There were errors made in the admission and use of the joint document book that further frustrated appellate review and that should not happen in other cases. I laid out some elements of acceptable trial practice in Girao v. Cunningham, 2020 ONCA 260, at paras. 21-35. At paras. 33 and 34, I said: In my view, counsel and the court should have addressed the following questions, which arise in every case, in considering how the documents in the joint book of documents are to be treated for trial purposes: 1. Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents? 2. Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial? 3. Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial? 4. Are the parties able to introduce into evidence additional documents not mentioned in the document book? 5. Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book? 6. Does any party object to a document in the document book, if it has not been prepared jointly? It would be preferable if a written agreement between counsel addressing these matters were attached to the book of documents in all civil cases. In addition, it would be preferable if the trial judge and counsel went through the agreement line by line on the record to ensure that there are no misunderstandings.
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