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.

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.

Disclosure of Surveillance - 2

Aherne v. Chang, 2011 ONSC 3846

This is an appeal from Master Short’s recent decision on the issue of ‘when is privilege waived?’.

The defendants argued that if they provided surveillance material to an IME doctor, the privilege was not waived until the doctor released the report. The plaintiff argued that the privilege was waived as soon as the surveillance was given to the IME doctor. The defendant seems to want to avoid having the plaintiff’s lawyer review the surveillance before the plaintiff goes to the IME to make sure that the plaintiff doesn’t embellish during the IME.

It seems that the defendant in this case could have avoided this entire problem if they simply held onto the surveillance materials and let the IME doctor assess the plaintiff and prepare the report. Then, after the report is released, the defendant can provide the IME doctor with the surveillance, and ask the IME doctor if the surveillance changes his/her opinion.

Thanks to M. Edward Key for bringing this appeal to our attention and for the comments.

Disclosure of Surveillance

If surveillance is provided to an independent medical assessor, does it have to be produced to the plaintiff, even if the assessor does not rely on it in forming his or her opinion?

In Aherne v. Chang, [2011] O.J. No. 1880 (S.C.J.), the plaintiff sued for injuries alleged to have been caused as a result of medical treatment provided by the defendant. On the defendant's examination for discovery, his counsel confirmed that there had been no surveillance undertaken but refused to answer questions pertaining to disclosure of any future surveillance that might be undertaken after the discoveries. Counsel for the defendant took the position that privilege over documents released to a medical examiner, is waived only if the document is relied upon by the medical examiner, and not at the time that the document is released to the medical examiner. The plaintiff sought to obtain copies of any surveillance that was released by the defendant to a physician or healthcare practitioner retained for purposes of a defence medical assessment.

Master Short held that from the moment of his retainer to conduct a Rule 33 examination, a defence medical examiner owes his or her primary duty to the court. It is inappropriate and unseemly for the court to prevent any party before it from having contemporary access to the information provided to that expert.

Master Short summarized the following principles emerging from the rules and previous jurisprudence:

(a) if information is sent to an expert, then the same information should be sent to the opposing party to allow that party to test the expert’s opinion;
(b) an opposing party is entitled to the facts on which the expert’s opinion is based;
(c) so long as an expert read a document sent to him or her, then that document was considered, such that it is a “finding” that must be produced;
(d) the privilege claimed over a document sent to an expert is waived at the time that it was decided to rely on that expert’s opinion or in circumstances where privilege is waived over the report, even if the waiver was inadvertent;
(e) by sending a defence medical assessor portions of surveillance, privilege over the full surveillance video or all photographs is waived.

Master Short held that privilege is lost at the point the material is sent to an expert retained for the purpose of a Rule 33 examination. It was therefore held that the defendant is obliged to provide a copy of any surveillance of the plaintiff concurrently with its release to any defence medical examiner.