The Use of Surveillance in Civil Litigation: Iannarella v. Corbett
Earlier this year, the Ontario Court of Appeal released a lengthy decision in respect of a party’s obligation to disclose surveillance evidence throughout the litigation process if one intends to rely on such evidence at trial.
The factual background of Iannarella v. Corbett arose from a personal injury claim relating to a rear-end collision that occurred on a snowy winter evening. The Plaintiff claims that he suffered a rotator cuff injury to his left shoulder when the Defendant failed to stop in time before he collided with the Plaintiff’s vehicle. According to the Defendant’s testimony,
“there was nothing further he could have done to avoid the collision and repeatedly said that the accident was caused by “mother nature”. He told Mr. Iannarella at the scene: “Sorry, but I don’t control mother nature.”
While the Defendant may not be in control of mother nature, he was in control of his conduct throughout the proceedings.
In defence of the Plaintiff’s claims for damages, the Defendant retained private investigators to conduct surveillance on the Plaintiff over various time periods between 2009 and 2012. As the result, 130 hours of surveillance was recorded after the accident on February 19, 2012. However, the existence of the surveillance was not disclosed to the Plaintiff in an affidavit of documents nor were its particulars made known to him.
At trial, the Defendant sought to use the surveillance footage as evidence of the functionality of the Plaintiff’s left arm after the accident. Ultimately, the Court of Appeal found that the use of surveillance evidence at trial to be improper as “a form of trial by ambush”. The Court of Appeal was adamant that the disclosure obligations required by the Rules of Civil Procedure must be followed to ensure fairness and prompt settlement discussions.
In essence, as a general rule of thumb, a party may not rely on surveillance evidence if it is not disclosed through an affidavit of documents. Disclosure must be made either in full or as a privileged document, depending on whether the evidence is relied upon substantively or for impeachment purposes.
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