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)!
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.
Thanks for reading!