The Use of Surveillance in Civil Litigation II: Bishop-Gittens v. Lim

June 11, 2015 Hull & Hull LLP Continuing Legal Education, In the News, Litigation Tags: , , , , 0 Comments

As a part two of my blog from Tuesday, the Superior Court recently released a decision on the issue of disclosure for surveillance evidence.

The litigation in Bishop-Gittens v. Lim also arose from a motor-vehicle accident.  In this particular case, the Plaintiff brought a motion, prior to opening submissions at trial, to exclude surveillance evidence that had been gathered by the Defendant.  The issue before the Court was whether the Defendant should be allowed to rely on the surveillance and video footage for impeachment purposes under the following set of circumstances:

  • there was no reference to surveillance in the Defendant’s affidavit of documents, as none had been conducted at that time;
  • during the examination for discovery, the Defendant advised the Plaintiff that no surveillance had taken place;
  • surveillance was conducted one month after the Defendant’s examination for discovery and over various days two years after the initial surveillance;
  • the Defendant did not deliver a revised affidavit of documents in advance of trial; and
  • there was no disclosure of the surveillance evidence until a letter disclosing the particulars of the surveillance, without a copy of the surveillance evidence itself, was delivered to the Plaintiff less than one month before trial.

Justice McKelvey concluded that the Defendant was in breach of the Rules, and

“In light of the defence’s failure to disclose the surveillance information in a prompt manner, it is apparent that this evidence may not be referred to during the trial unless leave is given by this court.  The test for leave in connection with both a failure to disclose a document under rule 30.08 and the failure to correct an answer on discovery under rule 31.09 is governed by rule 53.08.  This rule provides that where evidence is admissible only with leave of the trial judge, “leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.”

The case law makes it clear that, in considering whether leave should be granted under rule 53.08, a trial judge must grant leave unless to do so will cause prejudice that cannot be overcome by an adjournment or costs.  See Marchand (Litigation Guardian of) v. The Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 OR (3d) 97 (ON CA).  As noted in the Iannarella decision, this mandatory orientation is understandable, since relevant evidence, including surveillance, is ordinarily admissible.”

Ultimately, Justice McKelvey allowed the Defendant to rely on the surveillance evidence only for the purposes of impeachment.  The present circumstances before Court was distinguished with Iannarella because the trial not yet begun and neither party had taken any steps at trial which could result in prejudice by not knowing that this evidence may be introduced.

Thanks for reading (again)!

Doreen So

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