Videotaping Examinations for Discovery

In what circumstances will a court permit examinations for discovery to be videotaped?

J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)

This action arose out of allegations of historical sexual assault.  The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues.  The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial.  The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse.  A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial. 
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.


Justice Hennessy allowed the motion.  Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts.  There was a higher than normal probability that the defendant would not be available at trial given his age and health status.  The video was permitted under r. 34 rather than r. 36. 

Amendments to the Minimum Maintenance Standards - Part 6

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 6:  Sidewalks

The MMS were amended in February 2010 to require annual inspections of sidewalks for surface discontinuities and required treatment of surface discontinuities that exceeded two centimetres.  The standard has been amended to expressly provide that a surface discontinuity is deemed to be in a state of repair if it is less than or equal to two centimetres.  The standard also provides that sidewalks are deemed to be in a state of repair between annual inspections, provided that the municipality does not acquire actual knowledge of a surface discontinuity in excess of two centimetres.  It will be interesting to see the extent to which the constructive knowledge provision is applied in sidewalk cases.

Amendments to the Minimum Maintenance Standards - Part 5

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 5:  New Ice Formation and Icy Roadways Standard

The MMS previously required municipalities to treat icy roadways within a prescribed time after becoming aware that the road was icy.  This remains the standard for roads that have become icy but is now part of a larger, more comprehensive standard for ice prevention and treatment. 

The standard for prevention of ice formation requires municipalities to monitor the weather and patrol as described above.  If, as a result of these activities, a municipality determines that there is a substantial probability of ice forming on a roadway, it must treat the road to prevent ice formation within a specified time, starting from the time it determines is appropriate to deploy resources for that purpose.  Treating a road means applying material, including but not limited to salt, sand or a combination. 

The ice prevention standard provides that roads are deemed to be in a state of repair until the time that the municipality becomes aware that the roadway is icy or the applicable time for ice prevention expires, whichever is earlier.  This should be read in conjunction with the constructive knowledge provision.  The icy roadways standard has also been amended to provide that roads are deemed to be in a state of repair until the applicable time for treatment expires.

As with the snow accumulation standard, the ice prevention standard is a response to the narrow interpretation of the icy roadways standard in Giuliani.  The discretion afforded to municipalities to determine when to deploy resources to prevent ice formation may be subject to challenge in future claims.  Nonetheless, compliance with the standard will assist in defending claims where it is alleged that a municipality failed to anticipate icy road conditions.

Amendments to the Minimum Maintenance Standards - Part 4

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 4:  New Snow Accumulation Standard

The MMS previously required municipalities to clear snow within a prescribed number of hours after becoming aware of the fact that specified snow accumulation depths were reached.  This part of the standard is essentially unchanged, though it now requires municipalities to “address” snow accumulation and “reduce the snow depth” rather than “clear” the snow.   

However, there have been several additions to the standard.  The most significant addition is a provision which states that if the depth of snow accumulation on a roadway is less than or equal to the specified depth for that class of roadway, “the roadway is deemed to be in a state of repair with respect to snow accumulation”.  This provision is clearly intended to address the restrictive interpretation of the snow accumulation standard in Giuliani and should provide municipalities with a strong defence in cases where the standard is met.  The standard also sets out how the depth of snow accumulation on a roadway may be determined and how it may be addressed. 

The requirement that municipalities address snow accumulation after becoming aware of it must be read in conjunction with the constructive knowledge provision in section 1 of the MMS, which provides that a municipality is deemed to be aware of a fact if circumstances are such that the municipality ought reasonably to be aware of the fact.