ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-10,645-08
DATE: 20151125
BETWEEN:
Ben Hayes
Plaintiff
– and –
Ian Symington, Sudbury Regional Hospital, Jane Doe, Suzanne Quevillon-Stanley, Joanna Kalviainen, Dave Alle and Mary Doe
Defendants
Patrick Poupore, for the Plaintiff
Wayne Brynaert, for the Defendant, Ian Symington
HEARD: November 24, 2015
Ruling on motion
Gauthier J.
Opening Statement
1The Plaintiff seeks leave to make use of photographs of his injuries, his dirt bike and helmet, and of the road where the accident occurred, during the opening statement and throughout the trial of the action, which is set to begin on November 30, 2015. The case will be tried by a jury.
2The photos of the dirt bike, helmet, and road were not the subject of much discussion during the argument of the motion. Rather, the focus is on a series of graphic photographs depicting the condition of the Plaintiff’s right leg, during his hospital stay. The Plaintiff had sustained a complex laceration to the anterior aspect of the right knee. The skin was gaping, with white tissue visible. The injury became infected and required surgical intervention. The photographs are very graphic, to say the least.
3The Plaintiff submits that he should be allowed to make use of the photos in the trial, including in his Opening Address because, among other things:
they depict his injuries, and are representative of his injuries shortly after the Defendant’s alleged negligence, to the present;
they have significant probative value;
they are relevant;
they will assist the jury in understanding the circumstances leading to the Plaintiff’s hospital stay, his condition in hospital, and the impact the injury has had on his mental or emotional health. They will help explain how the Plaintiff could experience psychological injuries, including post-traumatic stress disorder.
4Counsel used the phrase “road map” when describing what use the photographs would have for the jury, at the opening of the trial.
5The four-part test in assessing whether demonstrative aids, such as photographs, should be used in an opening address, was set out in Whitford v. Swan [1995] O.J. No. 4189, (O.C.J.):
(a) Will counsel proposing to use the demonstrative aid undertake to prove it?
(b) Is it likely relevant?
(c) Is it likely to assist the trier of fact in understanding the case? And
(d) Is there anything unusually prejudicial about the demonstrative aid that would require it to be excluded?
6The Defendant opposes the Plaintiff’s request, and submits that the Plaintiff has run afoul of Rule 30.07 by failing to provide the photographs as part of a new Affidavit of Documents, and therefore should be precluded from the use of the photographs at trial.
7Counsel submitted that (a) the photographs themselves depict the state of the injury when the dressing was removed to be replaced with a clean dressing; in other words, the wound would have been covered, and therefore not visible to anyone, including the Plaintiff, except for the dressing changes; (b) the photos will create a very real risk of injecting emotion at the outset of the trial; and (c) the photos are not necessary for the jury to understand the basis of the claim for damages for P.T.S.D., Chronic Pain, and Major Depressive Disorder.
8Counsel reiterated the limited function of an Opening Address and suggested that it would be inappropriate to permit the Plaintiff to show the photos at that stage of the proceeding. To be clear, the Defendant objects to the admission of the photographs at any point in the trial.
9I turn now to the test. The focus of the inquiry is particularly in respect of the third and fourth parts of the test set out in Whitford. I will nonetheless comment on the first two prongs of the test.
10Firstly, will counsel undertake to prove the photographs? There is disagreement between counsel about what is required to authenticate the photos. Plaintiff’s counsel maintains that he is not required to call the person who took the photos. All he has to do is have the Plaintiff provide evidence that the photos are an accurate depiction of his helmet, bike, and injuries, and of the road on which he fell from his dirt bike. However, if he is required to call the photographer(s), he will do so.
11Defence counsel disagrees and raises authenticity and timing of the photographs as real issues.
12On this point, I agree with the Defendant. Other than the photograph which depicts almost the entire body of the Plaintiff, including his face, and which depicts the left leg only, and although certain of the other photos of the injury appear to be of the Plaintiff, his face is not visible. Formal identification, if the photos are to be used, at any point during the trial, will be required. That includes evidence from the person or persons who took the photos.
13With regard to the second question, dealing with relevance, I am satisfied that the photos are relevant, provided that they are properly identified as to the circumstances surrounding their being taken.
14Are the photos likely to assist the triers of fact in understanding the case? The answer to that question is yes. Despite the fact that there will be expert evidence about the effects of the injury on the Plaintiff’s mental condition, the photos, properly proven, will show the nature and condition of the injury which the Plaintiff alleges affected him emotionally and/or psychologically.
15It will be appropriate for the Plaintiff to make use of the photographs during the course of the evidentiary portion of the trial, with proper authentication and context.
16I conclude however, that, at the stage of the Opening, the photos are not likely to assist the jury in understanding the case. Although it is possible, it is not likely.
17That would otherwise end the inquiry, but I do wish to address the issue of prejudice.
18On this point, I am of the view that there is the very real risk, if the Plaintiff is permitted to make use of the photographs at the Opening, that they will elicit sympathy from the jury, and potentially affect their decision making process.
19I will not permit the Plaintiff to make use of the photographs as part of his Opening. It is worth reiterating that an opening address “has the narrow and limited function of ‘defining the issues in the case and [outlining] those facts that will be adduced to establish the allegations advanced by the party.” John A. Olah, The Art and Scienc of Advocacy, looseleaf (Toronto: Thomson Carswell, 1990) vol. 1 at 8-5 to 8-6.
20I wish to comment on the applicability of Rules 30.07, 30.08, and Rule 53.08.
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. R.R.O. 1990, Reg. 194, r. 30.07.
30.08 (1) Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking,
(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. R.R.O. 1990, Reg. 194, r. 30.08(1); O. Reg. 504/00, s. 3.
(2) Where a party fails to serve an affidavit of documents or produce a document for inspection in compliance with these rules or fails to comply with an order of the court under rules 30.02 to 30.11, the court may,
(a) revoke or suspend the party’s right, if any, to initiate or continue an examination for discovery;
(b) dismiss the action, if the party is a plaintiff, or strike out the statement of defence, if the party is a defendant; and
(c) make such other order as is just. R.R.O. 1990, Reg. 194, r. 30.08(2).
53.08 (1) If evidence is admissible only with leave of the trial judge under a provision 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.
(2) Subrule (1) applies with respect to the following provisions:
Subrule 30.08(1) (failure to disclose document).
Rule 30.09 (failure to abandon claim of privilege).
Rule 31.07 (failure to answer on discovery).
Subrule 31.09 (3) (failure to correct answers on discovery).
Subrule 53.03(3) (failure to serve expert’s report).
Subrule 76.03 (3) (failure to disclose witness). O. Regs. 533/95, s. 5; 348/97, s. 4; 284/01, s. 13; O. Reg. 260/05, s. 11.
21At least ten of the photos appear to have been taken while the Plaintiff was in hospital, immediately following his dirt bike accident on July 23, 2006.
22The Plaintiff was examined for discovery on July 22, 2009. In the course of that examination, the Plaintiff undertook to provide photographs.
23The photographs were provided to Defendant’s counsel on October 30, 2015.
24On November 10, 2015, Defendant’s counsel was provided with an updated Affidavit of Documents which referred to “colour photographs”. No description of the photos or what they depict was provided.
25The Defendant submits that the Plaintiff has failed to comply with Rule 30.07, and requires leave to make any use of them in the course of the trial, by virtue of Rule 30.08. Leave should be denied.
26For his part, the Plaintiff says that he is not in breach of any Rule, having served the photographs 30 days before trial. I know of no rule governing proceedings in the Superior Court, where documents need only be produced 30 days before trial. Nor could counsel point me to any such rule.
27The Plaintiff additionally states that, even if he did run afoul of Rule 30.07, then the provisions of Rule 53.08 are engaged, and the Defendant must show prejudice in order for the Plaintiff to be denied leave to have the photographs admitted into evidence.
28I find that the Plaintiff failed to produce the photographs “in compliance with” the Rules.
29Firstly, the Plaintiff was under the obligation to produce the photographs, which appear to certainly have been in existence prior to the examination for discovery, within a reasonable period of time following the examination.
30Secondly, the nature and subject of the photographs should have been described in an Affidavit of Documents delivered within a reasonable time after the Plaintiff became aware that his earlier Affidavit(s) of Documents made no reference to photographs.
31That being said, in order to deny the leave sought, the Defendant must establish prejudice. There is no evidence of any prejudice caused to the Defendant as a result of the timing of the disclosure of the photos. The only prejudice is with regard to the use of the photographs during counsel’s Opening Statement, which I have already dealt with.
Conclusion
32The Plaintiff’s motion for leave to make use of photographs during his Opening, is denied.
33The Plaintiff’s motion for leave to make use of the photographs during the evidentiary portion of the trial is granted, subject to authentication of the photographs by way of the evidence of both the Plaintiff and whoever took the photos.
The Honourable Madam Justice Louise L. Gauthier
Released: November 25, 2015
COURT FILE NO.: C-10,645-08
DATE: 20151125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ben Hayes
Plaintiff
– and –
Ian Symington, Sudbury Regional Hospital, Jane Doe, Suzanne Quevillon-Stanley, Joanna Kalviainen, Dave Alle and Mary Doe
Defendants
ruling on motion
Gauthier J.
Released: November 25, 2015