In the case of De Smedt v. Cheshire et al., 2023 ONSC 249, one of the issues before the Court (Justice Gilmore on the Toronto Estates List) on a motion for summary judgment was whether to accept medical records tendered as an attachment to a lawyer’s affidavit. The medical records were highly relevant to a determination of the validity of a Will.

The records contained a geriatrician report, psychiatric assessments, and notes and records from a hospital.

The lawyer who swore the affidavit to which the medical records were attached stated on examination that, not surprisingly, she had no personal knowledge of the contents of the records nor interactions with any of the treatment doctors or medical staff. The lawyer swore the affidavit simply as a means to introduce the records into evidence.

The Respondent took issue with admitting the records into evidence where the author of those records did not swear an affidavit in support. Counsel for the Respondent argued that the records were not directly sworn by witnesses who had first hand knowledge of important events. Counsel further argued that by virtue of the lawyer swearing the affidavit, it shielded the witnesses themselves from cross-examination.

Justice Gilmore distinguished the facts in this case from similar expert opinion cases where affidavits were not provided:

• the Respondents in this matter had the records in their possession for the same amount of time as the Applicants;
• the Respondents had ample time to compel the authors of the records to be examined; and
• the records were made contemporaneously and provided important information of the deceased’s condition;

Implicit in Her Honour’s decision appeared to be consideration of the principles of proportionality that are to guide a determination of the procedure employed by the court as set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

Having regard to the foregoing, the Court decided to admit the evidence and ascribed them significant weight in setting aside the Will on the basis of lack of testamentary capacity.

Thanks for reading,

Mashal