiff took the position that subrule 19.02 of the Rules of Civil Procedure made it unnecessary for him to serve notice. That provision reads:
(3) Despite any other rule, a defendant who has been noted in default is not entitled to notice of any step in the action and need not be served with any document in the action, except where the court orders otherwise or where a party requires the personal attendance of the defendant…
Justice Thorburn held that subrule 19.02 was contradictory of ss. 35 and 52 of the Evidence Act, which require that notice of intention to file medical reports (s. 52) or business records (s. 35) be given to the opposing party. As a result, she refused to allow the documents into evidence:
Because Rule 19 conflicts with the requirement in the Evidence Act to serve a Notice of Intention to rely on the documents in question, I have no choice but to deny the Plaintiff’s request to admit these documents as evidence at trial because the mandatory provisions in the Evidence Act prevail over the provisions in Rule 19 of the Rules of Civil Procedure. The Plaintiff is not permitted to rely on the report of the Russian doctor, as the report is not a medical report of a doctor licensed or registered to practice in Canada and therefore does not satisfy the requirements of section 52 of the Evidence Act.