Nemchin v. Green
Ontario Reports Court of Appeal for Ontario
Rouleau, Lauwers and van Rensburg JJ.A.
July 31, 2019
147 O.R. (3d) 529 | 2019 ONCA 634
Case Summary
Civil procedure — Evidence — Surveillance evidence — Plaintiff suing for damages for personal injuries — Defendant seeking to introduce surveillance video evidence at trial for substantive purpose of establishing that plaintiff's daily activities were not as limited as she had led jury to believe — Trial judge excluding all surveillance videos — Trial judge erring by dealing with video evidence as whole rather than taking discrete approach to each video excerpt — Trial judge erring in finding that videos could only be shown if they contradicted plaintiff's evidence — Trial judge failing to assess whether admitting late-disclosed videos would be unfair or whether those videos were so similar to properly disclosed videos that plaintiff and her counsel were not unfairly taken by surprise.
The plaintiff sued the defendant for damages for personal injuries arising from a motor vehicle accident. It was undisputed that the plaintiff suffered from post-traumatic stress disorder. The main issue at trial was whether her PTSD was caused by the accident and was significant, or whether it was the result of an earlier sexual assault. Part of the plaintiff's case to the jury was a video of a yoga retreat which showed the plaintiff in various yoga poses and doing various activities that she testified were somewhat limited as a result of her PTSD. The defence sought to introduce surveillance video evidence for the substantive purpose of establishing that the plaintiff's activities of daily living were not as limited as she had led the jury to believe. Some of the videos were disclosed to the defence about two weeks before the trial started, but others were disclosed well in advance. The trial judge excluded all of the surveillance videos. She also ruled that the defence was not allowed to show the jury 20 of the plaintiff's Facebook posts as evidence of the plaintiff's functionality. The jury awarded the plaintiff damages in the amount of approximately $700,000. The defendant appealed, arguing that the trial judge erred in excluding the surveillance and Facebook evidence.
Held, the appeal should be dismissed.
The trial judge erred by dealing with the video evidence as a whole instead of taking a discrete granular approach to each video excerpt. She erred in concluding that the surveillance video evidence could only be shown to the jury if it contradicted the plaintiff. The evidence was arguably available to provide context and to qualify the plaintiff's testimony as to her true functionality. Further, the trial judge relied on the fact that the video evidence was not put to the experts for their opinion on how it should be interpreted in light of the plaintiff's PTSD claim. That was a factor the trial judge could take into account in exercising her discretion to exclude the surveillance videos. However, her analysis was lacking in that she failed to consider why the yoga video was in a different category, or to consider whether the experts could have been consulted further to determine whether the videos might have elicited further opinions and led to the need for testimony. Finally, the trial judge excluded the late-disclosed video evidence without assessing that evidence to determine whether its admission would be prejudicial. Late production is usually not a good reason for excluding relevant evidence where it is similar to evidence that was disclosed on time, so that the plaintiff and her counsel were not unfairly caught by surprise.
The trial judge excluded the Facebook posts on the basis that the defence contravened an access agreement between counsel. Appeal counsel noted that trial counsel were mistaken in advising the trial judge that the posts were covered by the access agreement. They were, therefore, technically available for use as evidence. However, on the facts as she understood them, the trial judge did not err in her ruling.
Assuming that the video surveillance videos were admissible and that the trial judge erred in excluding them, that evidence was not so significant that it would have affected the jury's verdict on damages. A new trial was not warranted.
Ismail v. Fleming, [2018] O.J. No. 5448, 2018 ONSC 6311 (S.C.J.); Taylor v. Durkee, [2017] O.J. No. 6435, 2017 ONSC 7358 (S.C.J.), consd
Other Cases Referred To
1162740 Ontario Ltd. v. Pingue (2017), 135 O.R. (3d) 792, [2017] O.J. No. 331, 2017 ONCA 52, 95 C.P.C. (7th) 205, 275 A.C.W.S. (3d) 558; Berthiaume-Palmer v. Borgundvaag, [2010] O.J. No. 2779, 2010 ONCA 470, 273 O.A.C. 397, 191 A.C.W.S. (3d) 647; Brisco Estate v. Canadian Premier Life Insurance Co. (2012), 113 O.R. (3d) 161, [2012] O.J. No. 5732, 2012 ONCA 854, 16 C.C.L.I. (5th) 45, 82 E.T.R. (3d) 211, 299 O.A.C. 283, 224 A.C.W.S. (3d) 349; Brochu v. Pond (2002), 62 O.R. (3d) 722, [2002] O.J. No. 4882, 166 O.A.C. 353, 119 A.C.W.S. (3d) 239 (C.A.); Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)); Iannarella v. Corbett (2015), 124 O.R. (3d) 523, [2015] O.J. No. 726, 2015 ONCA 110, 331 O.A.C. 21, 65 C.P.C. (7th) 139, 75 M.V.R. (6th) 185, 45 C.C.L.I. (5th) 171, 249 A.C.W.S. (3d) 922; Landolfi v. Fargione (2006), 79 O.R. (3d) 767, [2006] O.J. No. 1226, 265 D.L.R. (4th) 426, 209 O.A.C. 89, 25 C.P.C. (6th) 9, [2006] I.L.R. para. M-2048, 147 A.C.W.S. (3d) 400 (C.A.); Nemchin v. Green, [2017] O.J. No. 1444, 2017 ONSC 1321, 7 M.V.R. (7th) 22, 99 C.P.C. (7th) 30, 277 A.C.W.S. (3d) 331 (S.C.J.); Nemchin v. Green, [2017] O.J. No. 1163, 2017 ONSC 1403 (S.C.J.); R. v. Nikolovski (1996), 31 O.R. (3d) 480, [1996] 3 S.C.R. 1197, [1996] S.C.J. No. 122, 141 D.L.R. (4th) 647, 204 N.R. 333, J.E. 97-68, 96 O.A.C. 1, 111 C.C.C. (3d) 403, 3 C.R. (5th) 362, 33 W.C.B. (2d) 2; R. v. Vassel, [2018] O.J. No. 4512, 2018 ONCA 721, 365 C.C.C. (3d) 45; Vokes Estate v. Palmer, [2012] O.J. No. 3393, 2012 ONCA 510, 26 C.P.C. (7th) 13, 294 O.A.C. 342, 218 A.C.W.S. (3d) 994
Statutes Referred To
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6) [as am.]
Rules and Regulations Referred To
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 30.09, 53.08
Authorities Referred To
Fuerst, Michelle, and Mary Anne Sanderson, Ontario Courtroom Procedure, 4th ed. (Toronto: LexisNexis Canada, 2016)
Mewett and Sankoff, Witnesses, looseleaf (2019-Rel. 2) (Toronto: Carswell, 2017)
Judgment
APPEAL by the defendant from the judgment of Corthorn J. of the Superior Court of Justice, sitting with a jury, dated April 5, 2017.
Stephen Ross, Brian Sunohara and Meryl Rodrigues, for appellant.
Joseph Obagi and Elizabeth Quigley, for respondent.
The judgment of the court was delivered by
LAUWERS J.A.
[1] Yvonne Green, the appellant and the defendant in this case, made a left hand turn at an intersection into oncoming traffic and collided with Tanya Nemchin, the respondent and the plaintiff. The jury assessed liability for negligence at 90 per cent against Ms. Green, and 10 per cent against Ms. Nemchin for contributory negligence, and fixed damages in the amount of about $700,000, payable by Ms. Green to Ms. Nemchin.
[2] It is common ground that Ms. Nemchin suffers from post-traumatic stress disorder. The main issue at trial was whether her PTSD was caused by the collision and was significant, or whether it was the result of an earlier sexual assault. She also had some residual physical complaints. The jury's finding of causation and liability led to the determination of damages.
[3] The trial judge made two rulings on the evidence that appeal counsel for Ms. Green (who were not trial counsel) submit led to an unjust jury verdict. The defence was not permitted to show the jury surveillance evidence in order to establish that Ms. Nemchin's activities of daily living were not as much impacted by PTSD as she had led the jury to believe. The defence was not permitted to show 20 of Ms. Nemchin's Facebook posts to the jury as evidence to the same effect. The appellant argues that the exclusion of this evidence, which would have presented a more accurate picture of Ms. Nemchin's true capabilities, was wrong in law, and led to a miscarriage of justice requiring a new trial.
[4] I would dismiss the appeal for the reasons that follow.
A. The Issues on Appeal
[5] The court must address three issues: First, did the trial judge err in excluding all of the surveillance evidence? Second, did she err in excluding the Facebook evidence? Third, taking into account the trial context, the evidence and the arguments, did the trial judge make errors sufficiently grave to warrant a new trial?
B. Issue One: Did the Trial Judge Err in Excluding the Surveillance Evidence?
(1) The Video Surveillance Evidence
[6] The video surveillance was taken in three rounds: in May 2015, in September 2015 and in May 2016. The May surveillance and the September surveillance, and the related written reports, were disclosed in a timely manner in the summer and fall of 2015, respectively, well in advance of the trial. However, through inadvertence, the May 2016 surveillance video and report were not disclosed to the plaintiff until January 30, 2017. This was about two weeks before the trial began. This left two issues to be resolved regarding the surveillance. The first is whether the properly disclosed two rounds of surveillance were admissible on ordinary principles, and the second is about the effect of the delay in disclosure on admissibility of the third round of surveillance video.
[7] The appellant's factum states that the defence wanted to tender the surveillance as substantive evidence "for the jury's consideration as part of its fact-finding process with respect to the extent of the Plaintiff's alleged limitations and functioning, and in assigning a monetary value to the Plaintiff's alleged pain and suffering, loss of enjoyment of life and loss of income".
[8] The trial judge excluded all of the surveillance for the reasons reported at [2017] O.J. No. 1444, 2017 ONSC 1321, 7 M.V.R. (7th) 22 (S.C.J.).
(2) The Governing Principles
[9] Video evidence can be compelling. As noted by the Supreme Court of Canada in R. v. Nikolovski (1996), 31 O.R. (3d) 480, [1996] 3 S.C.R. 1197, [1996] S.C.J. No. 122, at para. 21:
The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at a critical juncture.
Recognizing this power, trial counsel for the plaintiff argued that the evidence should be excluded and the trial judge agreed.
(a) The Test for the Admissibility of Surveillance Evidence
[10] Contrary to the submissions of counsel, the test for the admissibility of surveillance evidence is the same whether it is to be used for impeachment purposes or for substantive purposes, and the approach to the assessment of the evidence in the voir dire must be the same.
[11] The test for the admissibility of video evidence is set out in Iannarella v. Corbett (2015), 124 O.R. (3d) 523, [2015] O.J. No. 726, 2015 ONCA 110, at paras. 93-95. The video evidence must be assessed by the trial judge in a voir dire for two purposes. The first is to permit the videographer to be examined in order to ensure that the video presents a fair and accurate depiction for the surveillance to be admitted in evidence. The second purpose of the voir dire is for the trial judge to ensure that the use of surveillance video will not impair trial fairness. See Iannarella, at paras. 95-99.
[12] The trial judge's task during the voir dire is to look at each piece of video evidence that the defence wants to put to the jury, and determine whether it is, in and of itself, admissible. This usually requires a discrete and granular assessment.
(b) The Key Distinction Between the Use of Surveillance to Impeach a Witness's Credibility and as Substantive Evidence of a Witness's Functionality
[13] This appeal brings into sharp relief the relationship between the two traditional uses of video surveillance evidence: on the one hand, for the purpose of impeaching the witness's credibility, and, on the other hand, for the purpose of showing her true functionality in substantive terms.
[14] This court explained that surveillance video may not be used as substantive evidence if the defence has chosen not to disclose it to the plaintiff on the ground that it is privileged and hopes to use it in cross-examination for impeachment purposes, in accordance with rule 30.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: Landolfi v. Fargione (2006), 79 O.R. (3d) 767, [2006] O.J. No. 1226 (C.A.); and Iannarella.
[15] However, where, as here, the surveillance evidence has been disclosed in accordance with the Rules of Civil Procedure (as this court strongly encouraged in Iannarella), it can play a dual role. A short video clip, for example, might show the witness doing a particular movement or activity that she testified she was not able to perform. It is open to the defence to use the excerpt in cross-examination to impeach the witness's credibility, and then also to use that excerpt to show the witness's true functionality for substantive purposes.
[16] Here the defence did not intend to use any of the excerpts from the video evidence in Ms. Nemchin's cross-examination to impeach her credibility or her testimony. Instead, the defence chose strategically to pursue the use of the surveillance for substantive purposes only and the trial judge's ruling was confined to that use.
[17] Conceptually the situation in this case is somewhat similar to two other recent cases, Taylor v. Durkee, [2017] O.J. No. 6435, 2017 ONSC 7358 (S.C.J.); and Ismail v. Fleming, [2018] O.J. No. 5448, 2018 ONSC 6311 (S.C.J.), both involving personal injury claims arising from car accidents.
[18] In Taylor, the plaintiff objected to the admission of surveillance evidence on the basis that it was "not relevant to any issue at trial": at para. 11. As McKelvey J. noted at para. 12, "[t]he plaintiff argued that the surveillance evidence could not have any relevance or probative value given that the activities shown on the video are consistent with what she is able to do on a good day".
[19] Such statements are often made by plaintiffs. Do they inoculate the plaintiff from the introduction of surveillance evidence for substantive purposes? The general answer is "no". In Taylor, McKelvey J. permitted the evidence to be led, noting, at para. 16:
In the present case, the plaintiff in her evidence at trial testified with respect to a number of significant physical impairments which include her right shoulder, neck and lower back. In my view, the fact that the plaintiff has acknowledged that on a good day she is able to perform the activities shown on the video should not lead to its exclusion as substantive evidence.
He noted, at para. 17, that the surveillance evidence was relevant to a fact in issue, specifically, "the degree of impairment suffered by the plaintiff in her activities of daily living". He held: "The fact that the plaintiff has given some evidence about her ability to do these activities on a good day does not mean that no other evidence may be introduced."
[20] In the view of McKelvey J., at para. 17: "There is a qualitative difference between the plaintiff's oral evidence on cross-examination and a video which actually shows her doing these activities." Relevant evidence on a critical issue should not be excluded. He pointed out that the jury would hear from a variety of sources apart from the plaintiff, including "evidence from other family and friends about their observations as well as medical evidence based on an assessment by a qualified expert". He noted: "It is ultimately a question of fact for a jury to weigh all of the relevant evidence and come to a conclusion about the nature and degree of any impairment." Jury instructions could be crafted to avoid impermissible jury reasoning.
[21] I agree with McKelvey J.'s reasoning in Taylor, which rests on principles of broader application.
[22] In Ismail, Leach J. decided a pre-emptive motion to exclude surveillance evidence for substantive purposes, brought by the plaintiff before any evidence was called and before any voir dire: at para. 5. The plaintiff objected to the surveillance evidence on various grounds: some of it had not been disclosed on a timely basis; the prejudicial effect of some of the video evidence outweighed its probative value; and the recordings "represented only a very small fraction of the total time spent by defence investigators in their efforts to obtain surveillance video helpful to the defendants' case": at para. 7.
[23] Justice Leach did not fully accept these objections. He noted that his ruling was "intended to provide general confirmation that the defendants will be permitted to tender, (if only through their own witnesses), a measure of surveillance video evidence relating to the plaintiff on various occasions": at para. 5. However, he made it clear that the admission of any actual surveillance evidence could be the subject of more specific rulings, if necessary: at para. 5.
[24] In Ismail, Leach J. was plainly uncomfortable with the blanket nature of the motion. He took a prudent approach. Although he gave a provisional ruling dismissing many of the plaintiff's objections to the surveillance evidence, he withheld blanket approval and left open the possibility for more specific rulings with respect to any particular video evidence. He did not, as he said at para. 13, give the defendants "'carte blanche' to introduce all of the surveillance video as substantive evidence, in whatever manner they chose". He noticed a number of potential concerns, "albeit concerns [he] felt were capable of being addressed through more specific rulings and/or supportive contextual evidence and detail".
[25] The cases note that there is a distinction between the use of video surveillance evidence to impeach the witness's credibility, and for the purpose of showing her true functionality in substantive terms. Where does the distinction leave trial judges?
[26] As noted earlier, the second purpose of the voir dire is for the trial judge to ensure that the use of surveillance video will not impair trial fairness. See Iannarella, at paras. 95-99. This includes considering the application of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)). Few cases have received this court's attention as often. So, I pause to recall what the rule, which is less a rule than a principle of fairness, is about.
[27] In their text Witnesses, looseleaf (2019-Rel. 2) (Toronto: Carswell, 2017), Professors Mewett and Sankoff put the rule simply, at p. 12-63: "To the extent that there is a rule in Browne v. Dunn, it requires a party to cross-examine opposing witnesses on any point he or she later intends to contradict by calling evidence to this effect or suggesting during closing submissions that the witness's testimony should not be accepted." They identify the following as a caveat:
[M]ost courts seem to recognize that the primary objective of the rule is to ensure that a witness has the chance to address "major" contradictions so that their evidence can be assessed fairly . . . In R. v. Dexter, [2013 ONCA 744, 313 O.A.C. 226] the Ontario Court of Appeal made the same point, referring to Browne v. Dunn as a rule of "trial fairness" that requires counsel to give witnesses a chance to address contradictions in cross-examination. The rule was not violated by minor omissions, as "only the nature of the proposed contradictory evidence and its significant aspects need be put to the witness" [at para. 18].
[28] As Watt J.A. noted in R. v. Vassel, [2018] O.J. No. 4512, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 128: "Confrontation on matters of substance is what is required." His earlier point, at para. 120, sets the scene:
The rule is one of fairness, thus not a fixed or invariable rule, much less a rule of admissibility. The extent of its application rests within the sound discretion of the trial judge, a discretion that is subject to significant deference on appeal: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 76-77 and 80, leave to appeal refused, [2016] S.C.C.A. No. 203.
[29] The trial judge must decide whether the claimed contradiction warrants full-on cross-examination as a matter of trial fairness. Consider a continuum. At one end is a flat-out discrepancy between the plaintiff's claimed functionality and her actual functionality. An example would be the asserted inability to make a particular hand movement and surveillance evidence that shows the plaintiff able to do it. The plaintiff, in short, appears to be lying. This is the major discrepancy/impeachment end of the spectrum, where the witness's credibility is being challenged.
[30] At the other end of the spectrum, there is relatively little difference between the plaintiff's claimed and actual functionality. An example would be the situation in Taylor, where the plaintiff testified that she could do what the surveillance evidence depicted "on a good day". This is the minor discrepancy end of the spectrum.
[31] Trial judges must assess where the situation before them is to be placed on the spectrum. If it is more towards the major discrepancy/impeachment end, then trial fairness suggests that the evidence should be put directly to the witness in cross-examination. A witness should not be called a liar without being given an opportunity to explain the discrepancy. Assuming the surveillance evidence was properly disclosed, then the evidence is also capable of being used for substantive purposes.
[32] However, if the situation presents as more towards the minor discrepancy end of the spectrum, then the surveillance evidence can be put in as substantive evidence without first being put to the witness for impeachment purposes. The assessment of where the situation falls is within the trial judge's discretion, provided always that trial fairness is properly evaluated.
(c) The Timing of Motions to Exclude Surveillance Evidence
[33] Taylor and Ismail also address the timing of a motion to exclude surveillance evidence. In Taylor, the motion was argued after the plaintiff had been set up during cross-examination to testify about what was shown in the surveillance evidence. In Ismail, the motion was brought before any evidence was adduced, leaving Leach J. with an even more limited context in which to decide the issue. In this case the motion was brought before cross-examination began, which limited the defence's opportunity to set the issue up properly.
[34] In my view, trial judges need not be governed entirely by the actions of counsel in bringing motions to exclude surveillance evidence. In both Ismail and in this case, it would have been open to the trial judge to refuse the plaintiff's motion and invite it to be renewed at a more appropriate time. In the context, the approach taken by Leach J. in Ismail is generally preferable to an early and exhaustive ruling on the admissibility of surveillance evidence. However, pre-emptive wholesale attacks on surveillance evidence of the sort brought in Ismail and in this case should generally be avoided.
(3) The Trial Judge's Surveillance Ruling
[35] To set the context of the trial judge's surveillance ruling, part of the plaintiff's case to the jury was a video of a yoga retreat, which showed Ms. Nemchin in various yoga poses and doing various activities that she testified were somewhat limited as a result of the PTSD from which she was suffering. Perhaps trial counsel led this video evidence pre-emptively to take some of the sting out of the anticipated defence surveillance.
[36] The voir dire on the surveillance evidence took the better part of two days at trial. Ordinarily the voir dire would take place after the witness has been set up in cross-examination, as in Taylor. But in this case, it occurred prematurely, at a break in Ms. Nemchin's examination-in-chief, rather than after the stage had been set in her cross-examination.
[37] Counsel for Ms. Nemchin launched a full-on challenge to the admissibility of any of the surveillance evidence. The trial judge erred in accepting the approach taken by Ms. Nemchin's counsel of dealing with the video evidence as a whole instead of taking a discrete granular approach to each video excerpt the defence wanted to put into evidence.
[38] The trial judge issued a brief oral ruling and later released the written ruling (reasons reported at [2017] O.J. No. 1444, 2017 ONSC 1321, 7 M.V.R. (7th) 22 (S.C.J.), supra). She gave three substantive reasons for refusing to admit the video evidence, and several process reasons.
[39] First, she stated, at para. 65:
The defendant submits that the events and activities shown on the video footage are contradictory to the evidence of the plaintiff to date with respect to her physical limitations, psychological symptoms of post-traumatic stress disorder, and lack of comfort driving. I disagree.
The trial judge found the surveillance to be of "minimal probative value and . . . therefore inadmissible" (at para. 63), on the basis that to be admissible, the "probative value of the surveillance video [footage] must be such that it is capable of contradicting, challenging, or impugning the witness' testimony": at para. 64. For this proposition, she cited para. 99 of Iannarella, excerpted above.
[40] Second, the trial judge accepted the plaintiff's argument that, in the context of Ms. Nemchin's PTSD, the jury could not be expected to interpret the surveillance evidence meaningfully without expert opinion evidence. She noted, at para. 75:
[N]one of the experts, including the defence medical examiner, have reviewed the surveillance evidence and provided an opinion as to the significance of the activities depicted in the footage. The plaintiff's position is that absent expert opinion on the significance of the activities depicted, in particular in the context of a claim based on post-traumatic stress disorder, it would be prejudicial to the plaintiff for the defendant to be able to make submissions in closing argument as to the significance of those activities.
Nor does it appear that Ms. Nemchin provided the yoga video to the expert she retained before or at the trial, or to the defence expert.
[41] Third, the trial judge found that the last round of video surveillance was not admissible because it was served on the plaintiff too late, citing para. 55 of Iannarella.
(4) The Principles Applied
[42] I address each ground of the trial judge's reasoning in turn. I observe that there seems to have been a shift in the defence position between the trial and the appeal.
[43] Appeal counsel played a short four-minute video clip for this court of images of Ms. Nemchin that he argues should have been left with the jury. (I infer that this is the most significant video out of about two-and-a-half hours of available video.) The video was played without commentary, and appeal counsel then made this submission:
At the trial the defendant sought to rely on this evidence as substantive evidence not for the purposes of impeachment, not because they said it directly contradicted anything she said, [but] for its ability to help the jury understand the nature and extent of the plaintiff's injuries and during that surveillance, as you may have appreciated, the plaintiff is captured active in public locations, physically capable with no visible limitations, socially engaged with others in both fairly intimate and more crowded settings. It wasn't the whole answer to the case, it was another brick in the wall. It was a bit of substantive evidence the jury should have had to consider the issues in dispute in this case which was clearly the nature and extent of her injuries.
[44] This appeal submission takes a different tack than trial counsel took. It downplays the defence argument at trial, which the trial judge set out, at para. 65 of her reasons: "[T]he events and activities shown on the video footage are contradictory to the evidence of the plaintiff to date with respect to her physical limitations, psychological symptoms of post-traumatic stress disorder, and lack of comfort driving."
[45] It is interesting that the same evidence could be portrayed so differently. As explained by trial counsel, the evidence seemed to be more along the line of impeachment. In playing the video without prior cross-examination, the implicit defence submission to the jury would have been along these lines: "How can someone like Ms. Nemchin who suffers from PTSD carry on as she does in this video? She must be malingering or exaggerating her PTSD related symptoms." But appeal counsel presented the surveillance as contextualizing evidence as in Taylor.
[46] As her first ground for refusing the admission of the surveillance evidence for substantive purposes, as noted, the trial judge did not agree that "the events and activities shown on the video footage are contradictory to the evidence of the plaintiff to date with respect to her physical limitations, psychological symptoms of post-traumatic stress disorder, and lack of comfort driving": at para. 65.
[47] However, the trial judge erred in concluding that it could only be shown to the jury if it contradicted the plaintiff. The evidence was arguably available to provide context and to qualify the plaintiff's testimony as to her true functionality, along the lines of the evidence in Taylor.
[48] As her second ground, the trial judge also relied on the fact that the video was not put to the experts for their opinion on how it should be interpreted in light of her PTSD claim. This is a factor the trial judge could take into account in exercising her discretion to exclude the surveillance video. Her analysis is lacking in failing to consider why the yoga video was in a different category, or in considering whether the experts could have been consulted further to determine whether the video might have elicited further opinions and led to the need for testimony.
[49] With respect to her third ground, the trial judge had discretion not to admit the late-disclosed surveillance video. The appellant invokes rule 53.08, which provides that if a party who has failed to disclose documents nonetheless seeks leave from the trial judge to adduce the evidence, "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". This issue was canvassed in Iannarella, at paras. 77-90. Contrary to the appellant's submission, rule 53.08 is not mandatory in an absolute sense. In the context of an ongoing civil jury trial an adjournment is often not a viable or reasonable response, and the trial judge can take that factor into account.
[50] That said, however, the trial judge did not assess the late-disclosed surveillance to determine whether its admission would be prejudicial, in the sense noted by Leach J. in Ismail, at para. 13, which I borrow. The question is whether there were any realistic or meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise by the admission of such evidence at trial. Late production is usually not a good reason for excluding relevant evidence where it is similar to evidence that was disclosed on time, so that neither the plaintiff nor her counsel were unfairly caught by surprise. The trial judge erred in not assessing whether the late surveillance evidence should be admitted considering fairness and surprise.
[51] In my view, none of the three substantive reasons given by the trial judge for excluding the surveillance hold up under scrutiny.
(5) The Trial Judge's Process Reasons for Refusing to Admit the Surveillance Evidence
[52] I now turn to consider the trial judge's process reasons for refusing to admit the video surveillance. In order to understand the trial judge's reasoning, it is necessary to distinguish three types of video recordings.
[53] The first type is raw video, which is the data recorded by the cameras. The second type is "edited" video, which consists of the recordings compiled by the videography firm, some of which the defence wanted to show the jury. The edited video came from a larger set of video recordings, the third type, called the "unedited" video, which the defence did not seek to show to the jury in its entirety. However, the "unedited" recordings were not raw recordings, but had undergone some editing. Footage that did not depict Ms. Nemchin was excised. The investigator was using more than one camera from time to time, including his cell phone. He did not know exactly how raw footage was edited, but it appears that the unedited video was spliced together from the various sources of the raw video on a chronological basis. There was no surviving raw video.
[54] The trial judge concluded, at para. 47, that the video should not be admitted into evidence: "The video footage, both edited and unedited, is not accurate in truly representing the facts." She gave four reasons, none of which are persuasive.
[55] First, some of the video was time stamped and some of it was not. This was explained as the effect of zooming in past the time stamp. But there was no evidence that the zoomed in video was different from the unedited video from which it was derived. The actual timing, to the extent that it was relevant, would have been easy to establish.
[56] Second, the trial judge found that because the investigator did not know precisely how the video had been edited, he was unable to provide verification on oath that the video was accurate, even though he filmed it. The editing undertaken by the videography firm was inadequately described in the investigator's written surveillance reports. But that does not affect whether a particular sequence of images was accurate or not in what it depicted, or the investigator's ability to authenticate it.
[57] Third, the videography firm's support staff picked out "stills" from the video that were included in the body of the reports. These stills were pictures that "most describe" the inconsistency or inconsistencies a staff member identified between the subject's asserted life limitations and the activities depicted in the video: at para. 40. The trial judge was troubled that some descriptions in the written surveillance reports contained subjective elements. She found, at para. 52: "In my view, it is inappropriate for the investigator to include his personal, subjective observations of the plaintiff in the surveillance report in any way whatsoever." Nonetheless, the trial judge did not find the investigator intended to mislead, nor did she determine that the editing was biased: at paras. 57, 60. In my view, the trial judge gave far too much weight to the written surveillance reports, perhaps assuming they would form part of the evidence before the jury. But the critical evidence was the video itself, not the surveillance reports, which could have easily been excluded or redacted if they contained questionable text.
[58] Fourth, although there were many hours of footage, there were gaps. The trial judge picked out an example in which Ms. Nemchin was walking along Bank Street in Ottawa. She noted at para. 43 that "[t]he video covers a total time of approximately 40 minutes, but has been edited to 12 minutes". She added that "[t]here are other examples where a significant amount of time has been edited from the video footage, resulting in an incomplete and/or inaccurate depiction of the plaintiff's activities": at para. 44. While the trial judge found the investigator's explanation for the gaps to be "understandable" she nonetheless found the video to be "incomplete footage which does not accurately depict the plaintiff's activities": at para. 46.
[59] With respect, there is no requirement that a video be continuous or complete before it can be said to accurately depict a witness's activities. Lengthy surveillance is rarely played for a jury. Doing so would usually be a waste of valuable trial time. The key is to ensure that the excerpts played are fair and accurate.
[60] As noted, the trial judge's task was to look at each piece of video evidence and determine whether it was, in and of itself, admissible. She did not take this sort of granular approach to the video evidence, but dealt with it as a whole. This led her into error.
[61] None of the trial judge's process reasons for excluding the surveillance evidence hold up under scrutiny. They are all matters of weight for the trier of fact to consider. I agree with the observation made by Michelle Fuerst & Mary Anne Sanderson in Ontario Courtroom Procedure, 4th ed. (Toronto: LexisNexis, 2016), at p. 1097: "A video recording is admissible as soon as it is established that it depicts the scene and has not been altered or changed -- any other factors, such as the integrity of the recording or the identity of a speaker, are matters for the trier of fact and go to weight only, not admissibility."
C. Issue Two: Did the Trial Judge Err in Excluding the Facebook Posts?
[62] At trial, in the latter part of Ms. Nemchin's cross-examination the defence sought to put some 20 of her own Facebook posts to her. I infer that these posts would have formed the basis of a critical cross-examination that would have challenged Ms. Nemchin's functionality in terms of her PTSD using the text and the pictures in the posts.
[63] Defence counsel told the trial judge that these were Facebook posts obtained through an access agreement between counsel, under which the plaintiff's Facebook page was reactivated to allow defence counsel to retrieve information from it, but on the condition that the information would be copied and provided to plaintiff's counsel "posthaste". The defence accessed the Facebook posts but then did not provide copies in breach of the access agreement, again, it is claimed, "[t]hrough inadvertence".
[64] Before this court, counsel for Ms. Green acknowledged that trial counsel for the defence had not retained a copy of the 20 specific Facebook posts that he wanted to put to the witness or to use as substantive evidence. It was a practice error on the part of trial counsel and the trial judge not to make these Facebook posts lettered exhibits in the voir dire on the motion. As the court noted in 1162740 Ontario Ltd. v. Pingue (2017), 135 O.R. (3d) 792, [2017] O.J. No. 331, 2017 ONCA 52, at para. 14: "The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before her at any moment in the course of the trial."
[65] Appeal counsel for Ms. Green filed a brief of Facebook posts with this court showing the plaintiff in various yoga poses and other situations that he asserted resembled the brief trial counsel sought to put to the jury.
[66] The trial judge ruled, in reasons reported at [2017] O.J. No. 1163, 2017 ONSC 1403 (S.C.J.), that the Facebook posts could not be used as evidence on the basis that, in light of the six volumes of Facebook posts the defence wanted to file, "the prejudice to the plaintiff, at [that] point in time, in the preparation and the presentation of her case [was] too significant, and so [the trial judge was] not going to allow [the defence] to cross-examine [the plaintiff] on the Facebook pages".
[67] Before this court, appeal counsel noted that trial counsel was mistaken in advising the trial judge that the Facebook posts had come from the retrieved information covered by the access agreement. As it turns out, upon closer examination, they were actually from an earlier time that was not covered by the access agreement. They were, therefore, technically available for use as evidence. But this is not the situation that was presented to the trial judge for disposition.
[68] On the facts as she understood them concerning the origin of the Facebook posts that the defence sought to put to Ms. Nemchin, the trial judge did not err in her ruling, despite the mandatory wording of rule 53.08. As noted earlier, this issue was canvassed in Iannarella, at paras. 77-90. Given that the issue of the admissibility of the Facebook posts did not arise until towards the end of Ms. Nemchin's cross-examination and given the confusion around their origin, which can only be laid at the feet of trial defence counsel, the trial judge's discretionary ruling was reasonable.
[69] By way of aside, the approach that Leach J. took in relation to the late-produced surveillance in Ismail would otherwise have application. The trial judge was required to consider whether there were any realistic or meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise by the admission of such evidence at trial.
D. Issue Three: Is a New Trial Warranted?
[70] I reach this issue on the assumption that the surveillance videos were admissible and that the trial judge erred in excluding them.
[71] In a civil action, a new trial "should not be ordered unless the interests of justice plainly require that to be done": Brochu v. Pond (2002), 62 O.R. (3d) 722, [2002] O.J. No. 4882 (C.A.), at para. 68. Another way to express the test is that the appellant must "show that a substantial wrong or miscarriage of justice has occurred", in the terms of s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43: Vokes Estate v. Palmer, [2012] O.J. No. 3393, 2012 ONCA 510, 294 O.A.C. 342, at para. 7. This is a contextual assessment, and the appeal court may consider the entire record, including counsel's jury addresses: Brisco Estate v. Canadian Premier Life Insurance Co. (2012), 113 O.R. (3d) 161, [2012] O.J. No. 5732, 2012 ONCA 854, at para. 71; and Berthiaume-Palmer v. Borgundvaag, [2010] O.J. No. 2779, 2010 ONCA 470, 273 O.A.C. 397, at paras. 15, 20.
[72] In the context of this trial, would the video surveillance have made a difference to the outcome? Could the exclusion of this evidence have caused a miscarriage of justice?
[73] This is a case-specific contextual assessment. The opening statements of counsel, the closing statements, the jury charge, and the jury questions identify the live issues. They were the liability for the collision itself, whether the collision caused a recurrence of Ms. Nemchin's PTSD, and her ongoing physical and psychological functionality as a person with PTSD.
[74] The critical live issue at the trial was causation: did the collision cause the PTSD from which Ms. Nemchin is now suffering, or was it caused by the sexual assaults that she had experienced as a younger person? The contest between the respective experts was clear, and the jury's award shows beyond doubt that it preferred the evidence of Ms. Nemchin and her experts.
[75] The amount awarded was driven in part by the jury's assessment of Ms. Nemchin's ability to earn income in the future, and this was related to the ongoing effects of PTSD. In brief, the defence's position was that even with PTSD Ms. Nemchin could do more to earn a living than she was doing at the time of the trial. This issue was also hotly contested, with evidence marshalled on both sides by Ms. Nemchin and the defence. Again, the jury clearly preferred Ms. Nemchin's evidence.
[76] The minor persisting physical injuries or psychological issues injuries pose some ongoing problems for Ms. Nemchin's functionality but did not loom large in the trial. Ms. Nemchin played a video of a yoga retreat which showed her completing some challenging poses and socializing. The video excerpts shown to this court that the defence wanted to play for the jury as substantive evidence of her functionality do not add much to, or subtract much from, the video of the yoga retreat. The surveillance video posed no real contradictions and little grist for cross-examination, as the trial judge observed, on Ms. Nemchin's evidence about her physical or mental functionality as a result of the collision and her PTSD.
[77] I would find that even if the excluded surveillance evidence were to have been admitted, it was not so significant that the evidence would have affected the jury's verdict on damages.
E. Disposition
[78] I would dismiss the appeal and award costs to the respondent in the amount of $44,000, all-inclusive, as agreed.
Appeal dismissed.
End of Document
