COURT FILE NO.: CV-12-55890
DATE: 2015/12/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dennis Villeneuve, Plaintiff
AND
Refill Pros Inc., 6850537 Canada Inc., Ignacio Nunez Saenz, Place D’Orleans Holdings Inc., Securitas Canada Ltd., Gio Hardy and Benoit Tanguay, Defendants
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Jean-Francois Lalonde, Counsel for the plaintiff Kelly P. Hart, Counsel for the defendant Ignacio Nunez Saenz Patricia Horak, Counsel for the defendants, Securitas Canada Ltd., Gio Hardy, and Benoit Tanguay
HEARD: October 15, 2015
RULING With Respect to Surveillance Evidence
Introduction
[1] The plaintiff was involved in two altercations at the Place D’Orleans Mall on April 11, 2012. The plaintiff’s claim is for damages for injuries and losses suffered as a result of the altercations. The individual defendants are a store owner and two security guards involved in the altercations. The remaining corporate defendant is the employer of the two security guards. The plaintiff’s claims against the other named defendants were previously dismissed.
[2] The plaintiff commenced his action pursuant to Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. His claim for damages is within the $100,000 maximum prescribed by Rule 76. The defendant did not require that the matter be transferred out of the Simplified Procedure process. As of the date of trial the matter remained within the Simplified Procedure.
[3] The case was called for trial on October 13, 2015. Neither the plaintiff nor the defendants brought a preliminary motion prior to the commencement of trial. On October 13, 2015 the jury was selected, opening statements were made, and counsel for the plaintiff called his first witness. In none of the opening statements was any reference made to surveillance evidence.
[4] Upon counsel for the plaintiff, Mr. Lalonde, advising that he had completed his examination-in-chief of the plaintiff, a motion was heard to address what use, if any, could be made by the defendants of video of the surveillance conducted of the plaintiff in late September and early October, 2015. The evidence on the motion is restricted to an agreed statement as to: a) the chronology of events in the action; and b) correspondence, in the form of letters and emails, between counsel with respect to the surveillance video. On consent, the correspondence (three documents) was filed as a series of exhibits.
[5] Oral reasons were given on the motion with these written reasons to follow. My decision on the motion was as follows:
The surveillance evidence is not excluded outright;
The admissibility of the surveillance evidence for the purpose of impeachment on cross-examination and/or as substantive evidence on behalf of the defendants remains to be determined in accordance with the applicable criteria; and
The plaintiff is granted an adjournment of 1.5 days of trial time to:
a) Review the surveillance video and determine how he will manage said evidence at trial;
b) Provide a copy of the surveillance video to the plaintiff’s sole medical witness (family physician, Dr. Nordin) to review; and
c) Consider settlement offers made and received prior to the commencement of trial.
Background
[6] The chronology of events in the action up to and including the production of the surveillance report and videotapes to counsel for the plaintiff is as follows:
November 2, 2012 – The statement of claim is issued.
January 2013 – A statement of defence is served on behalf of Mr. Nunez Saenz and the numbered company. At the time, these defendants were represented by counsel other than Mr. Hart of Williams McEnery.
Spring 2013 – Williams McEnery become the lawyers of record for Mr. Nunez.
August 2013 – Examinations for discovery are conducted.
December 2013 – Mediation is conducted and does not result in a resolution of the case.
January 9, 2015 – A pre-trial conference is conducted. The matter is set to proceed to trial on October 13, 2015 before a jury. The time estimated for trial is five to six days.
September 24, 2015 – The investigation firm of Belanger & Associates is retained by Williams McEnery to carry out surveillance of the plaintiff.
September 30 and Belanger & Associates carry out surveillance of the plaintiff. October 1 & 2, 2015
October 5, 2015 – Mr. Hart receives from Belanger & Associates a report of the surveillance conducted and an edited version (approximately 5.5 hours) of the surveillance video.
October 6, 2015 – At 4:45 p.m., Vice & Hunter (Mr. Lalonde in particular; counsel for the plaintiff) receive by courier:
a) A letter dated October 6, 2015 from Mr. Hart addressed to Mr. Lalonde;
b) A copy of the report of Belanger & Associates; and
c) A copy of the edited version of the video. In the letter Mr. Hart informs Mr. Lalonde that the defendants intend to rely upon the surveillance as substantive evidence in defence of the claims made against them.
October 7, 2015 – In the morning Vice & Hunter receive by courier from Williams McEnery:
a) A letter dated October 7, 2015 from Mr. Hart addressed to Mr. Lalonde;
b) A copy of the unedited version of the surveillance video; and
c) A notice, pursuant to section 35 of the Evidence Act, R.S.O. 1990, c. E.23 with respect to the surveillance report and video.
October 7, 2015 – Mr. Lalonde sends an email message to Mr. Hart. Mr. Lalonde informs Mr. Hart of the plaintiff’s position with respect to the proposed use of the surveillance video:
a) The surveillance evidence is not admissible at trial; and
b) He will object to evidence being given by the investigators who carried out the surveillance.
October 9, 2015 – Vice & Hunter receive from Williams McEnery an unsworn supplementary affidavit of documents in Mr. Nunez’s name. The surveillance report and video are listed in Schedule ‘A’ of the affidavit of documents.
October 13, 2015 – After 5:00 p.m., Mr. Lalonde receives an email message from Williams McEnery attached to which is the supplementary affidavit of documents sworn by Mr. Nunez.
[7] Ms. Horak (of Beard Winter; counsel for the defendant security company and guards) is copied by email on the October 6, 2015 letter from Mr. Hart to Mr. Lalonde. She is also copied on the October 7, 2015 email from Mr. Lalonde to Mr. Hart. I do not know whether Ms. Horak is copied on any of the other correspondence.
[8] In his submissions, Mr. Hart explained that the defendants collectively are relying on the surveillance evidence and the evidence from the defence medical examiner, Dr. Johnston. Mr. Hart and Ms. Horak agreed to split the work involved, with Williams McEnery responsible for surveillance and Beard Winter responsible for the defence medical examination.
[9] Prior to the motion being heard Mr. Hart and Mr. Lalonde did not agree on the nature of the motion. Mr. Lalonde requested that the motion be treated as a motion on behalf of the defendants with respect to the admissibility of the surveillance evidence. Mr. Hart requested that the motion be treated as a motion on behalf of the plaintiff for an order excluding the surveillance evidence.
[10] The motion was heard upon conclusion of the examination-in-chief of the plaintiff. A ruling was required at that time with respect to the surveillance evidence because the defendants intended to use it for the purpose of impeachment on cross-examination only if they were otherwise precluded from relying on it as substantive evidence in defence of the claims made against them.
[11] Given the timing of and the reasons for the motion, I determined that it was a motion on behalf of the defendants for leave to use the surveillance as substantive evidence in defence of the claims made against them.
[12] I was not provided with a copy of the surveillance video, edited or in full. My ruling was made without having had an opportunity to review the video footage.
Positions of the Parties
a) The Defendants
[13] The defendants’ position is that the surveillance evidence was disclosed to the plaintiff in accordance with the Rules of Civil Procedure. Privilege was not claimed for either the report or the video. Full disclosure of the surveillance was made. The defendants say that as a result they do not require leave of the Court to introduce the surveillance evidence. The defendants submit that they need only satisfy the criteria with respect to the use of surveillance as substantive evidence or, in the alternative, for the purpose of impeachment.
[14] I accept the defendants’ submission that the circumstances with respect to the disclosure of the surveillance do not fall within the scope of subrule 53.08(2) of the Rules of Civil Procedure, in particular item 1 - “failure to disclose document”. I agree with the defendants that to introduce the surveillance evidence they do not require leave of the Court pursuant to subrule 53.08(1). With the defendants having met their disclosure obligations, rule 53.08 does not apply to this matter.
b) The Plaintiff
[15] The plaintiff’s position is that the defendants were required to bring a preliminary motion, prior to the commencement of trial, for a ruling with respect to the surveillance report and video. The plaintiff argues that the defendants left it too late in the proceeding to bring their motion and, based on timing alone, the motion should be dismissed. Alternatively, the plaintiff’s position is that he was significantly prejudiced by reason of the timing of the production of the surveillance report and video and that prejudice cannot be addressed by any relief other than the dismissal of the motion.
[16] The third point upon which the plaintiff relies is the manner in which Mr. Hart’s letter of October 6 is worded. The letter refers only to use of the surveillance report and video as substantive evidence to be called as part of the defendant’s case. The letter makes no mention of the use of the surveillance video for the purpose of impeachment on cross-examination. Therefore, if the defendants are permitted to use the surveillance report and video, that use should be restricted to substantive evidence only.
Rules of Civil Procedure
[17] The disclosure of documents obtained subsequent to the date on which a party’s original affidavit of documents is sworn is addressed in rule 30.07 of the Rules of Civil Procedure:
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.
[18] There is nothing in rule 30.07 or more broadly in Rule 30 which sets a deadline, including any date prior to trial, by which the parties must complete documentary disclosure. There are, however, consequences in relation to the discovery process once a matter has been placed on the trial list. The consequences of setting an action down for trial or consenting to an action being set down for trial are identified in rule 48.04 of the Rules of Civil Procedure:
• Subrule 48.04(1) provides that, “[s]ubject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.” Documentary disclosure is a “form of discovery”.
• Subrule 48.04(2)(b)(i)provides that subrule (1) does not, “relieve a party from any obligation imposed by … (i) rule 30.07 (disclosure of documents or errors subsequently discovered)”.
• Pursuant to subrule 48.04(3), leave of the court is not required if a party wishes to bring a motion to compel compliance with any of the obligations listed in subrule (2)(b) including that with respect to documentary disclosure.
[19] I infer from the fact that the parties participated in a pre-trial conference at which the trial date was set that the defendants consented to the action being placed on the trial list. The defendants therefore fall within the scope of rule 48.04. They were as of January 2015, once the trial date was set, precluded from continuing any form of discovery without leave of the court.
[20] I interpret subrules 48.04(1) and (2)(b) as:
a) Requiring the parties to an action to complete their documentary disclosure obligations, using all reasonable efforts, prior to the action being set down or listed for trial;
b) Not relieving any party from the obligation to disclose documents subsequently discovered; and
c) Requiring a party to seek leave of the court to rely at trial on a document discovered after the action has been set down for trial even if the party has complied with their rule 30.07 documentary disclosure obligations. Without this requirement:
i) There would be no impetus or motivation for a party who discovers a document after the action has been set down for trial to disclose the document in a timely manner; and
ii) The potential for ‘trial by ambush’ would continue to exist.
[21] In referring to ‘trial by ambush’, I am in no way suggesting that counsel for the defendants in this action have conducted themselves in that manner. They have not done so. The circumstances in this case are that surveillance of the plaintiff was undertaken and video was obtained on dates approximately two weeks prior to the commencement of trial; full disclosure of the surveillance report and video was made in as timely a manner as was possible; and a sworn supplementary affidavit of documents, referencing the surveillance evidence in Schedule ‘A’, was served.
Timing of the Motion
[22] None of the parties chose to address the issue of the surveillance evidence by way of a preliminary motion prior to trial. As a result, the motion was determined:
• On the basis of less than comprehensive evidence, in particular as to the potential prejudice to the plaintiff by reason of the timing of the disclosure of the surveillance report and video; and
• Subsequent to the plaintiff commencing his testimony.
[23] Counsel for the parties were no doubt mindful that this is a trial before a jury of a matter within the Simplified Procedure. A request was not made for an adjournment of the trial to permit the preparation of affidavit evidence for use on the motion or to call viva voce evidence on the motion. I infer that in proceeding as they did on this motion counsel for the parties considered the principle of proportionality.
Evidentiary Issue
[24] For the reasons set out in paragraphs 18 to 2) above, I find that the defendants require leave of the Court to rely on the surveillance video as substantive evidence or, in the alternative, for the purpose of impeachment on cross-examination. Therefore, the issue to be determined on the motion is whether the defendants are entitled to leave of the Court to rely on the surveillance video as substantive evidence or, in the alternative, for the purpose of impeachment on cross-examination.
a) Admissibility of Evidence Generally
[25] General principles with respect to the admissibility of evidence are set out in the decision of the Ontario Court of Appeal in R. v Collins (2001), 2001 CanLII 24124 (ON CA), 150 O.A.C. 220. The key passage relied on by the defendants is from paragraph 18 of the decision of Charron J.A. (as she then was):
A witness’ testimony as to observed facts is, of course, subject to the general principles governing the admissibility of any evidence: relevance and materiality. Relevance is established at law if, as a matter of logic and experience, the evidence tends to prove the proposition for which it is advanced. The evidence is material if it is directed at a matter in issue in the case … Hence, evidence that is relevant to an issue in the case will generally be admitted. Indeed, it is a fundamental principle of our law of evidence that any information that has any tendency to prove a fact in issue should be admitted in evidence unless its exclusion is justified on some other grounds: see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at 715; Morris v. R., 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190 at 201; and R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at 609.
[26] Of equal importance are the statements made by Charron J.A. at paragraph 19 of the decision. She therein summarizes the law with respect to the exclusion of evidence that is otherwise material and relevant:
The grounds that justify the exclusion of evidence that is otherwise relevant and material form the basis of many of our more specific rules of evidence. The rule against hearsay, the opinion rule and the similar fact rule are a few examples. Quite apart from these specific rules, evidence that is otherwise relevant and material may also be excluded by the exercise of the trial judge’s general power to safeguard the fairness of the proceedings. Our law of evidence 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 admission … Prejudice in this context does not mean, of course, that the evidence will be detrimental to the other party’s position. Rather, it is related to the detrimental effect that the evidence may have on the fairness and the integrity of the proceedings.
b) Surveillance Evidence – Recent Case Law
[27] Neither the plaintiff nor the defendants rely explicitly on the February 2015 decision of Lauwers J.A. in Iannarella v. Corbet, 2015 ONCA 110; 124 O.R. (3d) 523. The facts in Iannarella are dramatically different from those in the matter before me. However, the decision in Iannarella is helpful because of its consideration of ‘trial by ambush’, the importance of “good trial practice” by counsel, and the options available to a trial judge in terms of relief which may be granted based on the timing of disclosure of surveillance evidence.
[28] In Iannarella, the defendants failed to comply with the Rules of Civil Procedure with respect to disclosing the existence of surveillance evidence and providing the particulars of that evidence. They were, nonetheless, given leave by the trial judge to use the surveillance evidence on cross-examination to impeach the plaintiff’s credibility. The decision at trial was appealed.
[29] Lauwers J.A. considered what would have happened if the defendants had complied with the Rules of Civil Procedure. In doing so he emphasized the importance of the “pre-trial process” available to a plaintiff when the defendant complies with their disclosure obligations with respect to surveillance evidence.
a) The plaintiff is able to secure particulars of the surveillance evidence; and
b) Counsel for the plaintiff is able to “better plan” the plaintiff’s examination-in-chief to address the surveillance evidence and, if warranted, to seek an adjournment of the trial.
[30] Lauwers J.A. was critical of the trial judge for failing, at the trial management conference, to allow the plaintiff even a relatively short adjournment. He was also critical of counsel for the plaintiff for failing to take steps at an earlier stage to procure relief to which the plaintiff would have been entitled with respect to the surveillance evidence.
Analysis
a) Relevance and Materiality
[31] The surveillance evidence in the matter before me is said to include footage of the plaintiff’s activities and to address his stamina (i.e. the span of time over which he is capable of participating in activities). The defendants’ position is that the surveillance video is relevant and material to the issue of the assessment of damages claimed by the plaintiff. As noted above, I did not have the opportunity to review the surveillance video prior to ruling on this motion.
[32] On the basis of the general description provided by Mr. Hart, I find that the surveillance video is relevant and material generally to the plaintiff’s claim for damages. That finding is subject to consideration at a later stage in the trial of the tests applicable to the use of surveillance evidence for the purpose of impeachment only or as substantive evidence.
b) Prejudice versus Probative Value
[33] In determining the outcome of this motion, consideration is given to whether:
a) There is prejudice to the plaintiff, if the surveillance evidence is not excluded outright; and
b) The prejudice to the plaintiff, if it exists, outweighs the probative value of the evidence such that the fairness and integrity of the proceeding would be adversely affected if the evidence were admitted.
[34] Counsel for the plaintiff, having been provided with the surveillance report and video footage (i.e. full disclosure), chose not to proceed with a preliminary motion for an order excluding the surveillance evidence or, in the alternative, a brief adjournment of the trial. Counsel for the plaintiff acknowledged that he did neither because of his “assumption”, based on the contents of Mr. Hart’s October 6 letter.
[35] In his letter dated October 6, Mr. Hart said, “The Defendants intend to rely on this evidence as part of their case and will be calling the surveillance investigators as part of their case.” Mr. Lalonde responded by email on the morning of October 7 stating, “Giving(sic) the late delivery and irrelevance of the content, we will object to its admissibility at trial and also object to the calling of the surveillance investigation [sic] as witnesses at trial.” Mr. Hart did not respond to that email. On October 7 he produced the unedited surveillance video as he had, in his October 6 letter, said he would.
[36] In his submissions, Mr. Lalonde admitted that he “assumed” that the lack of response from Mr. Hart to the October 7 email ‘objection’ made on behalf of the plaintiff meant the defendants were “capitulating” and would not attempt to introduce the surveillance evidence as substantive evidence. Mr. Lalonde’s assumption was erroneous and cavalier. Prudence dictated that he communicate with Mr. Hart to confirm the correctness of the assumption. As a result of the erroneous assumption made by Mr. Lalonde, the plaintiff was denied the “important pre-trial process” to which Lauwers, J.A. referred in Iannarella.
[37] I find that by reason of the timing of the documentary disclosure of the surveillance report and video footage, the prejudice to the plaintiff is significant. However, without the opportunity to review the surveillance footage upon which the defendants intended to rely, I am unable to make a finding that the prejudice to the plaintiff outweighs the probative value of the surveillance evidence. To make a finding in that regard requires that I have something more than the verbal overview, provided by Mr. Hart, of the contents of the surveillance video.
a) Fairness of the Proceeding
[38] The plaintiff submits that if the surveillance evidence is not excluded outright he will have been prejudiced in his preparation for trial. Having received the edited video footage on October 6 and the unedited video footage on October 7, there was insufficient time for counsel for the plaintiff to:
• Review the video footage, personally and with the plaintiff (i.e. in preparing for and planning the plaintiff’s examination-in-chief).
• Arrange for the one physician being called on behalf of the plaintiff to receive a copy of and review the video. The physician would have reviewed the video for the purpose of considering whether there was anything in the footage that had an impact on the evidence he anticipates giving at trial and more generally in preparation for his attendance at trial.
• Consider what impact, if any, the video footage had on the plaintiff’s settlement position generally and the offers, if any, made or received by the plaintiff.
[39] The production of the surveillance report and edited video on October 6 meant that the plaintiff had three business days within which to consider and address the nature and timing of the documentary disclosure. I am mindful that those three business days immediately preceded the long Thanksgiving weekend. The trial commenced on Tuesday, October 13, 2015.
[40] In determining the appropriate remedy I have considered the following:
• The claim is made pursuant to the Simplified Procedure. It would be costly to all parties for a mistrial to be declared. Proportionality requires that less costly relief be granted.
• A brief adjournment of the trial, for the afternoon of Thursday, October 15 and the full day on Friday, October 16, with the trial to resume on the morning of Monday, October 19, gives the plaintiff and his counsel an additional 3.5 days in total within which to review and address as may be required, the surveillance report and footage.
• Each of the three counsel involved in this trial made the strategic decision that they would not proceed by way of a preliminary motion, prior to the commencement of trial, to address the issue of the admissibility of surveillance.
[41] In granting a brief adjournment (1.5 days of trial time) for the plaintiff and his counsel, I am mindful of: a) the criticism by Lauwers J.A. in Iannarella (see paragraph 69 of the decision) of the trial judge for failing to give the plaintiff an adjournment to address the surveillance evidence disclosed late in the proceeding; b) the identification by Gilmore J. in Smith v. Morelly, 2011 ONSC 6834 (see paragraph 31 of the decision) of an adjournment as an option in the face of the disclosure of surveillance evidence late in the proceeding; and c) the principle of proportionality in particular in a Simplified Procedure action such as the one before me.
[42] The jurisdiction to grant an adjournment of the trial stems, at least in part, from rule 52.02 of the Rules of Civil Procedure, which provides: “A judge may postpone or adjourn a trial to such time and place, and on such terms as are just.” A trial judge’s decision to grant or refuse an adjournment is highly discretionary: see Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522 at para. 28.
[43] With the plaintiff having already given evidence-in-chief, it is less than ideal to allow him and his counsel an opportunity to review the video footage. However, I am confident the evidentiary considerations arising from the timing of that review are surmountable.
[44] It is not uncommon for a witness to give evidence over a number of days. Counsel is not precluded from continuing to prepare the witness for upcoming testimony after he or she has commenced his or her testimony. The prohibition with respect to communication as between counsel and the witness is with respect to discussion of evidence already given. Mr. Lalonde is aware of his obligations in that regard and shall no doubt conduct himself accordingly when he reviews the surveillance evidence with the plaintiff.
[45] The plaintiff and his counsel must now make a strategic decision as to whether the plaintiff will address the surveillance evidence: a) by continuing his evidence-in-chief; or b) if necessary, in re-examination. Mr. Lalonde is aware that if the plaintiff chooses to continue his evidence-in-chief it will not be appropriate for him to go over evidence already given. Counsel for the defendants are aware that if the plaintiff chooses to continue his evidence-in-chief, so as to address the surveillance evidence, it will be incumbent upon them to be vigilant and object as may be required to ensure that the plaintiff does not go over evidence already given.
Disclosure of Surveillance as a Schedule ‘A’ Document
[46] What distinguishes this matter from the majority of the cases relied on by the parties is that the defendants in this action never claimed privilege for the surveillance evidence upon which they seek to rely. In the ‘typical’ scenario:
The defendant claims privilege over surveillance, listing it in Schedule ‘B’ of their affidavit of documents;
Particulars of the surveillance are provided as part of the discovery process; and
If the defendants intend to rely on the surveillance as substantive evidence, privilege is waived and the video is disclosed.
[47] In this matter, the surveillance fully disclosed by the defendants in the days prior to the commencement of trial is the only surveillance conducted of the plaintiff. There would have been no reference to surveillance in Schedule ‘B’ of the affidavits of documents of the defendants sworn and served at any point prior to late September 2015 (i.e. when the surveillance of the plaintiff commenced).
[48] Mr. Hart submits that Mr. Lalonde could have pursued the matter of surveillance at an earlier date in the context of the discovery process – by obtaining an undertaking to disclose particulars of surveillance obtained subsequent to the oral discovery process. Given the timing of the surveillance and of the disclosure of the surveillance evidence, that submission carries little weight. In any event it is the obligation of a party who comes into possession of a document to provide an updated affidavit of documents listing the new document and to do so in a timely manner: see subrules 30.06 and 30.07(h) of the Rules of Civil Procedure. It was not the plaintiff’s obligation to chase the defendants to ensure they complied with their documentary discovery obligations – including their obligations with respect to surveillance.
[49] The defendants essentially take the position that because they never claimed privilege for the surveillance they have somehow conducted themselves better than does a defendant who claims privilege for surveillance, never waives privilege, and seeks at trial to rely on the surveillance solely for the purpose of impeachment of credibility. In my view, the defendants in this action conducted themselves no better or worse than a defendant in the typical scenario. The defendants in this matter, having made the strategic decision to rely on the surveillance as substantive evidence, fulfilled their documentary disclosure obligations in that regard.
[50] Had the defendants sought only to rely on the surveillance for the purpose of impeachment, their disclosure obligations would have been limited to providing an updated affidavit of documents in which the surveillance was listed in Schedule ‘B’. It would then have been up to the plaintiff, upon receipt of the updated affidavit of documents, to pursue disclosure of particulars of the surveillance and consider whether an adjournment of the trial was necessary. By proceeding as they did, the defendants:
a) Eliminated the potential for an adjournment of the trial solely for the purpose of allowing the plaintiff the opportunity to pursue the particulars of surveillance and respond to the particulars once provided; and
b) Were prepared to risk that they would not succeed in meeting the three-part test for the admission of the surveillance as substantive evidence.
[51] In the end, the surveillance evidence upon which the defendants seek to rely as substantive evidence is given the same consideration as would be any other Schedule ‘A’ document obtained and disclosed by the defendants three or four business days prior to the commencement of trial. The nature of the document, the significance of the document, the timing of disclosure of the document, and the potential prejudice to the plaintiff has each been considered.
Summary
[52] With respect to the surveillance evidence, I order as follows:
The defendants are granted leave to rely on the surveillance evidence for the purpose of impeachment or as substantive evidence subject to meeting the two-part and three-part tests, respectively, applicable to the use of surveillance for those purposes. The surveillance evidence is not excluded outright.
The plaintiff is granted an adjournment of 1.5 trial days.
It remains open to:
a) The plaintiff to decide how to manage the surveillance evidence – by continuing his evidence-in-chief, addressing the surveillance evidence if necessary on re-examination, or addressing the surveillance evidence if necessary in reply;
b) The defendants, if they choose to do so, to rely upon the surveillance evidence for the purpose of impeachment – if the two-part test is met; and
c) The defendants to rely, as per their stated intention, to rely on the surveillance evidence as substantive evidence – if the three-part test is met.
Date: December 14, 2015
Justice S. Corthorn
COURT FILE NO.: CV-12-55890
DATE: 2015/12/14
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dennis Villeneuve, Plaintiff
AND
Refill Pros Inc., 6850537 Canada Inc., Ignacio Nunez Saenz, Place D’Orleans Holdings Inc., Securitas Canada Ltd., Gio Hardy, and Benoit Tanguay, Defendants
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Jean-Francois Lalonde, Counsel for the plaintiff Kelly P. Hart, Counsel for the defendant Ignacio Nunez Saenz Patricia Horak, Counsel for the defendants, Securitas Canada Ltd., Gio Hardy, and Benoit Tanguay
RULING WITH RESPECT TO SURVEILLANCE EVIDENCE
Justice S. Corthorn
Released: December 14, 2015