Bishop-Gittens v. Lim

Ontario Reports

Ontario Superior Court of Justice,

McKelvey J.

June 2, 2015

127 O.R. (3d) 74 | 2015 ONSC 3553

Case Summary

Civil procedure — Discovery — Production of documents — Defendant delivering affidavit of documents which contained no reference to surveillance of plaintiff and stating on examination for discovery that no surveillance had taken place — Defendant subsequently conducting surveillance of plaintiff on three occasions — Defendant breaching rules 31.09(1) (b) and 30.07 of the Rules of Civil Procedure by failing to notify plaintiff about surveillance for over two years and failing to deliver updated affidavit of documents — Prejudicial effect of surveillance evidence not outweighing its probative value — Defendant granted leave to use surveillance evidence at trial for impeachment purposes only — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.07, 31.09(1)(b).

The defendant in a personal injury action served an affidavit of documents in 2012 which made no reference to surveillance of the plaintiff, as none had been conducted by that time. At the examination for discovery of the defendant, the plaintiff was advised that no surveillance had taken place. The defendant subsequently conducted surveillance of the plaintiff on three occasions. No updated affidavit of documents was served prior to trial, and no disclosure of the surveillance was made until May 2015, when a letter was delivered to plaintiff's counsel which set out particulars of the surveillance but did not include a copy of the surveillance video. Prior to opening submissions at trial, the plaintiff brought a motion to exclude the surveillance evidence.

Held, the motion should be dismissed.

The defendant breached rule 31.09(1) (b) of the Rules of Civil Procedure by failing to notify the plaintiff about the surveillance for more than two years. The defendant also breached rule 30.07 by failing to deliver updated affidavits of documents as the surveillance reports were received. As a result, the defendant required leave of the trial judge to introduce the surveillance evidence. Leave was granted, as the prejudicial effect of the evidence did not outweigh its probative value. The exclusion of the evidence might prevent the defendant from being able to try the case on its merits. The potential prejudice to the plaintiff could be addressed through the imposition of appropriate terms. The defendant was permitted to use the surveillance evidence for impeachment purposes only.

Iannarella v. Corbett (2015), 124 O.R. (3d) 523, [2015] O.J. No. 726, 2015 ONCA 110, 331 O.A.C. 21, 65 C.P.C. (7th) 139, 75 M.V.R. (6th) 185, 249 A.C.W.S. (3d) 922, apld [page75 ]

Other cases referred to

Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97, [2000] O.J. No. 4428, 138 O.A.C. 201, 43 C.P.C. (5th) 65, 101 A.C.W.S. (3d) 634 (C.A.); Smith v. Morelly, [2011] O.J. No. 5270, 2011 ONSC 6834 (S.C.J.); Wigmore v. Myler (2014), 123 O.R. (3d) 446, [2014] O.J. No. 5532, 2014 ONSC 6744 (S.C.J.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.07, (a), (b), 30.08, (1), 31.09, (1), (b), (3), 53.08

MOTION to exclude surveillance evidence at trial.

Erin M. Neal, for plaintiff.

Talar Beylerian, for defendant.

MCKELVEY J.: —

Introduction

[1] In February 2015, the Court of Appeal released its decision in Iannarella v. Corbett (2015), 124 O.R. (3d) 523, [2015] O.J. No. 726, 2015 ONCA 110, which provided a comprehensive review of defence disclosure obligations for surveillance in a personal injury action. The issue of disclosure for surveillance evidence has been raised in this case as well, which involves a personal injury claim by the plaintiff, Marlene Bishop-Gittens, arising out of a motor-vehicle accident. The case was called for trial at the commencement of our May 2015 sittings. A jury was selected on May 19, 2015. Prior to opening submissions, the plaintiff brought a motion to exclude surveillance evidence of the plaintiff, which had been taken by an investigator retained by the defence.

[2] I delivered an oral decision at the conclusion of argument on this motion and advised that written reasons would follow. These are those written reasons.

Background

[3] There is no dispute about the background facts. They were contained in an agreed statement of facts submitted by the parties or agreed to orally during the course of argument. The relevant factual background is as follows:

(a) Examinations for discovery in this action were held on September 25, 2012. At that time, a sworn affidavit of documents was served by the defence. There was no reference to any surveillance in the affidavit of documents, as none had been conducted by the defence at that time. [page76 ]

(b) At the examination for discovery of the defendant, the plaintiff inquired about any surveillance which had been conducted of the plaintiff. They were advised that no surveillance had taken place.

(c) Surveillance was conducted of the plaintiff on October 31, November 14 and 15, 2012.

(d) Further surveillance of the plaintiff was performed on August 20, 22 and 30, 2014.

(e) Further surveillance was conducted of the plaintiff on December 26, 2014.

(f) No revised affidavit of documents was served by the defence prior to trial.

(g) No disclosure of the surveillance was given by the defence until a letter was delivered to plaintiff's counsel on May 8, 2015, which set out particulars of all of the surveillance, but did not include a copy of the video surveillance in the possession of the defence.

[4] The issue before me on this motion is whether the defendant should be allowed to rely on the surveillance and video evidence for purposes of impeachment of the plaintiff's evidence at trial. The defence is not seeking to rely on the surveillance as substantive evidence.

The Parties' Position

[5] The plaintiff's position is that the defence should not be able to use the surveillance and video evidence of the plaintiff. They argue that the defence has failed to comply with its obligations under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules") to serve an updated affidavit of documents disclosing the evidence and to provide details of the surveillance within a reasonable time. Their position is that the evidence should therefore be excluded at trial.

[6] The defence argues that this case can be distinguished from the Court of Appeal decision in Iannarella because there has been full disclosure of the surveillance prior to trial. They argue that the failure to deliver an updated affidavit of documents is a technical irregularity only, as full particulars of surveillance were, in fact, provided in advance of the trial. The defence submits that they should be entitled to rely upon the surveillance for purposes of impeachment at trial. [page77 ]

Analysis

[7] I have concluded that the defendant is in clear breach of its obligations under the Rules. There are two separate issues which require consideration in this regard.

[8] First, rule 31.09(1)(b) provides that where a party has been examined for discovery and the party subsequently discovers that the answer to a question on the examination is no longer correct or complete, the party is required to "forthwith provide the information in writing to every other party" (emphasis added). In the present case, the defence was asked about surveillance on its discovery, which took place on September 25, 2012. While their answer was initially correct that no surveillance had been conducted up to that point in time, it is clear that this answer was no longer complete or correct once surveillance took place following completion of the examinations for discovery. The defendant was, therefore, required to forthwith notify the plaintiff about the surveillance promptly after the relevant reports were received. A delay of over two years in providing this information does not satisfy the requirements of rule 31.09(1) (b). Given that surveillance was conducted during three separate time frames, three separate notifications should have been given to the plaintiff about the surveillance which was conducted.

[9] It is also apparent that the defence was under an obligation to deliver an updated affidavit of documents in light of the Iannarella decision. In that case, the Court of Appeal considered the obligations of a party under rule 30.07 of the Rules of Civil Procedure. That rule states,

30.07 Where a party, after serving an affidavit of documents,

(a) comes into possession or control of or obtains power over a document that relates to a matter in issue in the action and that is not privileged; or

(b) discovers that the affidavit is inaccurate or incomplete,

the party shall forthwith serve a supplementary affidavit specifying the extent to which the affidavit of documents requires modification and disclosing any additional documents.

[10] In the Iannarella decision, the court found that there was an obligation to deliver an updated affidavit of documents where additional privileged documents were obtained under the provisions of rule 30.07(b). Prior to that decision, one might have reasonably contemplated a supplementary affidavit was not required where further privileged documents were received, as this was specifically excluded under the provisions [page78 ]of rule 30.07(a). If it was contemplated by the Rules that the addition of a privileged document would necessitate an updated affidavit of documents under subsection (b), one might question why it was necessary to carve out an exclusion under subsection (a). Nevertheless, the Court of Appeal has clearly spoken on this issue and in the Iannarella decision, the court states [at para. 59]:

In my view, the analysis in both cases is mistaken, since the judges focused exclusively on rule 30.07(a) and ignored the disjunctive "or" that leads to the obligation to provide an affidavit of documents under rule 30.07(b) even for privileged documents.

[11] In this case, therefore, in light of the Iannarella decision, the defence was required to produce updated affidavits of documents as the additional surveillance reports were received.

[12] Rule 30.08(1) of the Rules of Civil Procedure provides that where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit of documents, the following provisions apply:

(a) if a document is favourable to his or her case, the party many not use the document at the trial, except with leave of the trial judge; or

(b) if the document is not favourable to his or her case, the court may make such order as is just.

[13] In addition, where a party fails to comply with the duty to correct an answer given at examinations for discovery under rule 31.09(1), rule 31.09(3) provides that where the information subsequently discovered is favourable to the party's case the party may not introduce the information at the trial, except with leave of the trial judge.

[14] In light of the defence's failure to disclose the surveillance information in a prompt manner, it is apparent that this evidence may not be referred to during the trial unless leave is given by this court. The test for leave in connection with both a failure to disclose a document under rule 30.08 and the failure to correct an answer on discovery under rule 31.09 is governed by rule 53.08. This rule provides that where evidence is admissible only with leave of the trial judge, "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".

[15] The case law makes it clear that, in considering whether leave should be granted under rule 53.08, a trial judge must grant leave unless to do so will cause prejudice that cannot be overcome by an adjournment or costs. [page79 ]See Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97, [2000] O.J. No. 4428 (C.A.). As noted in the Iannarella decision, this mandatory orientation is understandable, since relevant evidence, including surveillance, is ordinarily admissible.

[16] I have concluded that the defence should be entitled to rely on the surveillance evidence for purposes of impeachment. In the decision of Wigmore v. Wyler (2014), 123 O.R. (3d) 446, [2014] O.J. No. 5532, 2014 ONSC 6744 (S.C.J.), I noted that 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. The exclusion of the surveillance evidence in this case 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.

[17] This is not a case like Iannarella, where the court found that the prejudice to the plaintiff was "baked in" because the trial was well under way and the issue was not apparently raised until the defence was conducting its cross-examination of the plaintiff. In the present case, the parties have not yet made their opening submissions to the jury, nor has any evidence been called. Thus, neither party has taken any steps at trial which could result in prejudice by not knowing that this evidence might be referred to at trial.

[18] In addition, any prejudicial effect by the late failure to disclose the surveillance can be addressed through an adjournment of the trial if requested by the plaintiff's solicitor. Any prejudice with respect to costs can be addressed by requiring the defendant to pay costs to the plaintiff arising out of any adjournment. In order to further minimize any potential prejudice, I further order that the defendant forthwith produce copies of the video surveillance to the plaintiff, so the plaintiff will have the opportunity to view the surveillance video prior to giving her evidence.

[19] This order is limited to the defendant relying on the surveillance evidence for purposes of impeachment. This is consistent with the provision of rule 30.09, which provides that 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 at least ninety days before the commencement of trial, the party may not use the document at trial, except to impeach the testimony of a witness or with leave of the trial judge.

[20] I also note that the proposed disposition is similar to that which was approved by the Court of Appeal in Iannarella, in [page80 ]referring to the case of Smith v. Morelly, 2011 ONSC 6834, [2011] O.J. No. 5270, 2001 ONSC 6834 (S.C.J.).

[21] For the above reasons, I conclude that the prejudicial effect of the surveillance does not outweigh its probative value and that the defence should be entitled to refer to the surveillance evidence.

[22] Case law and common sense makes it clear that surveillance evidence is powerful evidence at a trial. The obligations of the defence to disclose surveillance evidence in accordance with the Rules is an important responsibility and is not to be taken lightly. There is always the potential for prejudice, which must be carefully reviewed if the defence fails to meet its obligations under the Rules. While I agree that in this case, the balance favours allowing the defence to use the surveillance evidence for purposes of impeachment, it is disappointing to see a case where the defence has failed to honour its obligations under the Rules, especially when the Court of Appeal has so recently dealt with this issue in a clear and unambiguous manner.

Order

[23] For the reasons set out above, I order that the defendant may use the surveillance obtained of the plaintiff for impeachment purposes, subject to the following terms:

(a) if the plaintiff requests an adjournment of the trial, this will be granted and the defendant will be ordered to pay the plaintiff's costs thrown away;

(b) the defence shall forthwith provide to the plaintiff copies of the video surveillance which was taken of the plaintiff's activities.

Motion dismissed.

End of Document