Surveillance Must be Disclosed Before Trial

A recent decision from the Ontario Court of Appeal dealt with the use of surveillance evidence at trial.

In Iannarella v Corbett, 2015 ONCA 110 (C.A.), the plaintiff (Iannarella) had been rear-ended by the defendant (Corbett) and claimed that he had injured his rotator cuff as a result of the incident. Before trial, the defence filmed 130 hours of surveillance video of the plaintiff, but failed to disclose the existence of this surveillance in an affidavit of documents. Nevertheless, the trial judge allowed the defence to play the surveillance video at trial and to cross-examine Iannarella on its contents for the limited purpose of impeaching his credibility.

The jury found that Corbett was not liable for Iannarella’s injury. In the event that Corbett had been found liable, the jury would have awarded Iannarella $32,000 in general damages, $40,571 for past income loss and nothing for future income loss. Iannarella appealed.

In its decision, the Ontario Court of Appeal first concluded that the trial judge had incorrectly directed the jury on the issue of liability. The Court next turned its attention on the defence’s use of surveillance at trial. The Court explained that the Rules of Civil Procedure require that a party serve an affidavit of documents – whether or not the other side requests it – and this affidavit of documents must disclose the existence of any surveillance. Failure to properly disclose surveillance in this way means that said surveillance cannot be used at trial without leave of the court.

In this case, because the disclosure did not occur until the trial was well underway, the Court held that leave should not have been granted. The Court determined that the plaintiff had lost the chance to factor the surveillance’s existence into pre-trial settlement negotiations and had inadequate time to prepare an examination-in-chief that could properly respond to the surveillance. The Court said that, by allowing the defence to use the surveillance at trial, the trial judge had enabled a “trial by ambush.”

Due to these errors, among others, the Court substituted a finding of liability against the defendant and ordered a new trial on the issue of damages.

Defence counsel who wish to use surveillance at trial should be aware of Iannarella, and serve an updated Affidavit of Documents 90 days before trial in compliance with r. 30.09.