Date: 20120523
Docket: A-74-12
Citation: 2012 FCA 152
Present: PELLETIER
J.A.
BETWEEN:
BELL HELICOPTER TEXTRON CANADA LIMITÉE
Appellant
and
EUROCOPTER
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1]
This is a
motion to settle the contents of the appeal book, one of the first steps in an
appeal from a judgment of the Federal Court in a patent action. As frequently
occurs in actions where there is a large volume of documents, the parties
prepared a joint book of documents for use at the trial. The question raised
by this motion is whether documents included in the joint book of documents but
not marked as exhibits at the trial should be included in the appeal book.
[2]
The
practice of preparing joint books of documents is intended to simplify document
management in complex trials. It helps everyone in the courtroom - lawyers,
judge, registry agents - to manage a large number of documents by assembling
them in one place and providing a uniform system for identifying those
documents. Large trials would be unmanageable without a system of this kind.
[3]
Difficulty
arises however when parties do not clearly address their minds to the use to be
made of those documents in the trial.
[4]
There are
two issues to be addressed in dealing with documentary evidence. The first is
the authenticity of the document. With rare exceptions, proof of authenticity
is fairly routine. A witness is called to testify that he or she prepared the
document and that the signature which appears on the document is their
signature. In the electronic age, slightly different considerations arise but
they are no more contentious than in the case of written documents. As a
result, it is not unusual for parties to agree that the documents in a joint
book of documents were made by the purported maker on or about the date they
bear.
[5]
The
troublesome issue is the use of the documents as proof of the truth of their
contents. This issue is inherently bound to the rule against hearsay, and to
the various exceptions to that rule such as business records. This process can
be simplified if parties agree that a document is evidence of the truth of its
contents. But, as this case shows, a further step is necessary. The fact that
a document appears in a joint book of documents and that authenticity and truth
of contents are admitted does, not without more, make that document evidence in
the trial. The compilation of documents into a joint book of authorities is a
matter of convenience and document management, not a matter of evidence.
[6]
The use to
which those documents may be put in the course of the proceedings can be left
to be decided as each document is tendered in evidence, or it can be the
subject of agreement between the parties, or some combination of the two.
[7]
In this
case, the parties filed a joint book of documents containing 540 documents plus
various pleading and orders. Of the 540 documents, authenticity was admitted
by both parties in almost all cases. However, only 14 of those documents were
admitted to be evidence of the truth their contents by both parties. One of
the parties, Bell Helicopter Textron Canada Limitée (Bell Helicopter), admitted
that 93 of the documents were evidence of the truth of their contents, while
the other party, Eurocopter, made the same admission with respect to 6 of the
541 documents in the joint book of documents.
[8]
As noted
earlier, the issue in the motion is whether only those documents which were
marked as exhibits in the trial are to be included in the appeal book. The
moving party, Bell Helicopter, takes that position. The respondent,
Eurocopter, wishes to include in the appeal book the balance of the documents
in the joint book of documents, some 231 documents. Fifty one of those
documents come from the group which Bell Helicopter agreed could be used as
proof of their contents whereas the other 182 are not caught by that admission.
In addition, Eurocopter seeks to include in the appeal book a document which
was made an exhibit at trial but which was struck out by the trial judge in the
course of the trial.
[9]
At the
trial, the issue of the status of the documents in the joint book of documents
was raised. The trial judge’s ruling is reproduced in full below:
MS. ROBINSON: Our understanding, My
Lord, of the Joint Book is that this is a vehicle for the convenience of the
parties and the Court, but a document is not tendered into evidence until it is
tendered in through a witness or another means, certification and the like.
So my ---
THE COURT: Well, I would put it subject
to what the parties have stated in their table.
MS. ROBINSON: Fair enough.
THE COURT: So there are elements which
are, in my opinion, already before the Court; that is, all the exhibits whose
authenticity and their content, as the case may be, were admitted. So they
don’t need to be filed formally by a witness. That is my understanding.
On the contrary, elements of the evidence
whose authenticity is admitted but their content is not admitted unless they
are filed just to prove the existence of the document, well, this poses no
problem.
But if they are filed to prove the
existence of their content which is not admitted, well then it would turn on
the burden of proof of the party who wants to use that document with respect to
its content to have a witness testify before the Court, which he may or maybe
not, depending on the content of the document, state that everything that’s in
the document is true to his knowledge. It could be just a sketch.
So on that reserve, well, yes,
they are going to be witnesses that will have to be produced and at the end of
the day, if a document was announced to be a document that was needed for the
purpose of its content and no witness came to testify on its content, well it
can only be used probably with respect to chronology or did you receive that
“mise en demeure” for instance.
[10]
As I
understand the judge’s ruling, documents whose authenticity was admitted and in
respect of which both parties agreed that they could be used as proof of their
contents, were to be considered as evidence without more. Where it was sought
to use documents in proof of their contents, and there was no agreement, the
party seeking to use the document would have the onus of establishing the
admissibility of the document as proof of the truth of its contents. I
conclude from this that the mere fact that a document was included in the joint
book of documents was not determinative of its evidentiary status.
[11]
In Bojangles’
International, LLC v. Bojangles Café Ltd., 2006 FCA 291, [2006] F.C.J. No.
1306 (Bojangles), Madam Justice Sharlow of this Court had before her a
similar motion. Eurocopter relies upon the following passage from my
colleague’s reasons:
The test
in Rule 343(2) is a flexible one. For example, it may be appropriate to exclude
from the appeal book a document that was presented in the court below to prove
a particular fact that will not be in dispute on appeal; on the other hand,
that document ought to be included if it is reasonable to suppose the appellate
court may require it to gain a full appreciation of the facts. Similarly, it
may be appropriate to exclude a document adduced by a party who does not intend
to rely on it to support any of its arguments on appeal; on the other hand, it
ought to be included if the opposing party has a reasonable basis for believing
that it may wish to rely on that document to support one of its argument on
appeal. Generally, an evidentiary document should be excluded if its only
foreseeable use is to enable one party to emphasize a general weakness in the
evidentiary foundation presented by the other party in the court below.
[12]
Bojangles was a
case about the exclusion from the appeal book of documents which were before
the decision-maker. Bojangles was a case of an appeal in the form of an
application where the Court takes the affidavits and attached exhibits as it
finds them, unless some objection is raised. As a result, there was no viva
voce evidence and no issue of the admissibility of documents. The question
was whether certain affidavits, or certain exhibits to affidavits, that were
before the Federal Court had to be included in the appeal book merely because
they were evidence in the Federal Court.
[13]
This
case is different because, here, the trial judge directed his mind to the
process by which a document in the joint book of documents would become
evidence in the trial. This case would be analogous to Bojangles if the
issue was whether to exclude from the appeal book documents which had been
marked as exhibits at the trial. In fact we are confronted with the opposite
issue, which is whether to include in the appeal book documents which were not
marked as exhibits at the trial.
[14]
I
am of the view that only those documents which the trial judge accepted as
evidence on the basis of admissions, or those which were marked as exhibits at
the trial should be included in the appeal book. The documents which are
accepted in evidence on the basis the parties’ admissions are limited to the 14
documents on which both parties were able to agree. As for the documents in
respect of which only one party made an admission as to the truth of its
contents, it is fundamental that one party’s admission that a document is
evidence of the truth of its contents does not make that document evidence of
its contents as against the adverse party. The use to which such a document is
used in the course of the trial varies with the circumstances. The document
could be tendered as evidence against the party who made the admission. Or it
could be used to cross-examine the witnesses called by the party who made the
admission. But those are all matters which would play out during the trial
itself. Once the trial is over, the evidentiary record is settled.
[15]
The
fact that the trial judge indicated in his Reasons that he had considered all
540 “exhibits” is puzzling since only 349 documents were marked as exhibits.
Had he considered all of the documents in the joint book of documents plus all
the other documents marked as exhibits, he would have had to consider
approximately 707 documents, since the plaintiff tendered 91 documents which
were not included in the joint book of documents while the respondent tendered
76 additional documents.
[16]
It
is a sound practice, at the close of evidence in a trial where the parties have
used a joint book of documents, to remove all documents which have not been
marked as exhibits from the document book so that the trial judge does not have
to constantly consult his notes to see whether a document has been introduced
in evidence or not. This eliminates the possibility of an inadvertent
reference to a document which is not properly before the Court.
[17]
In
my view, the parties were entitled to conduct the trial on the basis of the
trial judge’s evidentiary ruling at the beginning of the trial. If the trial
judge departed from his own ruling without advising the parties, then they have
their remedies in this court. However, in order to ensure that the panel
hearing the appeal has before it the documents which it may require, I will
authorize the respondent to prepare a compendium containing only those
documents which were not marked as exhibits and to which the trial judge made
reference in his decision. It will be for the panel hearing the appeal to
decide what use is to be made of those documents.
[18]
Bell
Helicopter is entitled to its costs to be assessed.
"J.D.
Denis Pelletier"
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