Wigmore et al. v. Myler

[Indexed as: Wigmore v. Myler]

Ontario Reports

Ontario Superior Court of Justice,

McKelvey J.

November 20, 2014

123 O.R. (3d) 446 | 2014 ONSC 6744

Case Summary

Civil procedure — Evidence — Defendant in personal injury action allowed to rely on surveillance video which was disclosed to plaintiff as substantive evidence at trial — Defendant breaching his undertaking to plaintiff by failing to advise him in timely manner of subsequent video surveillance — Defendant not intending to rely upon subsequent videos for any purpose at trial — Defendant's breach of undertaking not affecting admissibility of disclosed surveillance video.

The defendant in a personal injury action provided details at his examination for discovery of surveillance of the plaintiff which took place in December 2006, [page447] and undertook to inform the plaintiff of any subsequent surveillance. Further surveillance was conducted in October 2012, and a copy of the surveillance video was provided to the plaintiff. Additional surveillance was carried out in October 2013 and in June, July and September 2014, but details of the surveillance and the videos themselves were not produced to the plaintiff until November 2014, shortly before the trial. The plaintiff brought a motion to exclude all of the surveillance evidence, arguing that because the defendant did not produce all of the video surveillance until just before trial, she could not rely substantively on any of the video surveillance, including the October 2012 surveillance, which was produced well in advance.

Held, the motion should be granted in part.

The defence was entitled to rely on the October 2012 surveillance video both as substantive evidence and for impeachment purposes. Excluding that evidence might prevent the defendant from being able to try the case on its merits. The plaintiff would not be prejudiced by the failure to deliver the other surveillance videos in a timely manner. The defendant had undertaken not to rely upon that evidence either substantively or for the purpose of impeachment, and would not be permitted to do so. To the extent that the evidence was favourable to the plaintiff, the plaintiff would be entitled to rely on it at trial. Any prejudice to the plaintiff resulting from the lack of an opportunity to have the plaintiff's experts review the subsequent surveillance videos could be remedied by allowing the experts to provide any additional opinions by way of a supplemental report, or granting an adjournment of the trial.

Cases referred to

Cromb v. Bouwmeester, [2014] O.J. No. 4298, 2014 ONSC 5318 (S.C.J.); Landolfi v. Fargione (2006), 2006 9692 (ON CA), 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, 147 A.C.W.S. (3d) 400 (C.A.); Smith v. Morelly, [2011] O.J. No. 5270, 2011 ONSC 6834 (S.C.J.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.08(1), 30.09, 50.08(1), 53.08

MOTION to exclude surveillance evidence.

Timothy P. Boland and Darcy W. Romaine, for plaintiffs.

Francis G. Csathy and Rovena Hajdëri, for defendant.

McKELVEY J.: —

Introduction

[1] This case involves a claim for personal injury by the plaintiff Scott Wigmore ("Wigmore") arising out of a motor vehicle accident. The case was called for trial at the commencement of our November sittings. A jury was selected on November 17, 2014. The parties were called to commence the trial on November 19. At that time, the plaintiffs brought a motion to exclude surveillance evidence of Wigmore which had been taken by an investigator retained by the defence. [page448]

[2] No affidavit evidence was submitted by either party on the motion. However, both parties agreed on the factual background as follows:

(a) surveillance of Wigmore initially took place in December 2006; a video of approximately seven minutes was recorded at this time;

(b) examinations for discovery took place on January 13, 2011. At the discovery, details of the 2006 surveillance were provided, and an undertaking was given to advise if surveillance was conducted in the future. A copy of the video surveillance was not provided;

(c) further surveillance of Wigmore was conducted in October 2012. A video of approximately 48 minutes was recorded. A copy of this video was provided to the plaintiffs' solicitor on January 16, 2013. This video was subsequently reviewed by experts for both the defence and the plaintiffs;

(d) additional surveillance of Wigmore was carried out in October 2013. Two videos of the plaintiff were recorded. One was less than ten seconds and the other was approximately 14 minutes. Details of the surveillance and the video itself were not produced by the defendant to the plaintiffs until November 7, 2014; and

(e) in late June, July and September of 2014, subsequent surveillance of Wigmore was carried out. Video recordings were taken of Wigmore. One video was approximately five minutes in length. A second video was almost 18 minutes and a third video was approximately nine minutes. Details of this surveillance and the video recordings were not provided by the defendant to the plaintiffs until November 7, 2014.

[3] The issues before me on this motion are as follows:

(a) should the defendant be allowed to rely on any of the surveillance and videos as substantive evidence; and

(b) should the defendant be allowed to use the surveillance and videos for purpose of impeachment?

The Parties' Positions

[4] The plaintiffs' position is that the defendant should not be able to use the surveillance and video evidence as substantive evidence at trial. They argued that the defendant, having produced the video surveillance from October 2012, was obliged to [page449] produce all of the video surveillance in its possession; having failed to waive its privilege over the video surveillance 90 days before trial, as required by the Rules [of Civil Procedure, R.R.O. 1990, Reg. 194], the defendant was not entitled to rely on any of the video evidence for substantive purposes, including the video surveillance taken in October 2012, which had been delivered to the plaintiffs in January 2013. The plaintiffs agreed in argument, however, that all of the surveillance evidence could be used for purposes of impeachment. The plaintiffs submitted, in the circumstances, that this was a reasonable balance to ensure that the "truth" would emerge during the course of the trial.

[5] The defendant takes the position that the October 2012 surveillance should be admitted as substantive evidence. The defendant argues that this evidence is critical to their case as it shows the plaintiff engaged in activities which are alleged to be inconsistent with his anticipated evidence. Further, the defendant argues that the opinions of their medical experts on the significance of the October 2012 surveillance is a key component of their defence. Thus, the defendant requires that the details of the October surveillance be introduced as substantive evidence and not just for the purposes of impeachment. The defendant maintains that no prejudice will be occasioned to the plaintiffs by the introduction of this evidence as the plaintiffs' experts have had an opportunity to review and comment on this evidence.

[6] The defendant further agreed, in argument, that it would not rely on any of the other surveillance evidence apart from that taken in October 2012, and that it would proceed on the basis as if this evidence "never existed". It would be, however, available to the plaintiffs if they chose to rely on it. Finally, the defendant agreed that if the plaintiffs felt disadvantaged by the late delivery of the other defence surveillance, they would agree to an adjournment and were prepared to pay all of the plaintiffs' costs thrown away as a result of this adjournment.

Analysis

[7] As a starting point, it is apparent that the defendant is in clear breach of its undertaking given at examination for discovery to advise of the details of further surveillance. Further surveillance was conducted in October 2012. The defendant did advise about this surveillance by sending details and the video to the plaintiffs' solicitor in January 2013. However, no follow-up by the defendant was made with respect to the surveillance in October 2013, and the surveillance conducted in the summer of 2014 until just immediately prior to trial. The late delivery of this information is inconsistent with the defendant's obligations, [page450] in light of the questions posed at discovery to the defendant about the surveillance it had conducted.

[8] Rule 30.08(1) of the Rules of Civil Procedure provides that where a party fails to disclose a document in compliance with the Rules, an order of the court or an undertaking:

30.08(1) . . .

(a) if the document is favourable to the party's case, the party may not use the document at the trial, except with leave of the trial judge; or

(b) if the document is not favourable to the party's case, the court may make such order as is just.

[9] In considering whether leave should be granted under rule 30.08(1), rule 53.08 provides that if evidence is admissible only with leave of the trial judge under the provisions listed in subrule (2), "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". Subrule (2) provides that this provision applies to rule 30.08(1).

[10] In addition, rule 30.09 provides as follows:

30.09 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.

[11] The test for leave under this Rule is also governed by rule 50.08(1).

[12] While the defendant was entitled in this case to claim privilege for the videos which were taken of Wigmore's activities, the provisions of this Rule mean that, in principle, unless privilege was waived and the video surveillance provided to the plaintiffs at least 90 days before trial, they cannot be used as substantive evidence at trial, but only for the purpose of impeachment.

[13] A recent decision of this court is particularly relevant to the defendant's obligations with respect to the disclosure of surveillance. The decision in Cromb v. Bouwmeester, [2014] O.J. No. 4298, 2014 ONSC 5318 (S.C.J.) was released on September 15, 2014. This decision dealt with the issue of whether a defendant's decision to produce surveillance reports and related DVDs resulted in an implied waiver of litigation privilege respecting later surveillance reports. In that case, the court found that the doctrine was applicable, and ordered that the defendants [page451] produce all of the surveillance reports and related DVDs that were currently in their possession.

[14] In its decision, the court suggests that the defendants in that case, having produced only some of the available surveillance, engaged in a type of "cherry picking" which created "a significant risk of the court not receiving a full and accurate picture of the plaintiff's true level of functioning". The court went on to state that consistency and fairness required that the defendants produce the later DVD and investigation report.

[15] The plaintiffs in this case argue that when the defendant produced only the October 2012 surveillance report and DVD, it was engaged in the same type of "cherry picking" as referred to in the Cromb decision, and that the plaintiffs were, therefore, prejudiced by failing to have all of the evidence made available to them. The plaintiffs therefore argue that, because the defendant did not produce all of the video surveillance until just before trial, it cannot rely substantively on any of the video surveillance, including the surveillance from October 2012, which was produced well in advance.

[16] The plaintiffs also rely upon the decision in this court of Smith v. Morelly, [2011] O.J. No. 5270, 2011 ONSC 6834 (S.C.J.). In this case, the defendant sought to admit some surveillance evidence as substantive evidence. The surveillance evidence was only delivered to the plaintiff's counsel approximately a week before trial. The court refused the defendant's request to use the surveillance evidence for substantive purposes. The court stated [at para. 28]:

I do not find that it is reasonable to allow the Defendant to use the videotape as substantive evidence in this case. I agree with the Plaintiff that the rules with respect to disclosure have been put in place for specific policy reasons. They are to be strictly adhered to.

[17] The court went on to find, however, the surveillance was admissible to impeach the testimony of the plaintiff. The plaintiff was offered the opportunity to adjourn the trial. If the trial was to be adjourned, the court held that there would be no further issue with respect to rule 30.09 and the surveillance evidence could then be used substantively.

[18] I have concluded that the defence should be entitled to rely on the October 2012 surveillance as substantive evidence on the terms that I will set out subsequently. The reasons for my conclusion in this regard are as follows:

(a) the surveillance evidence which the defendant wishes to rely upon substantively was, in fact, disclosed in January 2013, and both plaintiff and defence experts have had an [page452] opportunity to review and assess the significance of the evidence. It would not appear that the plaintiffs will be significantly prejudiced by an order allowing the defendant to rely on this evidence. The plaintiffs are not taken by surprise by this evidence and had a full opportunity to respond to it;

(b) the plaintiffs will not be prejudiced by the failure of the defendant to deliver the other surveillance in a timely manner. The defendant has undertaken not to rely upon this evidence either substantively or for purpose of impeachment. To the extent that this evidence is favourable to the plaintiff, the plaintiff will be entitled to rely on this evidence at trial. The plaintiffs argue that positive aspects from this surveillance have not been reviewed by their own experts. While this is true, I have concluded that this prejudice can be addressed by allowing the plaintiffs' experts to provide any additional opinions by way of a supplemental report and waiving the formal time limits under the Rules for delivery of these reports. Alternatively, I am prepared to allow the plaintiffs an adjournment of the trial, and should the plaintiffs elect this option the defendant will be responsible for all costs thrown away as a result;

(c) as noted in the Ontario Court of Appeal decision in Landolfi v. Fargione (2006), 2006 9692 (ON CA), 79 O.R. (3d) 767, [2006] O.J. No. 1226 (C.A.), the established test for admission of evidence at trial rests on relevancy. The court notes that prima facie relevant evidence is admissible, subject to a discretion to exclude where the probative value is outweighed by its prejudicial effect. This principle is reinforced by the provisions of rule 53.08, which provides that leave shall be granted, and with an adjournment if necessary, unless to do so would cause prejudice to the opposite party or cause undue delay in the conduct of the trial. The overall objective in a civil trial is to have a fair adjudication of the dispute on the merits subject to overall principles of fairness to both parties. In the present case, I have concluded that excluding the October 2012 surveillance evidence might well prevent the defendant from being able to try the case on its merits. I also conclude that the potential prejudice to the plaintiffs can be addressed through the imposition of appropriate terms. While I would hope that this decision will not result in an undue delay in the conduct of the trial, the balance, in my view, favours admission of the evidence; and

(d) while the defendant has clearly failed to comply with its obligations under the Rules, it is significant in my view that [page453] the decision of this court in Cromb was only released on September 15, 2014. This decision is quite significant in the context of this case, as it makes clear that the defendant may waive, by implication, all reports and surveillance by engaging in selective disclosure which would amount to "cherry picking" favourable evidence. Prior to release of that decision, it is reasonable to believe that there may have been some uncertainty in the minds of the defendant and its counsel with respect to their obligations if they intended to rely on the October 2012 surveillance.

Order

[19] My order allowing the defendant to use the October 2012 surveillance video for substantive and impeachment purposes is subject to the following terms:

(a) the defendant is not entitled to make use of any other surveillance evidence for substantive or impeachment purposes as undertaken during the course of argument. Further, as agreed, the plaintiffs are entitled to make use of any surveillance evidence as it deems appropriate. This would include having their medical experts testify with respect to the additional surveillance, provided that supplemental reports are provided as soon as reasonably practicable in advance of their giving evidence. The defendant shall be entitled to cross-examine on any other surveillance evidence relied upon by the plaintiffs, but shall not be entitled to refer to any other surveillance which is not introduced by the plaintiffs at trial;

(b) if the plaintiffs request an adjournment of the trial, this will be granted and the defendant will be ordered to pay the plaintiffs' costs thrown away; and

(c) if the plaintiffs require a short indulgence with respect to the commencement of trial in light of this decision, such indulgence will be granted.

Motion granted in part.

End of Document