Court File and Parties
COURT FILE NO.: 12-56112 DATE: 20170302 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
TATIANA NEMCHIN Plaintiff – and – YVONNE GREEN Defendant
Counsel: Joseph Obagi and Adam Aldersley, for the Plaintiff Thomas Ozere and Kim Dullet, counsel for the Defendant
HEARD: February 22 and 23, 2017
RULING Motion No. 3 Surveillance
CORTHORN J.
Introduction
[ 1 ] The defendant in this personal injury action sought to rely on surveillance video of the plaintiff as substantive evidence. It was not the intention of the defendant to rely on the surveillance evidence for the purpose of impeachment.
[ 2 ] When the examination-in-chief of the plaintiff was close to completion, a break in her evidence was taken. A ruling was required at that time as to whether the surveillance video footage would be admitted as substantive evidence. The plaintiff requested the ruling to be able to deal with the surveillance evidence, should any of this evidence be determined to be admissible, during the balance of the examination-in-chief.
Background
[ 3 ] The plaintiff’s claim arises from a motor vehicle collision that occurred on December 1, 2010 in the City of Ottawa. The action was commenced in November 2012. The most significant of the injuries which the plaintiff alleges she suffered as a result of the collision is that she suffers from post-traumatic stress disorder.
[ 4 ] The examination for discovery of the defendant was conducted in August 2013. The subject of surveillance was canvassed as follows. Counsel for the plaintiff stated, “Counsel, there is no indication in your Schedule B that there was any surveillance. I take it there is none.” Counsel for the defendant replied, “There is none.” [1]
[ 5 ] The evidence before me is that no further questions with respect to surveillance were posed at the examination for discovery of the defendant. There is no evidence of any follow-up, prior to February 2017, in writing or otherwise, by counsel for the plaintiff with respect to surveillance.
[ 6 ] Surveillance of the plaintiff was first carried out in May 2015 by an investigator retained on behalf of the defendant. The report of that surveillance is dated June 2015. The existence of that report and the related video of the surveillance were disclosed to the plaintiff in the late summer of 2015.
[ 7 ] Surveillance was next carried out in mid-September 2015. The report of that surveillance is dated October 2015. The existence of the second report and video were disclosed to the plaintiff in the fall of 2015.
[ 8 ] The first two rounds of surveillance were disclosed to the plaintiff as follows. An unsworn supplementary affidavit of documents (the first and second such affidavits), in which the respective reports and videos were listed as Schedule “A” documents, were produced to the plaintiff. At the same time, the plaintiff was provided with a copy of the respective reports and videos.
[ 9 ] The reports and videos related to the first two rounds of surveillance were disclosed in a timely manner − within a matter of weeks of the date of each report.
[ 10 ] A third round of surveillance was conducted in May 2016. The report of that surveillance is dated June 2016. Through inadvertence on the part of counsel for the defendant, the existence of that surveillance – both the report and the video – was not disclosed to the plaintiff until January 30, 2017. Once again, the disclosure was in the form of an unsworn, supplementary affidavit of documents (the fourth supplementary affidavit) with copies of each of the report and the video.
[ 11 ] Each of the three surveillance reports produced identify that the video produced had been edited and that an unedited version of the surveillance had been placed in storage for retrieval at a later date if necessary.
[ 12 ] On February 10, 2017 – the Friday immediately preceding the Monday on which the trial was scheduled to commence – counsel for the plaintiff made a request for production of the complete, unedited videos of the surveillance conducted in 2015 and 2016. The unedited videos were produced in as timely a manner as was possible early in the week of February 13, 2017.
The Trial
[ 13 ] The trial of this action was scheduled to commence on February 13, 2017. Two preliminary motions were argued on that date. The jury was selected on the morning of February 14. Opening statements were made on the afternoon of February 14. The plaintiff commenced calling evidence on the morning of February 15, 2017.
[ 14 ] The plaintiff was the second witness called at trial. Her evidence commenced on February 17, continued on February 21, and was halted towards the completion of the examination-in-chief.
[ 15 ] A voir dire was conducted on February 22, with the investigator who conducted the surveillance giving oral evidence. Argument on the motion was heard on morning of February 23, 2017. Oral reasons were given on the morning of February 24, 2017 with this Ruling to follow.
The Issues
[ 16 ] Given the intention of the defendant to rely on the surveillance as substantive evidence, the admissibility of all of the surveillance evidence depends on the following three criteria:
- Accuracy in truly representing the facts;
- Its fairness and the absence of any intention to mislead; and
- Its verification on oath by a person capable to do so. [2]
[ 17 ] For any portion of the surveillance which satisfies the three criteria listed immediately above, the next issue to be determined is whether the probative value of the evidence outweighs the potential prejudice to the plaintiff.
[ 18 ] For the surveillance obtained in 2016 there is an additional issue to be determined. Specifically because this surveillance evidence was not disclosed until two weeks prior to the commencement of trial, the defendant requires leave of the court to rely on the evidence at trial, whether as substantive evidence or for the purpose of impeachment. A determination is therefore required as to whether the defendant is entitled to leave of the court in the circumstances of this case.
The Positions of the Parties
a) The Defendant
[ 19 ] The defendant’s position is that all of the surveillance evidence satisfies the three-part test for admissibility generally (the “three-part test”).
[ 20 ] The defendant relies on the testimony of the investigator, the contents of the surveillance reports, and the contents of both the edited and unedited videos. The defendant submits that:
- The investigator satisfactorily explained his methodology, the equipment used, and his practices in obtaining the surveillance;
- There is nothing in the evidence of the investigator to support a finding that there was any intention to mislead;
- The edited and unedited versions of the video are substantially the same; and
- There is no evidence to support a finding that the videos are inaccurate or unfair in their representation of the facts.
[ 21 ] The defendant’s position is that the contents of the surveillance are directly relevant to the plaintiff’s claim for damages in particular when considered in light of (a) the allegations made by the plaintiff in the statement of claim as to her limitations, and (b) the evidence of the plaintiff at trial as to the extent to which her level of function is impacted by reason of her psychological symptoms.
[ 22 ] The defendant’s position is that the plaintiff is not prejudiced by the timing of the disclosure of the 2016 surveillance. By the date on which the motion was argued, the report and video had been in the plaintiff’s possession for three weeks. The defendant submits that the three-week period was sufficient to address the prejudice, if any, by reason of the delay from the summer of 2016 to January 2017 in the disclosure and production of the 2016 surveillance evidence.
b) The Plaintiff
[ 23 ] The plaintiff’s position is that the surveillance evidence does not satisfy the three-part test. The plaintiff submits that the investigator was not a credible witness by reason of:
a) His contradictory evidence with respect to time stamps on the video; b) His unsatisfactory answers with respect to draft notes made while surveillance was being undertaken and to footage deleted from the video; c) Commentary made by him in the surveillance reports; and d) Bias on his part when filming.
[ 24 ] The plaintiff submits that not only do those factors impact the credibility of the investigator, they also serve to highlight that the video is neither accurate nor representative of the facts.
[ 25 ] It is also the plaintiff’s position that the evidence given by the investigator supports a finding that the manner in which the support staff in the investigator’s office carries out their work is such that the videos are not reliable. The support staff is responsible for identification of ‘stills’ (which appear as would a photograph) included in the surveillance reports and for editing the surveillance footage.
[ 26 ] The plaintiff submits that the surveillance evidence obtained has no probative value at this stage of the trial. The plaintiff’s position is that there is nothing in the footage of the plaintiff that is contrary to the evidence to this point in the trial – from the plaintiff or from the plaintiff’s expert and treating psychiatrist, Dr. Roy.
[ 27 ] The lack of probative value is, in the plaintiff’s submission, to be assessed against the “huge” prejudice to the plaintiff if the surveillance evidence is presented to the jury. The plaintiff emphasizes that the primary injury which she alleges she suffered is that of post-traumatic stress disorder – a disorder which the expert witness called on her behalf described to the jury as an “invisible” condition. As a result, footage of the plaintiff as she goes about her various daily and other activities without any manifestation of the symptoms of post-traumatic stress disorder will be prejudicial.
[ 28 ] The plaintiff highlights that the surveillance evidence has not been reviewed by any of the expert witnesses from whom the jury will hear evidence – including the expert retained on behalf of the defendant to conduct a defence medical examination. It is submitted that in the absence of expert opinion evidence as to the significance of any of the activities shown on the video footage, it would be entirely improper for submissions to be made during closing argument on behalf of the defendant with respect to the video footage and the significance of it to the plaintiff’s claim.
Analysis
a) Test for Admissibility of Surveillance Evidence
[ 29 ] The investigator who carried out the surveillance and authored the surveillance reports was called to give evidence on the voir dire in this matter. His testimony took a full day, with cross-examination occupying approximately two-thirds of the day.
[ 30 ] The investigator is a licensed investigator who began working in this field on a part-time basis in 2009 and on a full-time basis in 2012. The investigator had approximately three and four years of full-time experience, respectively, when conducting the surveillance in 2015 and 2016. Prior to the voir dire, the investigator had never testified in court.
[ 31 ] During the investigator’s evidence, the edited and unedited versions of the surveillance videos were played. The videos were not viewed from start to finish at regular speed nor were all of the videos viewed in their entirety.
[ 32 ] The application of the three-part test is part of the trial judge’s function as a ‘gatekeeper’. The three-part test was recently described by the Ontario Court of Appeal as follows:
[T]he trial judge must be satisfied that the video is a fair and accurate depiction. This has to do with technical details, such as distortion and image speed. The relevant information can be led through the evidence of the videographers during the voir dire, whom the defence should make available if necessary. Where only an excerpt of the surveillance is tendered, the trial judge must also be satisfied that is fair, accurate and representative of the events that it purports to depict. [3]
i. Accuracy in truly representing the facts
[ 33 ] Based on the testimony of the investigator, the contents of the surveillance reports, and the contents of the edited and unedited videos, I find that there are a number of concerns with respect to the manner in which the surveillance was conducted, reported, and depicted. My concerns and the bases for them are as follows.
[ 34 ] First, the investigator did not provide a satisfactory explanation as to how time-stamping of the videos was managed. The investigator’s evidence was originally an unequivocal statement that time-stamps “always” appear on the videos. When presented in cross-examination with segments of the edited and unedited videos that lacked time-stamps, the investigator was unable to provide a definitive explanation for (a) the absence entirely of a time-stamp on either version or (b) a change from the existence to the absence (or vice versa) of a time-stamp from one version of the video to the other.
[ 35 ] Second, in the concluding portion of each of the surveillance reports, there is a section titled “Video Review”. The investigator described that portion of the report as being part of a “template”. The section reads as follows:
During the course of our observations, we obtained approximately 1 hour and 1 minute of video footage in order to document the subject’s activities. The original unedited footage will be catalogued and stored in the Xpera investigations video library under video identification number M-31-1355 and M-31-1356. For your convenience, we have provided you with an edited copy on DVD, which has been edited to exclude any extraneous footage which does not depict the subject.
[ 36 ] The duration of the video footage and the identification numbers for the unedited versions of the footage change from report to report. Otherwise, the wording of the Video Review section of each of the reports is the same.
[ 37 ] When presented, under cross-examination, with a direct comparison of the unedited and edited version of the videos, the investigator admitted that the deleted footage was not limited to “extraneous footage which does not depict the subject.” The investigator admitted that some of the deleted footage included segments in which the plaintiff appeared. He also acknowledged that some of the editing included changing the frame so as to enhance the view of the plaintiff, but with the end result that the time stamp no longer appeared on the segment of the video footage.
[ 38 ] The investigator also gave evidence that footage is deleted if someone other than the intended subject is in the video. The investigator testified that this form of editing is done in an effort to address the privacy of ‘third parties’. I note, however, that in a number of sections of the video footage individuals other than the plaintiff were readily apparent. For example, the plaintiff’s partner was identified, as was a yoga teacher with whom the plaintiff is affiliated. Some of the footage also displays third parties, who have no connection to these proceedings, at an event depicted in the September 15, 2015 footage. There was in my view, no effort made to in any way mask the identity of these individuals – they are clearly in view and identifiable.
[ 39 ] Third, the investigator’s evidence was that once he completes the surveillance, the video footage is reviewed by support staff who (a) identify from the footage ‘stills’ to be included in the body of the surveillance report and (b) edit the video footage.
[ 40 ] With respect to the stills, the investigator testified that the support staff look for stills that “most describe” the inconsistency or inconsistencies thought to be identified as between the subject’s alleged limitations and the activities depicted in the footage.
[ 41 ] The investigator testified that he does not know what editing is done to his video footage. It was also his evidence that he does not review the edited version of the video before he signs his report. The investigator’s evidence in that regard was given against the backdrop of his acknowledgement that the support staff who select the ‘stills’ (a) know to search for stills that demonstrate the intended subject doing something inconsistent with the injuries described and (b) are the same individuals who conduct the editing of the video.
[ 42 ] Fourth, although a number of hours of footage of the plaintiff was obtained during the three rounds of surveillance, much of the footage is filled with ‘gaps’ − periods during which the surveillance was interrupted for any number of reasons. Some of the gaps are a number of seconds only. Other gaps are lengthier – two minutes or more. Some of the larger gaps can be explained by a change in location or the plaintiff entering a building and remaining out of sight for some period of time.
[ 43 ] An example of footage with frequent gaps of less than two minutes each in duration is the footage taken of the plaintiff on May 20, 2016, as she walked along Bank Street in The Glebe and Lansdowne areas. The video covers a total time of approximately 40 minutes, but has been edited to 12 minutes.
[ 44 ] There 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. For example, on May 22, 2015 a total of 91 minutes of footage was taken. That footage has been edited down to 37 minutes (with 54 minutes of footage deleted). The September 15, 2015 footage totalling 2 hours and 40 minutes has been edited to 40 minutes (with 1 hour of footage deleted). Footage obtained on other days has been edited to a lesser degree.
[ 45 ] The investigator’s explanation for the gaps is understandable. He is alone in his vehicle and is required to drive his vehicle so as to keep the subject in view; he is not always able to keep the camera running while he drives. He is also sometimes required to change position within his vehicle so as to keep the subject in sight.
[ 46 ] Although the explanation for the gaps is understandable, the end result in the circumstances of this case is incomplete footage which does not accurately depict the plaintiff’s activities. Even if the video footage was guaranteed to be fully time-stamped, which it is not, the footage does not accurately or fairly represent the plaintiff’s activities.
[ 47 ] Each of the concerns on its own may not be sufficient to preclude the surveillance from satisfying the first criterion of the three-part test. However, the cumulative effect of the concerns is such that I find that the first criterion of the three-part test is not met. The video footage, both edited and unedited, is not accurate in truly representing the facts.
ii. Fairness and intention to mislead
[ 48 ] The descriptions in the surveillance reports of the activities and events that occur on the related video appear, on the face of the descriptions, to be objective. However, when the descriptions are compared with the contents of the videos, it is clear that a number of the descriptions are subjective. The subjective descriptions are at times inaccurate as to substantive content and/or time of occurrence.
[ 49 ] The most striking example of the investigator’s subjective descriptions of the plaintiff’s activities is that from an event on September 15, 2015 at the Old Ottawa South Community Centre. I find that the descriptions of the plaintiff’s activities on that occasion are more than inaccurate; they amount to an exaggeration of the plaintiff’s activities and of the events occurring around her.
[ 50 ] For example, the investigator describes the plaintiff as autographing and selling a book. The footage from the relevant time of day does not show plaintiff involved in either of those activities. In addition, the investigator describes 100 people “congregating” around the plaintiff at one point. The relevant footage depicts far, far fewer people in the vicinity of the plaintiff.
[ 51 ] The plaintiff submits that the subjective descriptions, when considered with other elements of the investigator’s evidence and work (the latter including the ‘gaps’ in the video footage), are sufficient to support a finding of an intention on the part of the investigator to mislead.
[ 52 ] The investigator’s evidence was that some of the subjective descriptions were based not only on the contents of the video footage but on his memory of events from his personal observations of them. 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.
[ 53 ] Equally as concerning is that the subjective descriptions included in the reports are not identified as such. A number the investigator’s personal observations are included in what is said to be a summary of the particular segment of the video footage.
[ 54 ] The evidence of the investigator as to his personal observations of the plaintiff is substantive evidence independent of the contents of the video. [4] To the extent that any personal observations are made by an investigator conducting surveillance of a plaintiff are included in a surveillance report, those observations must be specifically identified for what they are.
[ 55 ] As noted above, there are gaps in much of the video evidence. The investigator’s evidence was that many of the gaps are the result of having only one individual in the surveillance vehicle. If there were a driver and a videographer, some of the gaps would be eliminated.
[ 56 ] There is no evidence before me as to the industry standards, if any, that exist with respect to how surveillance is conducted. For example, is it standard practice for investigation companies to have two people work together when conducting surveillance? Was the reliance in this case on one individual a matter of cost-effectiveness? Was the decision to rely on a single investigator made by the investigation company, the investigator, or the client?
[ 57 ] I find that the investigator misunderstood his role in reporting on surveillance and was, at a minimum, overzealous in his reporting. However, I do not find that there was an intention on his part to mislead.
[ 58 ] Nonetheless, the concerns described in paragraphs 49 to 56 above, are relevant to the accuracy of the video in truly representing the facts. Those concerns contribute to my finding that the surveillance evidence in this case does not meet the first criterion of the three-part test.
[ 59 ] The plaintiff requests that I make a finding of bias in the compilation of the edited version of the video. In support of that request, the plaintiff relies on the investigator’s admission with respect to the purpose of the support staff in the selection of stills – to find evidence which “most describes” inconsistencies between the plaintiff’s claims and the activities depicted in the footage.
[ 60 ] The plaintiff asks that I draw an inference that the purpose of the support staff is the same when they edit the footage and, as a result, the editing is biased. The evidence of the investigator was that he does not know how the editing of the video is done. In the absence of any evidence from support staff as to how they carried out the task of editing, I am not prepared to draw the inference requested by the plaintiff.
iii. Verification on oath by a person capable to do so
[ 61 ] The investigator was capable of verifying that he had conducted the surveillance and of identifying the plaintiff as the subject of the footage. He was not, however, capable of verifying what was involved in the editing process. The investigator did not see the edited footage before it was produced.
[ 62 ] Given the manner in which the video footage was edited in this case and in the absence of evidence from the individual(s) who edited the footage, I find that the third criterion of the three-part test is not met.
b) Probative value versus prejudice to the Plaintiff
[ 63 ] Having found that the surveillance evidence does not satisfy the three-part test, it is not necessary to weigh the probative value of the evidence against the potential prejudice to the plaintiff if the surveillance were to be admitted. However, even if I had found that the surveillance met the three-part test, I find that it has minimal probative value and is therefore inadmissible.
[ 64 ] For surveillance evidence 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.” [5]
[ 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.
[ 66 ] The defendant, for example, submits that the plaintiff’s evidence to date is that she has constant back pain which has not remitted since the accident. The plaintiff has not given any evidence to the effect that by reason of her back pain she is unable to do any of the activities seen in the video footage. Those activities include walking, sitting, standing, yoga, driving, and bending over to pick something up off the ground.
[ 67 ] The defendant emphasized the footage of the plaintiff walking in The Glebe and in the Lansdowne area as being contradictory to the plaintiff’s evidence that she is easily startled, wary around traffic, and hyper-vigilant in traffic. The plaintiff’s evidence as I understand it with respect to traffic is in relation to driving. In the footage, the plaintiff is shown as a pedestrian. The plaintiff has not given evidence as to her level or lack of comfort as a pedestrian.
[ 6 8 ] It would not, in my view, be possible to determine whether there is anything in the video footage that might have caused the plaintiff or anyone else to be startled and in some way ‘measure’ the plaintiff’s response (or lack thereof) to such an event.
[ 69 ] In some of the footage the plaintiff is shown having lunch with a female and in other footage she is shown walking with a man who appears to be her yoga instructor. In my view, that footage is not contradictory to the plaintiff’s evidence that as a result of her psychological symptoms she has a decreased capacity to socialize.
[ 70 ] The defendant also submits that the video evidence is contradictory to the plaintiff’s evidence that she is unable to be employed. I disagree.
[ 71 ] The plaintiff continued to work part-time and earn income in 2015 and the first half of 2016. The activities depicted in the surveillance are not contradictory to the plaintiff’s evidence with respect to the extent to which she worked in those years. The activities do not in my view address the plaintiff’s ability to be gainfully employed.
[ 72 ] In summary, the surveillance has minimal, if any, probative value against which to measure the potential prejudice to the plaintiff.
[ 73 ] Addressing the issue of potential prejudice, the plaintiff requested that I take judicial notice of a stereotype which, she submits, persists in society − that “mental illness does not exist.” The plaintiff submits that the videos ‘play’ into that stereotype; given that one cannot see evidence of the plaintiff’s illness in the activities depicted in video footage, there is the potential for the jury to conclude, on the basis of that footage, that the plaintiff’s illness does not exist.
[ 74 ] I do not agree that such a stereotype, if it exists in this day and age (and I am not convinced that it does), is as pervasive as counsel suggests. I do not take judicial notice of the stereotype suggested by the plaintiff.
[ 75 ] More persuasive on the issue of prejudice is the plaintiff’s concern that none 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.
[ 76 ] I find that the potential prejudice to the plaintiff outweighs the minimal, if any, probative value of the surveillance evidence.
c) Leave Required for 2016 Surveillance
[ 77 ] Leaving aside my determination on the issue of admissibility of the surveillance generally, the defendant sought leave of the court to rely on the 2016 surveillance as substantive evidence. Leave is required because of the timing of the production of the surveillance report and related video. The report and video were produced after the action was set down for trial.
[ 78 ] In requesting leave, the defendant proceeded in accordance with my decision in Villeneuve v. Refill Pros Inc., 2015 ONSC 7815. At paragraph 20 of that decision, I set out my interpretation of rules 48.04(1) and (2)(b) of the Rules of Civil Procedure as follows:
I interpret subrules 48.04(1) and (2)(b) as:
a) Requiring the parties to an action to complete their documentary disclosure obligations, using all reasonable efforts, prior to the action being set down or listed for trial;
b) Not relieving any party from the obligation to disclose documents subsequently discovered; and
c) Requiring a party to seek leave of the court to rely at trial on a document discovered after the action has been set down for trial even if the party has complied with their rule 30.07 documentary disclosure obligations. Without this requirement:
i) There would be no impetus or motivation for a party who discovers a document after the action has been set down for trial to disclose the document in a timely manner; and
ii) The potential for ‘trial by ambush’ would continue to exist.
[ 79 ] The defendant submits that the plaintiff is not prejudiced by the timing of the production of the 2016 surveillance report and video because (a) they were produced two weeks prior to trial and (b) as of the date when the motion for leave was heard, the report and video had been in the plaintiff’s possession for three weeks. That three-week period is said by the defendant to be a sufficient amount of time for the plaintiff to address any prejudice which may have arisen by virtue of the production of the report and video.
[ 80 ] The defendant referred to the decision of the Court of Appeal in Landolfini v. Fargione (2006), in which surveillance disclosed on the third day of trial was found to be admissible for the purpose of impeachment. [7] The defendant also referred to the decision of this Court in Smith v. Morelly, 2011 ONSC 6834, in which surveillance disclosed two weeks prior to trial was found to be admissible for the purpose of impeachment. [8] Those cases were decided in 2006 and 2011 respectively – before the 2015 decision of the Court of Appeal in Iannarella v. Corbett, 2015 ONCA 110. In that decision, the Court of Appeal addressed the requirements with respect to disclosure and production of surveillance evidence.
[ 81 ] At paragraph 46 of the decision in Iannarella v. Corbett, 2015 ONCA 110, Lauwers J. said, “Given the interests of fairness and the objectives of efficiency and settlement, the court expects the parties to comply fully and rigorously with the disclosure and production obligations under the Rules of Civil Procedure.” In the matter before me, it was through inadvertence that the surveillance report and video from the summer of 2016 were not disclosed until two weeks prior to the date on which the trial was scheduled to commence. I equate that inadvertence to less than full and rigorous compliance with the disclosure and production obligations under the Rules of Civil Procedure.
[ 82 ] At paragraph 55 of his decision in Iannarella v. Corbett, 2015 ONCA 110, Lauwers J. concluded that “[t]he court should not reward non-compliance” with the disclosure obligations under the Rules of Civil Procedure.
[ 83 ] I find that it was not reasonable for the defendant to expect the plaintiff, in the two weeks prior to and during the first week of a multi-week trial, to be able to address the prejudice arising by reason of disclosure and production, on January 30, 2017, of the 2016 surveillance evidence of which the plaintiff had no prior knowledge.
[ 84 ] The trial record indicates that the pre-trial conference in this matter was conducted in September 2015. The trial date of February 2017 was set at a trial management conference held in December 2015 (i.e. 14 months prior to the commencement of this trial).
[ 85 ] It is understandable that the plaintiff did not request an adjournment of the trial so as to permit her to address the prejudice arising by reason of the timing of the disclosure and production of the 2016 surveillance evidence. The plaintiff’s response is, instead, to oppose the defendant’s motion for leave to admit the surveillance as substantive evidence.
[ 86 ] In all of the circumstances, I find that the defendant is not entitled to leave to rely on the surveillance conducted in 2016 as substantive evidence at trial.
Disposition
[ 87 ] The surveillance evidence does not meet the three-part test for admissibility generally. In any event (a) the surveillance evidence has minimal, if any, probative value and (b) the potential prejudice to the plaintiff of admitting the surveillance evidence outweighs the probative value of it. The defendant is not entitled to leave to rely on the 2016 surveillance evidence.
[ 88 ] I order as follows:
- The surveillance evidence in its entirety is inadmissible as substantive evidence at trial.
- The defendant’s motion for leave to rely on the 2016 surveillance video as substantive evidence is dismissed.
Released: March 2, 2017 Madam Justice Sylvia Corthorn