



COURT OF APPEAL FOR ONTARIO

CITATION: Bukshtynov v. McMaster University, 2019 ONCA 1027

DATE: 20191231

DOCKET: C65552

Lauwers, Fairburn and Zarnett JJ.A.

BETWEEN

Vladislav
    Bukshtynov
, Katerina Bukshtynova, and Ksenia Bukshtynova

Plaintiffs (
Appellant
)

and

McMaster University, Flying Angels Running Club,
    George Kerr, Hwang Lee and/or John Doe Runner

Defendants (Respondents)

Bonnie Roberts Jones and Bethanie Pascutto, for the
    appellant

Edward Key and Bradley Remigis, for the respondents
    Flying Angels Running Club, George Kerr, and Hwang Lee

Alexander Paul and Kaleigh Sonshine, for the respondent McMaster
    University

Heard: September 25, 2019

On
    appeal from the judgment of Justice Alan C.R. Whitten of the Superior Court of
    Justice, dated August 20, 2018, sitting with a jury.

Fairburn
    J.A.:

A.

Overview

[1]

The appellant was jogging on an indoor track at McMaster University when
    Hwang Lee, a member of the Flying Angels Running Club, ran into him from behind.
    The appellant suffered a serious injury and required surgery to his shoulder.
    He sued McMaster University, Mr. Lee, the Flying Angels Running Club, and its
    coach, George Kerr.

[2]

No negligence was found on the part of McMaster University or Mr. Lee.
    While the Flying Angels Running Club and Mr. Kerr were found negligent, the
    jury determined that the appellant had contributed to the incident by failing
    to move running lanes when asked to do so. The jury found the appellant to be
    40 percent contributorily negligent. In the end, including prejudgment
    interest, the plaintiffs collectively received around $80,000 net in damages.

[3]

The appellant advanced four grounds of appeal. The trial judge is said
    to have erred:


(i)

in his charge to the jury when he described the inner lane of the track
    as the default lane;


(ii)

in ruling that an email authored by a track employee who did not testify
    was inadmissible;


(iii)

in ruling that a letter sent by McMaster University to the Ontario
    Ministry of Labour was inadmissible; and


(iv)

in ruling that a chart created by a subrogation reimbursement vendor for
    two U.S. insurers was inadmissible.

[4]

For the reasons that follow, I would dismiss the appeal.

B.

Analysis

(1)

The Charge to the
    Jury on Lane One

[5]

It was a busy day at the four-lane, 200 metre indoor track. It was
    uncontested at trial that a bobsled team was using lanes three and four. Nor
    was it contested that the Flying Angels Running Club was using lane two for
    speed endurance runs. The incident happened in lane two.

[6]

Coach Kerr testified that he asked the casual joggers who were there
    that morning to move to lane one. He spoke to at least six to eight people
    without incident. He specifically asked the appellant if he wouldnt mind
    staying in lane one or on the inner red as the runners were limited to the
    two lanes that day because of the bobsled activity that was taking place.

[7]

Although the appellants evidence varied somewhat from Mr. Kerrs, he
    acknowledged that he had been asked to move. He said that he was told to move
    to the shoulder area because lanes one and two were being used for sprints.

[8]

In his charge to the jury, the trial judge described lane one as the
    default lane. The impugned instruction, set in its proper context, follows:

So, you have a scenario where given the presence of the bobsled
    team in three and four and the use of lane two by the Flying Angels,
the
    default lane for joggers
would be lane one, otherwise theres inevitably
    going to be a safety issue as the plaintiff had complained of. [Emphasis
    added.]

[9]

The appellant argues that the trial judge erred in describing lane one
    as the default lane. He maintains that this description made it sound like
    lane one was the official default lane for slower runners. He says that this
    would have left the jury with the impression that he was breaching an official
    rule by jogging in lane two. He argues that this mischaracterization of lane
    one as the default lane would have adversely impacted upon the jurys
    determination of contributory negligence.

[10]

I do not agree that the jury would have suffered any confusion on this
    point.

[11]

First, describing lane one as the default lane for joggers accords
    with the evidence in this case. Read in context, the trial judges description
    of lane one does not suggest an official rule that lane one was only for
    joggers. Rather, it describes the practical reality of the situation at the
    indoor track on the day of the incident. Lanes two to four were, for all
    intents and purposes, occupied. Multiple witnesses testified that the bobsled
    team was occupying lanes three and four and that the Flying Angels were running
    sprints in lane two. By process of elimination, or by default, that left lane
    one for the slower runners.

[12]

Second, even if one were to accept that the trial judge mischaracterized
    lane one, the jury knew that it fell within their sole domain to determine the
    facts in this case. They were carefully instructed that nothing the trial judge
    said should sway them in that fact-finding mission. The following instruction
    makes the point:

In no way are you bound to follow my comments or opinions so
    far as evidence is concerned. If your views vary from mine, or if you disagree
    with my comments about the evidence, you may not only disregard my views or
    opinion, it is your duty to disregard my comments.

[13]

Accordingly, if the jury did not agree with the trial judges
    characterization of lane one as the default lane for joggers, then they would
    have come to their own findings of fact in that regard.

[14]

Finally, the jurys finding on contributory negligence is informative on
    this issue. The jurys conclusion makes it clear that they did not decide the
    issue on the basis that lane one was the default lane, but on the basis that
    the appellant refused to move lanes when asked to do so. The following excerpts
    from the appellants testimony demonstrates that he refused to move to lane
    one:

Q. Right, and lane one, you could have moved into lane one. You
    could have run in lane one?

A. Again I didnt see any reason. If I was told by McMaster
    official that I am free to use  lane number two, why do I need to move to lane
    number one if I can continue my running at lane number, or just using lane
    number two? Thats ridiculous. At least its ridiculous to me.



Q. And so even if someone comes up to you and says, Would you
    mind moving over to lane one because we want to use lane two for sprints, you
    werent going to move?

A. Say it again please.

Q. You were not going to move even if someone asked you to move
    over to lane one?

A. Why do I need to do this?

Q. Exactly. You werent going to move even if you were asked.

A. No. If I have a right to do what I want to why [do I] need
    to change my mind?

[15]

As recorded on the Questions to the Jury sheet, the jury concluded that
    the appellant was 40 percent contributorily negligent because he was asked to
    move to a different lane, but he refused and because a reasonable person
    would take precautions (move to lane 1) to ensure his/her safety. Accordingly,
    the jurys finding on contributory negligence demonstrates that it was swayed
    by the fact that the appellant refused to move lanes when a reasonable person
    would have done so, not by the fact that lane one was a default lane.

(2)

The Inadmissibility
    of the Jordan Murray Email

[16]

Jordan Murray was working at the front desk in the athletic centre where
    the track is located on the day of the incident. She was at the front desk 
    not at the track  when the incident occurred. Ms. Murray did not witness the
    incident. Having heard about it from others, she sent an email to her
    supervisor, Mr. T.J. Kelly. That email contains hearsay and double hearsay
    about what Ms. Murray heard from others about what had happened at the track.
    The passage from the email emphasized by the appellant during oral submissions
    follows:

THEN, Jeremy [Steinbach] came down and told us to call EFRT,
    because I guess George [Kerr], from The Flying Angels Track Club, was trying to
    reserve 2 lanes up there and telling community members they couldnt run in
    their lanes. One community member continued to do so and so he instructed his
    kid to just run him over, which he literally did, and dislocated the community
    members shoulder.

[17]

Ms. Murray was not called to testify at trial. Instead, the appellant
    attempted to enter the email during his questioning of Mr. Kelly. Counsel to
    McMaster University objected to the admission of the email on the basis that it
    was hearsay.

[18]

At trial, the appellant took the position that the email was akin to an
    incident report and, therefore, should be admitted into evidence. He also said
    that it was relevant to what Mr. Kelly did as a result of the email  his state
    of mind. The trial judge ruled that the email was hearsay and, while the
    appellant could call Ms. Murray to testify, the email could not be filed in
    evidence. When Mr. Kelly was asked what he did as a result of receiving the
    email, he said that he filed it.

[19]

On appeal, the appellant argues that the email was admissible hearsay
    under the documents in possession rule. The appellant maintains that because
    Mr. Kelly acted upon the email, it was admissible for the truth of its
    contents. The appellant relies on
R. v. Turlon
(1989)
,
49 C.C.C. (3d) 186 (C.A.),
    at pp. 190-91, in support of that proposition:

Beyond this threshold issue the instruction was in error in
    another respect. In
Phipson

on Evidence
, 13th ed. (1982), para.
    21-09, it is stated:

Documents which are, or have been, in the possession of a
    party will, as we have seen, generally be admissible against him as
original
    (circumstantial)
evidence to show his knowledge of their contents, his
    connection with, or complicity in, the transactions to which they relate, or
    his state of mind with reference thereto. They will further be receivable
    against him as
admissions
(
i.e.
exceptions to the hearsay rule)
    to prove the
truth
of their contents if he has in any way
recognised,
    adopted
or
acted
upon them.

(Emphasis in original.) I accept this statement from
Phipson
as an accurate statement of the law. Knowledge of the contents of the letter
    was not a condition precedent to evidentiary value of the letter. Possession of
    the letter was evidence of knowledge or complicity in the scheme of drug
    importation and distribution. On the other hand, the respondent's denial that
    he knew the letter was in his briefcase was evidence to the contrary. The
    possession of the letter and the denial by the respondent were both part of the
    evidence as a whole to be considered by the jury.

[20]

The appellant argues that had the email been admitted for the truth of
    its contents, it could have contradicted the
viva voce
evidence given by
    a number of other witnesses in the case. In other words, it would have provided
    evidence that the Flying Angels coach had directed his runner to run into
    the appellant. At a minimum, the appellant argues that the email would have
    constituted strong evidence impacting on the apportionment of liability.

[21]

The documents in possession rule does not assist the appellant.

[22]

While documents found in the possession of a party may constitute
    original circumstantial evidence of the partys knowledge of their contents,
    there was nothing about Mr. Kellys knowledge of the contents of the email that
    was relevant to the issues for determination at trial. The fact is that the
    appellant wanted the Murray email admitted into evidence for the truth of its
    contents. On appeal, the appellant acknowledges this fact and says that the
    documents in possession rule was the gateway to admissibility for that purpose.

[23]

As a factual matter, Mr. Kelly testified that his only action in
    relation to the email was to file it. While it appears that a video from the
    track had been preserved by someone, Mr. Kelly testified that he didnt take
    any steps to speak with security services to preserve any other video. As it
    related to the one video that had been preserved, Mr. Kelly testified that he
    did not know why that had been done.

[24]

The receipt and filing of an email, and even the preservation of a
    video, is not the type of action contemplated in
Turlon

for
    triggering the exception to the hearsay rule. The hearsay exception arising
    from the documents in possession rule only applies where the hearsay statement
    is acted upon in the sense that it turns into an admission by the recipient.
    The simple filing of an email, or even the preservation of a video (had that
    occurred), is not the type of action contemplated by the documents in
    possession rule. Were that to be so, the rule would create a wide berth in
    terms of admitting hearsay statements for the truth of their contents.

[25]

A related concern in this case is that the email itself contains at
    least double hearsay. The email recounted what Jordan Murray heard Jeremy
    Steinbach say about what he heard George Kerr say to his runners. The
    inadmissible nature of that evidence is revealed by simply asking whether, had
    Ms. Murray testified, she would have been permitted to recount this hearsay.
    The answer is clearly no, an answer that likely informs why she was not called
    to testify as a witness. As she was not present at the track, she had no
    relevant evidence to give.

[26]

Finally, numerous witnesses testified about what had occurred at the
    track that day. A number of those witnesses are referenced in the Murray email.
    In particular, Mr. Steinbach testified about what he heard Mr. Kerr tell his
    runners. Mr. Steinbach said:

So once his group started to warm up and then run, he would
    instruct  he would tell, yell out track, track if his athletes were running
    and people were in the way to hope to avoid collision. At a certain point and
    time after continually doing this, he had mentioned that if anyone got in their
    way to run into them.

[27]

While Mr. Kerr denied having told his runners to run into anyone, the
    jury heard Mr. Steinbachs first-hand account of what he overheard the running
    coach say. Accordingly, even if the trial judge had been wrong in ruling the
    email inadmissible  which he was not  the jury had the salient information
    contained in the email before it for consideration. In these circumstances,
    there can be no suggestion of a substantial wrong or miscarriage of justice.

(3)

Letter to the Ontario Ministry of Labour

[28]

Within days of the incident, McMaster University wrote a letter to the
    Ontario Ministry of Labour, Occupational Health and Safety Branch. The letter
    reported that a critical injury had occurred at the workplace. Among other
    things, the letter addressed the Steps taken to prevent a recurrence:

The McMaster University Athletics and Recreation Track Policy
    is available both online and in the area of the track. Follow up communication
    will take place regarding this policy to all parties involved in the incident.

[29]

The letter also said that, based upon the results of a police
    investigation, McMaster University may also take further actions as
    necessary.

[30]

The appellant attempted to introduce the letter into evidence during the
    cross-examination of Mr. Kelly, the supervisor at the athletic centre. The
    appellant took the position that the letter was relevant in two ways. First, it
    showed that McMaster University considered that the accident was a serious one.
    Second, the appellant argued that the letter was tantamount to an admission
    by McMaster University that its practices at the time contributed to the accident
    and that changes would make the area safer.

[31]

The trial judge ruled the letter inadmissible, finding that the
    prejudicial impact of the letter outstripped its probative value. He said that
    the letter created an air of official sanction, when in fact it was nothing
    more than a statutorily required report to the Ministry of Labour. The trial
    judge said:

I am a little concerned with this particular document that
    somehow it creates an aura of official sanction, or it attributes significance
    to something they had to do. They were obliged statutorily to do this. The
    witness has already testified as to the changes made. I think its probative
    value is somewhat limited in these circumstances. Im inclined not to allow it
    to go in.

[32]

The trial judge specifically rejected the appellants argument that the
    letter showed that McMaster University had deemed that its own policies were
    responsible for the accident and not the appellants behaviour. The trial judge
    suggested that the appellant was trying to extract more significance out of
    this than it is due. He went on to observe that the letter was just a
    reporting of an incident and that:

[T]he fact that the university has to report to [the] Ministry
    of Labour, I think it is unnecessary in the circumstances. Really  it doesnt
    add anything. Whatever it does add is potentially inflammatory because it has
    potential for some kind of official sanction.

[33]

The appellant argues that the trial judge erred in denying the letters
    entry into evidence because it showed that McMaster University itself believed
    that its policies were inadequate or inadequately communicated to the parties
    involved in the incident. The appellant argues that the letter was stronger
    evidence of this point than the actual changes to McMaster Universitys signage
    in the track area after the incident.

[34]

This ground of appeal cannot succeed.

[35]

The trial judge sits in an especially privileged position, one where she
    or he is able to assess the dynamics of the trial and the likely impact of the
    evidence on the jurors":
R. v. Shearing
, 2002 SCC 58, [2002] 3
    S.C.R. 33, at para. 73. Accordingly, the trial judges decision to exclude
    evidence based upon a determination that its probative value is outweighed by
    its prejudicial effect is a discretionary one to which deference applies:
R.
    v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31.

[36]

The probative value of evidence depends upon the context in which that
    evidence is proffered:
Araya
, at para. 31. As noted by the trial
    judge, the context in which the letter was authored is highly informative of
    its potential probity.

[37]

McMaster University reported the incident because it was of the view
    that it was required to do so under s. 51 of the
Occupational Health and
    Safety Act,
R.S.O. 1990, c. O.1
(
OHSA
). Section 51(1) reads:

Notice of death or injury

51 (1) Where a person is killed or
critically
    injured
from any cause at a workplace, the constructor, if any, and the
    employer shall notify an inspector, and the committee, health and safety
    representative and trade union, if any, immediately of the occurrence by
    telephone or other direct means and the employer shall, within forty-eight
    hours after the occurrence,
send to a Director a written report of the
    circumstances of the occurrence containing such information and particulars as
    the regulations prescribe
. [Emphasis added]

[38]

Section 1(d) of the regulations under the
OHSA
,
Critical
    Injury  Defined
,
R.R.O. 1990, Reg. 834, defines critically
    injured as including a fracture of a leg or arm but not a finger or toe. It
    is not in dispute that the appellants shoulder injury fell within the
    definition of critically injured, such that the incident had to be reported in
    accordance with s. 51(1) of the
OHSA
.

[39]

Section 5(1) of
Health Care and Residential Facilities,
O. Reg.
    67/93, sets out the details that must be included in a written report required
    under s. 51(1) of the
OHSA
. Section 5(1)(h) requires that the report
    include reference to the steps taken to prevent a recurrence.

[40]

Considered against this legislative backdrop, the trial judge was right that
    the letter contained virtually no probative value. The reference to the injury
    being a critical one was simply a reference to the fact that the injury fell
    within the statutory requirements for notice.

[41]

As for the reference to the [s]teps taken, the letter did nothing more
    than reference the policy that was already in place at the time of the
    incident. Mr. Kelly provided
viva voce
evidence about those same
    details, about how the policy related to track usage and where it had been
    posted. Indeed, the policy itself was filed as an exhibit at trial.

[42]

In these circumstances, deference should be shown to the trial judges
    conclusion that the prejudicial impact of the letter, arising from the aura of
    official sanction outstripped the probative value of the letter.

[43]

Even if the letter should have been admitted into evidence, its
    exclusion did not have an impact on the outcome of the trial. The rationale underlying
    the track policies at the time of the incident, and their evolution after the
    incident, were thoroughly canvassed through the witnesses, including Mr. Kelly.
    The jury was well-equipped to appreciate the appellant's position that McMaster
    University was negligent because it failed to adequately display and enforce
    policies that were necessary for the safety of runners in its facilities.

(4)

Documentary Evidence Provided by Rawlings

[44]

The appellant received healthcare benefits under two plans that were
    insured by Blue Shield of California and Florida Blue. Both plans allowed for
    what was referred to in the
voir dire

as a reimbursement claim.
    If a third party was found liable for his injuries, the appellant was required
    to repay the insurers for any insured treatments that were related to those
    injuries. The appellants insurers contracted with Rawlings Company, a
    subrogation and reimbursement vendor, to collect from any award the appellant
    may receive at trial. If the appellant failed to reimburse Rawlings from any
    amount awarded to him at trial, the health insurance providers would be in a
    position to proceed against him.

[45]

At trial, the appellant put forward two charts prepared by Rawlings
    Company. The Rawlings charts were said to reflect the amount paid to the
    appellant by Blue Shield insurance (US$15,343.44) and the amount paid by the Florida
    Blue insurance (US$368.95) for which reimbursement would be sought from the
    appellant.

[46]

The Rawlings employee who prepared the charts, which were said to
    itemize the appellants insurance claims, did not testify. Instead, a lawyer
    from Rawlings testified on the admissibility
voir dire
by video link.
    She confirmed in cross-examination that the charts had only been prepared two
    weeks prior to her evidence. They were based on documents that the insurers had
    provided to Rawlings. The witness also confirmed that correspondence filed
    along with the charts as lettered exhibits on the
voir dire
stated that
    the actual author of the charts inquired of counsel to the appellant whether
    any of the charges are unrelated to the accident. When asked about that
    comment on the
voir dire
, the witness testifying on behalf of Rawlings
    said that Rawlings would collaborate with parties to make sure they had
    related claims included in a lien.

[47]

The trial judge excluded the charts. He had concerns about their
    accuracy and what they reflected. As he said, his immediate problem was that
    the amounts reflected on the Rawlings records did not even dovetail with the
    appellants own calculations, something the appellant had earlier testified
    about.

[48]

The trial judge also pointed out that the Rawlings witness confirmed
    that the analyst who prepared the charts appeared to inquire of the appellant
    whether any of the charges were unrelated to the accident. In other words,
    and as found by the trial judge, the analyst did not have the necessary
    medical background or knowledge of the internal decisions made by either of the
    health insurance carriers.

[49]

While the trial judge acknowledged that s. 35 of the
Evidence Act,
R.S.O. 1990, c. E.23,
allows for records
    made in the usual course of business to be admitted as an exception to the
    hearsay rule, he relied on
Setak Computer Services Corp. v. Burroughs
    Business Machines Ltd.
(1977), 15 O.R. (2d) 750 (Sup. Ct.), to exclude the
    records. He found that the charts reflected nothing more than a compilation of
    insurance carriers records. While Rawlings was described as a compiler of
    business records, the trial judge pointed out that they engaged in that
    exercise without the expertise or knowledge of what exists within the
    insurance providers.

[50]

Ultimately, the trial judge excluded the Rawlings charts on the basis
    that they constituted second hand compilations of the insurers records. Despite
    having excluded the charts, the trial judge allowed the appellant time to
    adduce the records of the insurance payouts from the insurance companies, even
    if the appellant had to call that evidence outside the usual order in a
    trial. The appellant chose not to enter those records into evidence.

[51]

The appellant argues that the trial judge erred by failing to admit the
    charts as a business records exception to the hearsay rule. The appellant
    maintains that the trial judge failed to appreciate that the proponent of the
    record need not have personal knowledge of the information contained in those
    records. Had the records been admitted into evidence, they would have
    demonstrated that the appellant should have received special damages for those
    amounts.

[52]

The trial judge did not err in excluding the charts.

[53]

It was open to the trial judge to exclude the charts. They reflected
    nothing more than a compilation of source documents from the insurers, which
    documents were created many years before and provided to Rawlings only shortly
    before the trial. Indeed, the charts were created only two weeks before the
    appellants attempt to elicit them in evidence. The accuracy of the charts was
    very much in dispute, including, as the trial judge observed, as a result of the
    appellants own evidence. Even the author of the charts questioned their
    accuracy when she asked the appellants own counsel in correspondence whether
    any of the charges included in the chart were unrelated to the accident.

[54]

The business records rule, as contained within s. 35(2) of the
Evidence
    Act
, provides that records of an act, transaction, occurrence or event
    are admissible for the truth of their contents, if made in the usual and
    ordinary course of any business and if it was part of the usual and ordinary
    course of such business to make such record at the time of such act,
    transaction, occurrence or event or within a reasonable time thereafter. The
    Rawlings charts did not meet the requirements of s. 35(2) because the charts were
    not made in the usual and ordinary course of business and did not record acts,
    transactions, occurrences or events within a reasonable time of those events. Rather,
    the charts were more akin to a demonstrative aid than a record of transactions
    and, even then, the author of the charts seemed somewhat uncertain as to their
    accuracy. The trial judge was equally concerned, a concern that partially arose
    from the fact that the charts did not even match the appellants own evidence
    regarding what had been paid by the insurers.

[55]

As well, the Rawlings witness who testified on the
voir dire
was not familiar with the source documents. No one from Rawlings would have
    been sufficiently familiar, given that the source documents used to create the
    charts were not Rawlings documents, but those of the insurance companies.

[56]

Importantly, the trial judge extended to the appellant the opportunity
    to lead the relevant records from the insurers, ones that would have been
    admissible under s. 35 of the
Evidence Act
. Despite having been
    extended that opportunity, the appellant chose not to lead that evidence.

C.

Conclusion

[57]

I would dismiss the appeal.

[58]

The appellant is ordered to pay costs in the agreed upon amount $20,000
    to the respondent McMaster University and $10,000 to the respondents Flying
    Angels Running Club, George Kerr, and Hwang Lee, H.S.T. and disbursements
    included.

Released: P.L. December 31, 2019

Fairburn J.A.

I agree. P. Lauwers J.A.

I agree. B. Zarnett J.A.


