Surveillance particulars must be served even if not relying on it at trial

A recent decision has held that a defendant who obtains surveillance must serve particulars of it, even if not relying on it at trial.

In Arsenault-Armstrong v. Burke, 2013 ONSC 4353 (S.C.J.), the plaintiff sought an undertaking that the defendant provide particulars of future surveillance, including date, time, name of investigator and so forth.  The defendant refused to provide particulars if she was not relying on the surveillance at trial.

Justice Hambly held that the defendant must provide particulars of surveillance even if she does not intend to rely on it at trial.  At paragraph 11, Justice Hambly stated:

[11]           The consequences of the defence not producing the full particulars of surveillance evidence in its possession, even if in the period leading up to the trial the defence is of the view that it will not rely on it at trial are well illustrated in Beland.  The surveillance evidence will assist the plaintiff in evaluating the strength of her case and arriving at her settlement position prior to trial.  Even if the defendant will not be able to use the surveillance evidence for impeachment purposes, as a result of its non-disclosure, the defence will gain knowledge of the plaintiff from the surveillance evidence which it will be able to use to its benefit.  A requirement that the defence produce it even if it does not presently intend to use at trial is consistent with what the Court of Appeal said in Ceci v. Bank (1992), 7 O.R. (3d) 381 quoted above by Justice Howden.  In Beland, after a 17 day trial a jury dismissed the plaintiff’s case.  The trial judge fixed costs against the plaintiff, exclusive of HST at $115,318. This is a devastating result for a plaintiff. Perhaps it could have all been avoided if the disputed surveillance evidence had been produced by the defendant.

The difficulty with this decision for the defence is that the value of surveillance as an impeachment tool may be lost if the plaintiff has knowledge of the particulars.  In addition, if the defence does not intend to rely on it at trial, how can it assist in settlement?  Lastly, the decision does not give guidance on how far in advance of trial the particulars must be disclosed.

Is the Insurer Always Justified in Denying Coverage On the Basis of a Breach of a Statutory Clause?

Every automobile insurance policy issued in Ontario contains statutory clause 4.1:

 

                The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.

 

Section 32 of Highway Traffic Act requires an operator of a motor vehicle to hold a valid driver’s licence. In Kozel v.Personal Insurance Co. [2013] ONSC 2670 (S.C.J), the applicant was a 77 woman year old woman who was involved in a motor vehicle accident in Florida. Her insurer denied coverage on the basis that she was in breach of the policy at the time of the accident because her driver’s license had expired. The applicant brought this application for a declaration that the insurer owed a duty to indemnify and defend her in a third party action against her.

 

Approximately five months prior to the accident, the applicant received documentation from the Ministry concerning the renewal of her driver’s licence and vehicle plate sticker. Two weeks prior to the renewal date, the applicant gave the package of documentation to her dealership where she took delivery of a new vehicle. She was unaware that this package contained her licence renewal. Until the accident occurred, she was unaware that her licence had not been renewed. She reported the accident in a timely manner and renewed her license immediately upon discovering it was expired.

 

Justice Wood cited the 2011 Court of Appeal decision Tut v. R.B.C. General Insurance Company [2011] ONCA 644 where it was held that if an offence for breaching the regulation was one of strict liability rather than absolute liability, it was open to the insured to argue that he took all reasonable care in the circumstances to see that he was not in breach of the regulation. Were he able to argue this defence successfully it would follow that he remained authorized to drive within the meaning of statutory condition 4(1).

 

Justice Wood held that since an offence of driving with an expired licence is one of strict liability, an argument that the applicant exercised due diligence was available. Justice Wood found that the applicant took active steps to ensure that she met her duty, although mistakenly, she provided a believable explanation for her lack of perfect diligence and her actions were those of a reasonable person acting upon a genuinely mistaken belief.  As such, the court found that the applicant was entitled to a defence under the policy.

 

This case shows that breaches of the insurance policy are not always clear cut and can involve the consideration by the court of many subjective factors.    

Can a Plaintiff Avoid Discovery Due to Medical Reasons?

Can a plaintiff avoid attending discovery or an independent medical examination due to anxiety or an inability to respond to questions appropriately?

In Lalousis v. Roberts, 2013 ONSC 5897 (S.C.J), the plaintiff sought $4 million in two actions relating to two motor vehicle accidents.  She alleged that she could not participate in oral discovery or an IME  due to medical reasons, including that she was not able to respond to questions, had poor communication and attention, and discovery would increase her anxiety and depression.  She sought to avoid the discovery process or have her husband act as a substitute.

Master Muir dismissed the motion.  A party has a prima facie right to a full and complete discovery of an adverse party, which includes oral examination and may include a medical examination.  The threshold to limit a party's right to discovery is a high one and should be ordered only in the rarest of cases.  In the circumstances, an examination for discovery might be unproductive as she may not provide responsive answer, and it could cause anxiety for the plaintiff; however, there was no evidence that it would cause her permanent damage.

In order to permit the defence to fully respond to the claim against it, it makes sense that the threshold for taking away those rights is very high.

Restoring an Action to the Trial List

The Court of Appeal has provided guidance with respect to the test for restoring an action to the trial list.

In Nissar v. Toronto Transit Commission, 2013 ONCA 361 (C.A.), the plaintiff alleged she was injured while a passenger on a bus in 1999. Examinations for discovery took place in 2002, but transcripts were not ordered and the tapes were destroyed in 2010.  Although the matter was set down for trial in 2004, it was struck off the trial list in 2005.  The plaintiff changed counsel three times.  The motion to restore the action to the trial list was not brought until 2011, and not heard until 2012.  The motion judge dismissed the motion, holding there was no explanation as to why it had taken seven years to bring the motion to restore the action to the trial list, and there was prejudice to the defendant as pre-accident OHIP records were not available and the defendant might not remember details of an accident that occurred 13 years previously.

The Court of Appeal dismissed the appeal. The plaintiff bears the onus of demonstrating there is an acceptable explanation for the delay in the litigation and that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice.  In the circumstances, the plaintiff had failed to meet the test.

The Nissar decision was release concurrently with the Faris case, which was the subject of last week's post. They may signal a new emphasis on moving cases swiftly through the system, rather than allowing them to languish for several years.