Court File and Parties

COURT FILE NO.: 4522/11 DATE: 2018/10/22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LOUDIA ISMAIL, Plaintiff AND: MEAGHEN FLEMING and LAURIE FLEMING, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Karl Arvai and Louis Crowley, for the Plaintiff Brian Foster and Catherine A. McIntosh, for the Defendants

HEARD: October 2-3, 2018

Endorsement

Plaintiff’s objection concerning admissibility of defence surveillance as substantive evidence

Introduction

[1] By way of overview and general context underlying this endorsement, the plaintiff in this personal injury action claims substantial damages under various headings, from the defendants, as the result of a 2009 motor vehicle accident in respect of which liability has been admitted.

[2] The matter currently is the subject of an ongoing civil jury trial, which commenced with jury selection on October 1, 2018.

[3] However, immediately following their selection, members of the jury were excused until October 3, 2018, and then to October 4, 2018, to allow for:

a. my hearing of an unrelated but pressing criminal matter, (scheduled for hearing on October 1, 2018, before I was asked on relatively short notice to preside over this civil jury trial); and

b. the hearing, on October 2 and 3, 2018, of five preliminary motions and objections raised by the parties at the outset of trial, requiring hearing and adjudication prior to counsel making their opening addresses to the jury and/or prior to the presentation of any evidence.

[4] Not wishing to delay return of the jury or progress of the trial any further, I communicated my substantive rulings in relation to each of the numerous preliminary motions and objections to counsel via email, in the early morning hours of October 4, 2018, “for reasons to follow”.

[5] In relation to the plaintiff’s objection to the defendants tendering video surveillance as substantive evidence during the course of the trial, I made the following ruling, for reasons to follow:

• The objection is dismissed, subject to the following qualifications:
  • This ruling is not intended to address the extent or manner in which the defendants’ video surveillance evidence may be used or not used for impeachment purposes.
  • This ruling is intended to address the plaintiffs’ broad objection to the defendants tendering of any surveillance video evidence for a substantive purpose.
  • This ruling is also 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 between the date of the accident and the date of trial; i.e., the general and non-specific confirmation sought by defence counsel prior to the making of an opening defence address to the jury.
  • This ruling is subject to the possibility of more specific rulings that:
    • may exclude particular portions of the defendants’ available surveillance, (including that relating to the plaintiff’s funeral attendance and cemetery visitation), based on more specific considerations of prejudicial impact outweighing probative value;
    • may exclude particular portions of the defendants’ available surveillance as irrelevant, (including that showing a female running or jogging), insofar as it is agreed or established by other evidence that the person or persons depicted therein do not include the plaintiff;
    • may exclude particular portions of the defendants’ available surveillance where lighting or other visibility conditions prevent any discernible observations of the plaintiff;
    • may restrict the sustained or “real time” presentation of static or unchanging situations; and
    • may impose specific directions on the manner in which the defendants’ surveillance video is presented to the jury, (including appropriate pauses to identify interruptions in date and/or time, and clarification through agreement or other evidence as to the significance, or lack thereof, of time and date indications included in the video recordings).

[6] This endorsement provides my promised reasons for that ruling.

Further background

[7] By way of further background to this particular ruling:

• During the course of this extended personal injury litigation, the defendants retained investigators to carry out repeated covert surveillance in relation to the plaintiff’s public movements and activities.
• In the result, there were approximately 10 periods of intermittent surveillance, during which the investigators spent a total of 262 hours and 5 minutes attempting to make observations of the plaintiff. Over the course of those efforts, the investigators compiled a total of 3 hours and 51 minutes of video recordings, portions of which were spread out over the following dates:
  • August 6 and 7, 2011;
  • November 3, 4 and 5, 2011;
  • December 15, 16 and 17, 2011;
  • April 19, 20 and 21, 2012;
  • December 7, 8 and 9, 2012;
  • November 29, 2014;
  • May 15 and June 14, 2015;
  • May 25, 26, 27, 28 and April 1, 2015;
  • June 4, 5 and 6, 2016; and
  • July 16, 19 and 21, 2018
• There was no dispute that all of the video recordings, (i.e., in addition to summaries of what the video recordings depicted and additional personal observations of the investigators), had been disclosed to plaintiff counsel in advance of trial. There nevertheless was a degree of dispute as to precisely when such disclosure had been made. In particular, plaintiff counsel asserted that the surveillance video from 2018 might not have been disclosed more than 90 days before trial, whereas defence counsel asserted that it had.
• During the hearing of preliminary motions and objections, I was advised that defence counsel contemplated use of the video recordings, during the course of the trial, for various reasons. In particular:
  • At the very least, defence counsel would seek to play the video recordings for the jury as substantive evidence, during presentation of the defendants’ case. It was said that the movements and activities depicted in the video recordings would support the defence position in this litigation; i.e., by presenting the jury with evidence demonstrating that the plaintiff did not suffer from a level of impairment or disability that merited the various damages sought by the plaintiff.
  • Beyond their suggested value as substantive evidence, it was contemplated that the video recordings would be used by defence counsel for what might best be described as “general” and “specific” impeachment purposes. In that regard:
    • It was submitted that, as the defendants effectively would be relying on such evidence to challenge the credibility of the plaintiff’s assertions of impairment and disability, merely tendering such evidence as part of presentation of the defendants’ case, without having given the plaintiff an opportunity to dispute or explain the significance of what was depicted in the video recordings while the plaintiff was in the witness box, would give rise to legitimate concern about possible violation of “the Rule in Browne v. Dunn. [1] Defence counsel therefore contemplated playing the surveillance video recordings for the plaintiff, (and therefore the jury as well), during cross-examination of the plaintiff.
    • It was submitted that, at the very least, defence counsel should be permitted to use the video recordings to highlight, if and as appropriate during cross-examination, suggested instances of more specific inconsistency between testimony of the plaintiff and what was depicted in video recordings.
• During the course of oral submissions, it became clear that plaintiff counsel opposed any use of the video recordings as substantive evidence, and any use of the video recordings for impeachment purposes that did not focus on specific testimony of the plaintiff said to be inconsistent with something depicted on equally specific segments of the video recordings. While plaintiff counsel did not dispute the ability of defence counsel to use the video recordings in the latter manner, it was said that the appropriateness of permitting such use, (or the more “general” impeachment use contemplated by defence counsel), inherently should and would have to be addressed after the plaintiff had testified. In the result, plaintiff counsel opposed any “advance” confirmation, from the court, that defence counsel definitely would be able to use such surveillance video during the course of the trial.
• However, during the course of further submissions, it became equally clear that, as far as the surveillance video was concerned, the only preliminary ruling sought by defence counsel on an urgent basis, prior to counsel embarking on their respective opening addresses to the jury, (leave having been granted for defence counsel to make an opening address immediately after the opening address by plaintiff counsel), was advance confirmation that the defendants would be permitted to use surveillance video in some manner, to some degree, at some point during the trial. That confirmation, it was said, would provide defence counsel with sufficient reassurance to inform the jury, during defence counsel’s opening address, generally and without mention of specifics, that the presentation of defence surveillance video was anticipated. In the circumstances, defence counsel eventually indicated that advance confirmation of defence counsel’s ability to employ surveillance video during cross-examination was not immediately required, and that a ruling on the defendants’ ability to present at least some of the surveillance video as substantive evidence, during presentation of the defendants’ case if not before, would suffice for the time being.
• In the result, it was agreed that, as far as the surveillance video was concerned, party submissions and my corresponding preliminary ruling would focus on the more narrow issue of the defendants’ ability to present at least some portion of the recordings as substantive evidence, (if not already presented to the jury during cross-examination of the plaintiff), and plaintiff counsel’s objection in that regard.

[8] Before making my substantive ruling noted above, in relation to the surveillance video, I reviewed all of the recordings in their entirety, and in “real time”, on the evening of October 2, 2018.

[9] I also considered the parties’ respective arguments in their entirety, and my attempt to summarize their positions should not suggest otherwise.

[10] In broad terms, however, the position of the plaintiff was as follows:

• It was suggested that not all of the surveillance video had been disclosed sufficiently in advance of trial to permit its introduction, (except for impeachment purposes), without the court granting leave pursuant to Rule 30.09 of the Rules of Civil Procedure.
• It was said that the surveillance video should be excluded, pursuant to the court’s residual discretion to exclude evidence in situations where its probative value would be outweighed by its potential prejudicial impact. In that regard:
  • It was said that the surveillance video had little probative value, insofar as it would do little more than confirm matters that the plaintiff would readily admit and acknowledge in her testimony; e.g., her occasional ability to drive, shop and make visits to health care professionals, hair appointments, church services, relatives, coffee shops, etc., on “good days” when reduced levels of chronic pain permitted such activity. In the circumstances, it was said that playing of the video recordings would add nothing of probative value, and that exclusion of the recordings, lasting several hours if played in their entirety, would be consistent with promoting and maintaining trial efficiency.
  • It was said that the probative value of the surveillance video also was compromised and negligible, in many instances, insofar as the recordings were unsteady and/or otherwise failed to clearly depict the plaintiff, owing to jostling of the camera, lighting conditions and/or obstructions.
  • It was said that the potential prejudicial impact of the surveillance video was significant, insofar as use of the recordings might very well create a confusing, distorted and/or misleading impression of the plaintiff’s true situation and abilities. For example, it was argued:
    • that certain portions of the video surveillance, (e.g., of a woman jogging), had mistaken another female for the plaintiff;
    • that playing each disk of video recordings non-stop would fail to note intermittent interruptions and time lapses, many of which were extended and significant;
    • that playing many hours of video back to back, and showing the plaintiff engaged in activities and outings, would focus selectively on atypical conduct of the plaintiff, while ignoring the reality, (to be presented and emphasized in the plaintiff’s testimony), that the plaintiff has spent the vast majority of her time since the accident suffering and unable to engage in her previously active lifestyle;
    • that such distortions would be reinforced by ignoring a reality that the recordings also 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; and
    • that presenting the jurors with such video recordings might incline the jurors to decide the case based on simple emotional reactions to what they saw, without proper record to the plaintiff’s testimony and the evidence of the plaintiff’s health care practitioners and litigation experts.

[11] In similarly broad terms, the position of the defendants was as follows:

• It was emphasized that, with the exception of surveillance video recordings made in 2018, all edited and unedited footage most certainly had been disclosed to plaintiff counsel in its entirety well before trial, and in most if not all cases more than 90 days before trial as required by Rule 30.09. The same could not be said of the 2018 recordings, which self-evidently were created less than 90 days before trial. However, defence counsel submitted that, if there was any dispute or uncertainty about any recordings being produced more than 90 days before trial, and in relation to the 2018 video recordings, the court in any event should grant formal leave, pursuant to Rule 30.09, so as to put the ability of the defendants to rely on such evidence beyond doubt. In that regard, it was emphasized that plaintiff counsel were fully cognizant of what was contained within all of the relevant video recordings many weeks if not months before commencement of this trial.
• It was said that video recordings of the plaintiff’s activities and outings had relevance and probative value, independent from its possible use to impeach the plaintiff. In particular, defence counsel argued that the video recordings would assist the jurors by providing them with real and objective presentations of things the plaintiff had been able to do since the accident, and the manner in which she did them, without such information effectively being transformed and limited by the inherently subjective accounts of witnesses, including the plaintiff herself. In short, it was emphasized that video evidence provides an objectivity and detail that oral evidence simply cannot provide.
• It was said that, with rare exception, the clarity or accuracy of what was depicted in the video surveillance generally could not be the subject of any reasonable dispute, and that any specific concerns in that regard could be addressed and resolved sufficiently by testimony from the plaintiff, (including testimony during cross-examination), and/or by the relevant investigators if necessary.
• More generally, it was said that possible concerns about the clarity, accuracy or comprehensive nature of such video recordings, and the precise significance of what was depicted in the video recordings, were considerations that went to matters of weight rather than admissibility, and that the weight to be given to relevant evidence properly was something for the jury to decide.
• Defence counsel disputed the suggestion that any of the surveillance evidence was “prejudicial” in the sense required to warrant exclusion; i.e., in the sense the evidence might cause the jurors to engage in prohibited reasoning, as opposed to evidence that might simply be detrimental to the plaintiff’s case.
• To the extent any portions of the surveillance evidence might raise concerns of true “prejudicial impact”, (e.g., by encouraging jurors to be influenced by emotion rather than reason), it was submitted that the court could and should address such concerns by directing the specific exclusion of certain portions of the recordings, while allowing the remainder to be presented. In that regard, defence counsel readily conceded, for example, that the female seen jogging in the video was not the plaintiff, and that video showing a grave visitation and prayers by the plaintiff and her mother voluntarily would be omitted from presentation to the jury, insofar as it was overly intrusive and likely to arouse juror emotions.

[12] With the above background and positions in mind, I turned to my assessment of the plaintiff’s particular objection concerning the ability of the defendants to play at least some portion of the surveillance video recordings for the jury as substantive evidence, to the extent they had not already been played during cross-examination of the plaintiff.

Analysis

[13] As noted above, I made a general ruling dismissing the plaintiff’s objection to the defendants’ tendering of surveillance as substantive evidence during the course of the trial. My reasons for doing so included the following:

• I found it unnecessary to decide between the competing and contradictory counsel assertions as to the precise dates on which the 2018 and earlier surveillance video had been disclosed to plaintiff counsel, as I was persuaded that the situation merited the granting of leave pursuant to Rule 30.09 in any event. As for recordings made prior to 2018, I was mindful of the reality that this matter had been called for trial many times before September of this year, and I find it difficult to believe that the defence counsel did not disclose earlier video recordings in the manner described by defence counsel. As for the video recordings from July of 2018:
  • The total length of the surveillance video from 2018 was quite modest in length; i.e., just 16 minutes and 35 seconds.
  • Plaintiff counsel admittedly had been in the possession of that video for many weeks, (if not longer), prior to the commencement of this trial.
  • In my view, plaintiff counsel accordingly had ample and sufficient opportunity to review and digest the significance, (if any), of that additional surveillance video prior to trial, alone and with the plaintiff.
  • The substantive content of the video surveillance also was not dissimilar to earlier surveillance video that already had been produced. For example, there were further scenes of the plaintiff driving and shopping at a number of grocery and/or department stores, occasionally pushing carts, briefly carrying or loading what seemed to be relatively light items, (with the possible exception of a watermelon), and returning to her residence.
  • In the circumstances, I did not think admission of the 2018 video surveillance presented any realistic or meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise by the admission of such evidence at trial – which in my view should be the guiding consideration when determining whether or not to grant leave pursuant to Rule 30.09.
• While I was provided with a good deal of authority by plaintiff counsel and defence counsel regarding the permissible uses of surveillance video at trial, much of it was expressly focused on the manner in which it might be used for impeachment purposes, and/or presented during cross-examination of a plaintiff. [2] For the reasons noted above, however, that was not the focus of the more specific ruling regarding surveillance video that I was asked to make at the outset of trial. Again, I was asked to focus simply on whether the defendants would be permitted, at the very least, to play at least some of their surveillance video as substantive evidence during presentation of their case if necessary; e.g., to the extent it had not already been played during cross-examination of the plaintiff. Much of the authority presented accordingly was of little relevance or assistance to addressing that separate and different question.
• General principles applicable to the ruling I was asked to make can be found in Landolfi v. Fargione, [2006] O.J. No. 1226 (C.A.), at paragraphs 48, 52 and 66, and include the following:
  • The established test for the admissibility of evidence at trial rests on relevancy. In both the criminal and civil context, prima facie relevant evidence is admissible, subject to a discretion to exclude where probative value is outweighed by its prejudicial effect.
  • There is no principled basis for video evidence to attract a different and more stringent test for admissibility at trial than that which applies to any other form of evidence.
  • The impact of video evidence admittedly can be powerful, but that is true of many forms of demonstrative evidence. The test for admission of such evidence remains the same.
  • Even when the probative value of video evidence is not high, but simply “not trifling”, it should be admitted unless its potential prejudicial effect somehow outweighs that more than “trifling” probative value.
• In my view, the surveillance video evidence the defendants wish to tender at trial, (if only as substantive evidence during presentation of the defendants’ case), has prima facie relevance to issues that lie at the heart of this trial; i.e., the condition and abilities or disabilities of the plaintiff, and the degree of impairment suffered by the plaintiff in her activities of daily living, in the wake of the underlying motor vehicle accident.
• In particular, the surveillance video in this case shows the plaintiff engaged in such activities as driving, (for short intervals as well as more extended highway travel), walking, standing and sitting for extended periods of time, (including extended sitting during visits to restaurants, waiting on her husband and/or sons on various occasions, and during long highway drives to other communities), rotating her neck, bending and looking down in a sustained fashion, pushing carts, and lifting, carrying and loading objects of various weights, and attending social visits and functions. All of this may be relevant to the defendants’ argument that the plaintiff’s level of impairment may not be as severe as she claims, and/or that the plaintiff is capable of maintaining some form of employment that accommodates her limitations.
• I agree that the probative value of such video evidence can be very significant, insofar as it provides an objectivity and detail that oral evidence cannot provide. If one cannot see something in person, the next best thing is usually a video. A picture is indeed worth a thousand words. [3]
• I also share the view expressed by Justice McKelvey, in Taylor v. Durkee, 2017 ONSC 7358, [2017] O.J. No. 6435 (S.C.J.), at paragraph 17, that such evidence has probative value that is not negated by a plaintiff acknowledging, or intending to acknowledge during his or her testimony, his or her ability to occasionally do activities depicted on such surveillance video. In particular: The fact that [a] plaintiff has given some evidence about [his or] her ability to do [such] activities on a good day does not mean that no other evidence may be introduced. There is a qualitative difference between [a] plaintiff’s oral evidence … and a video which actually shows [him or] her doing [such] activities. A party should not be limited at a trial in introducing relevant evidence going to the level of the plaintiff’s impairment [when that] is a critical issue in [the] case. It is appropriate in [a] trial for a jury to hear evidence on important issues from a variety of sources. Thus, it is common for a plaintiff in a personal injury action to introduce evidence from a plaintiff describing limitations on [his or] her activities as well as hearing evidence from other family and friends about their observations, as well as medical evidence based on an assessment by a qualified expert. 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. [4]
• It may be quite true that the surveillance video represents only a small fraction of the total time defence investigators spent trying to capture evidence of the plaintiff engaging in activity, and that the total time spent on surveillance efforts is itself dwarfed by the overall period of sustained suffering and impairment alleged by the plaintiff, in the wake of the underlying accident. However, those are points which may fairly be emphasized in testimony, cross-examination and/or argument, and in my view do not give rise to “prejudice”, in the sense required, to warrant exclusion of the surveillance video evidence. In that regard, I also share the views expressed by Justice McKelvey in Taylor v. Durkee, supra, at paragraph 18, which in my opinion generally have equal application to the case before me: I do not accept the plaintiff’s assertion that there is significant prejudice attached to the surveillance evidence. While our law recognizes the general power of a judge to exclude relevant and material evidence where its probative value is outweighed by the prejudice caused by its omission, prejudice in this context does not mean that the evidence will be detrimental to the other party’s position. Rather, prejudice in this context is related to the detrimental effect that the evidence may have on the fairness and the integrity of the proceedings. See R. v. Collins, [2001] O.J. No. 3894 (C.A.) at paragraph 10. In the present case, I do not see a basis to believe that the surveillance evidence will negatively impact the fairness and integrity of the trial. The plaintiff relies on the fact that the surveillance evidence captures only a small fraction of the plaintiff’s activities since the date of the accident. However, the jury will be aware of this limitation and I do intend to reference this in my charge. To exclude the evidence entirely because it represents only a small fraction of the plaintiff’s activities since the time of the accident would ultimately result in virtually all surveillance evidence being excluded for substantive purposes. When the jury can be adequately instructed about the limitations inherent in surveillance evidence, I do not see any basis to conclude that there is any significant prejudice to the plaintiff from the admission of this evidence. [5]
• None of this is to say that the defendants in this case should have “carte blanche” to introduce all of the surveillance video as substantive evidence, in whatever manner they chose. To the contrary, the surveillance video I reviewed gave rise to a number of potential concerns – albeit concerns I felt were capable of being addressed through more specific rulings and/or supportive contextual evidence and detail. In particular:
  • Subject to hearing further from counsel, my preliminary view, expressed during the course of oral submissions, was that certain portions of the surveillance video, because of what they depicted, might incline the jurors to be influenced by emotion and sentiment rather than reason. I cited in particular the investigators intrusively following the plaintiff and her mother to a cemetery, and taking extended video of a grave visitation, during which the plaintiff and her mother displayed obvious sadness and engaged in prayer. As I indicated to counsel, during the course of oral submissions, it seemed to me that the potential prejudicial impact of that particular segment of video on reasoning prejudice militated strongly in favour of its exclusion. Defence counsel agreed with that view.
  • It seemed to me that certain portions of the surveillance video did not make it clear whether a person depicted in a brief, obstructed or obscured fashion was indeed the plaintiff; a concern highlighted by defence counsel’s acknowledgment that, in at least one instance, (i.e., video recording of a jogging female), the investigators had mistaken another individual for the plaintiff. In specific instances, I felt that such concerns might warrant exclusion of particular segments of the video recording; e.g., insofar as it might be established that further mistakes may have been made in that regard. However, I also felt that such concerns might be adequately addressed by possible party agreement, or the presentation of video evidence through one or more witnesses, (such as the investigator or investigators who made the recordings), capable of providing sufficient confirmation as to the identity of persons depicted in the video recordings.
  • I had concerns, in terms of trial efficiency, about the need to play extended segments of the video, depicting completely static and unchanging situations, (e.g., the plaintiff sitting in a car, restaurant or office lobby for extended periods without getting up or moving significantly), in “real time”. In saying that, I recognize that conveying an accurate sense of the plaintiff’s ability to sit comfortably for extended periods might very well be one of the purposes for which such surveillance video is tendered. In my view, however, there are practical limits, from a trial efficiency perspective, on how long everyone in a courtroom should be expected to sit silently watching the same unchanging tableau, when all jurors obviously are capable of understanding the passage of time.
  • I had concerns about the possibly misleading impression that might be created if the disks to which the surveillance video had been reduced were allowed to be played in a “non-stop” fashion, without interruption and comment that made it clear the videos were a compilation of segments of time; segments that, in real life, actually had been interrupted by intervals of various durations. Moreover, although the video recordings had time and date indicators imprinted in the lower right hand corner of the screen, those indications were not always consistent or reliable, as footage was taken with different cameras, and/or time and date counters apparently may have reset after the insertion of new video cartridges into cameras. However, it also seemed to me that such concerns could be addressed by the video recordings being intermittently paused to expressly note and highlight such interruptions and timing concerns.

[14] In the result, while I made a general ruling sufficient to address the immediate concern of counsel, (i.e., as to whether the defendants would be able to present at least some portion of the surveillance video as substantive evidence during presentation of their case, if not before), I also thought it advisable to make further comments making it absolutely clear that my ruling was not meant to address and resolve lingering and further issues concerning such matters as:

• the ability of defence counsel to employ the surveillance video during cross-examination of the plaintiff;
• issues and concerns about specific portions of the surveillance video, which might justify more precise exclusions or preconditions in relation to admissibility; and
• the precise manner in which video recordings would be presented to the jury.

Conclusion

[15] For such reasons, I decided to make the substantive ruling set forth above.

“Justice I. F. Leach” Justice I.F. Leach Date: October 22, 2018

Footnotes

[1] See Browne v. Dunn (1894), 6 R. (H.L.), at 70. Many authoritative decisions, including much more recent decisions of our Court of Appeal, have confirmed that “the rule in Browne v. Dunn” was incorporated into and remains part of the fundamental law governing trial practice in Ontario. See, for example: R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont.C.A.), at p.376; R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.), at paragraph 18; and R. v. McNeil (2000), 48 O.R. (3d) 212 (C.A.), at paragraphs 44-48.

[2] See, for example: Lis v. Lombard Insurance Company, [2006] O.J. No. 2578 (S.C.J.); Nemchin v. Green, 2017 ONSC 1321, [2017] O.J. No. 1444 (S.C.J.); Hadzic v. Croxford, an unreported but transcribed voir dire decision of Justice Garson rendered on March 28, 2017; and Hutchings v. McCabe, an apparently unreported decision of Justice Sloan, whose endorsement was released on September 11, 2017.

[3] See Rodger v. Strop, [1992] O.J. No. 2769 (S.C.J.), at paragraph 12.

[4] Again, see Taylor v. Durkee, supra, at paragraph 17.

[5] Again, see Taylor v. Durkee, supra, at paragraph 18.