Court File and Parties
COURT FILE NO.: CV-10-49592
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Deborah Adams
Plaintiff
– and –
Howard Taylor
Defendant
Andrew D. Elias, for the Plaintiff
Thomas C. Barber, for the Defendant
Delivered orally: November 21, 2013
RULING ON VOIR DIRE Re: SurveilLance Videos
justice Patrick smith
RULING ON VOIR DIRE Re: SurveilLance Videos
[1] The plaintiff, Deborah Adams, was involved in a motor vehicle accident on Highway 417 near the city of Ottawa on April 5, 2009. Liability for the accident was admitted by the defendant Howard Taylor.
[2] The plaintiff was a passenger in the Taylor vehicle which was involved in the collision with a vehicle driven by Glenn Wehner. The accident can be described as a brushing of the left side of the Adams vehicle up against the right side of the Wehner vehicle as both vehicles were heading in an eastward direction on Highway 417. It is admitted that the Adams vehicle swerved to the left when an unidentified third party merged onto Highway 417, startling Mr. Taylor who was the driver of the Adams vehicle.
[3] Ms. Adams claims that as a result of the accident she suffers a wide variety of injures including burning pain in her neck, shoulders, lower, middle and upper back, with referred pain into her arms, buttocks and legs. Her testimony is that as a result of her injuries she encounters:
• difficulty maintaining prolonged positions;
• difficulty with repetitive tasks, including bending, reaching and lifting;
• difficulty with extended periods of standing, sitting and walking; and
• difficulty with bathing, self-care and housekeeping.
Her family physician, Dr. Gayle Garber, has testified that her pain is now classified as chronic pain for which she has prescribed a variety of medication with limited success.
[4] State Farm Insurance retained a firm of private investigators who conducted video surveillance on the plaintiff when she was in Newfoundland. The surveillance shows Ms. Adams performing a number of tasks including: driving her car, walking, shopping, bending, reaching, walking her dog, and interacting with other individuals.
[5] A voir dire was held to determine the admissibility of the surveillance videotapes.
[6] Counsel for State Farm maintains that the plaintiff’s evidence at trial and medical records are inconsistent with the activities that are depicted on the videotaped surveillance.
[7] The issue is whether the surveillance evidence is admissible for the limited purpose of impeaching the testimony of the plaintiff.
[8] The applicable law with respect to this issue is contained in rule 30.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which states as follows:
Where a party has claimed privilege in respect of a document and does not abandon the claim by giving notice in writing and providing a copy of the document or producing it for inspection at least 90 days before the commencement of the trial, the party may not use the document at the trial, except to impeach the testimony of a witness or with leave of the trial judge.
[9] The Ontario Court of Appeal in the case of Landolfi v. Fargione, 2006 9692 (ON CA), 79 O.R. (3d) 767, [2006] OJ No. 1226, at para. 49, set out the test for the admission of evidence tendered solely for impeachment purposes pursuant to rule 30.09:
Under this test, where evidence is tendered for impeachment purposes (as in this case) the admission of the evidence requires a showing of relevance to the credibility of a witness on a material matter and a further demonstration that the potential value of the proffered evidence to assist in assessing credibility outweighs the potential prejudicial effect of the evidence.
[10] Evidence if relevant is admissible “subject to a discretion to exclude where the probative value is outweighed by its prejudicial effect.” (Ferenczy v. MCI Medical Clinics (2004), 2004 12555 (ON SC), 70 O.R. (3d) 277 at para.18)
[11] Relevancy relates to the tendency of evidence to make the existence or non-existence of any fact that is material to the determination of an issue more probable or less probable than it would be without the evidence.
[12] Where evidence is tendered for impeachment purposes, the admission of the evidence requires a showing of relevance to the credibility of a witness on a material matter and a further demonstration that its potential value to assist in assessing credibility outweighs any potential prejudicial effect.
[13] In the case of Machado v. Berlet et al., 1986 2600 (ON SC), 57 O.R. (2d) 207, at para. 8, Justice Ewaschuk discussed the meaning of the term ‘impeach’ for the purposes of rule 30.09:
“Impeach” in the sense it is used in rule 30.09 means to call into question the veracity of evidence given by a witness by calling evidence to contradict, challenge or impugn the witness’ prior testimony.
[14] The probative value of the surveillance videotape must be capable of contradicting, challenging or impugning the testimony of Ms. Adams with respect to the injuries that she alleges were suffered as a result of the automobile accident on April 5, 2009.
[15] The videotape evidence consists of surveillance of the plaintiff on the following dates: June 29, October 15 and 16, 2012 and September 4 (two videos), and September 6, 2013.
[16] The video evidence is relevant to Ms. Adams’ credibility in that it could undermine her testimony regarding her limitations. As in the Landolfi case, the probative value of these videos while not high, is also not “trifling”.
[17] With respect to the prejudicial value that admission of this evidence will have, in my view their probative value outweighs any prejudice. Ms. Adams will have ample opportunity to explain her actions on the videos and to call whatever evidence she wants to explain her actions. The potential prejudice from the admission of the video surveillance evidence primarily concerns the danger that the jury could use the videos as direct evidence of Ms. Adams’ physical capacities rather than as evidence in assisting them in assessing her credibility as to her physical capacities. As indicated in Landolfi v. Fargione, at para. 60, this risk also exists whenever evidence is proffered for impeachment purposes.
[18] During the course of my charge to the jury I will provide an instruction that the videos cannot be used as substantive evidence of Ms. Adams’ physical capabilities but can only be used to impeach her credibility.
[19] I will leave it to the jury to determine what weight, if any, should be attached to the video surveillance.
[20] In conclusion, the videotape surveillance evidence is admissible for the limited purpose of impeaching the credibility of the plaintiff Deborah Adams.
Justice Patrick Smith
Released: December 20, 2013
COURT FILE NO.: CV-10-49592
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Deborah Adams
Plaintiff
– and –
Howard Taylor
Defendant
RULING ON VOIR DIRE
Justice Patrick Smith
Released: December 20, 2013