COURT FILE NOS.: CV-16-561872; CV-18-597105 RELEASED: 2018/12/18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ruth Davis v. Toronto Transit Commission

BEFORE: Master Graham HEARD: November 29, 2018

COUNSEL: Alex Nikolaev for the plaintiff Alexandra Vaiay for the defendant

Reasons for Decision

(Plaintiff’s motion for disclosure of particulars of surveillance; defendant’s motion to compel plaintiff to attend examination for discovery)

[1] The plaintiff claims damages from the Toronto Transit Commission (“TTC”) arising from personal injuries sustained in two falls that occurred as she was exiting from TTC subways, the first on October 10, 2014 and the second on October 7, 2016. She issued a statement of claim on October 7, 2016 with respect to the 2014 fall and a second statement of claim on May 3, 2018 with respect to the 2016 fall.

[2] The TTC served a sworn affidavit of documents in the 2016 action on June 22, 2017, and in the 2018 action on August 31, 2018. The plaintiff has not yet served a sworn affidavit of documents in either action.

[3] In schedule B of its affidavit of documents in the 2016 action, the TTC lists four investigation reports, each with video footage, dated June 18, 2013, September 9, 2014, March 18, 2015 and August 26, 2016. The TTC’s affidavit of documents in the 2018 action includes in schedule B a further investigation report with video footage dated July 10, 2018.

[4] Counsel agreed to schedule examinations for discovery to proceed on December 4 and 13, 2018. On September 6, 2018, plaintiff’s counsel served notices of examination in both actions requiring the TTC’s attendance on October 4, 2018, which was not a date scheduled for examinations. Also on September 6, 2018, the TTC’s counsel served notices of examination on the plaintiff requiring her attendance on the scheduled date of December 4, 2018.

[5] The parties agree that the TTC is entitled to examine the plaintiff first, before its representatives are examined, because it served affidavits of documents before serving its notices of examination. However, a dispute has now arisen as to whether the TTC is required to disclose particulars of the surveillance described in its investigation reports and depicted in the videos before the plaintiff is examined for discovery.

[6] In this regard, the plaintiff has brought a motion for an order that, before she is examined for discovery, the TTC provide all dates, times and locations of surveillance and the nature and duration of the activities observed (“particulars of surveillance”), either in an updated affidavit of documents or in some other form. The TTC has brought motions for an order requiring the plaintiff to attend to be examined for discovery in both actions and stipulating that it be entitled to commence and complete this examination before its representatives are examined. Both parties’ motions concern the timing of the TTC’s disclosure of the details of its surveillance of the plaintiff.

[7] For the reasons set out below, the plaintiff’s motion is dismissed and the TTC’s motions are granted.

The Issue

[8] The issue on both motions is: Must a defendant disclose particulars of surveillance of the plaintiff before it conducts the plaintiff’s examination for discovery, even if it was the first party to serve an affidavit of documents and a notice of examination?

Applicable Rule

[9] The right to initiate an examination for discovery and the order in which examinations are to proceed is addressed in rule 31.04 of the Rules of Civil Procedure:

31.04 (1) A party who seeks to examine a plaintiff for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after delivering a statement of defence and, unless the parties agree otherwise, serving an affidavit of documents. R.R.O. 1990, Reg. 194, r. 31.04 (1) .

(2) A party who seeks to examine a defendant for discovery may serve a notice of examination under rule 34.04 or written questions under rule 35.01 only after,

(a) the defendant has delivered a statement of defence and, unless the parties agree otherwise, the examining party has served an affidavit of documents; or

(b) the defendant has been noted in default. R.R.O. 1990, Reg. 194, r. 31.04 (2) .

(3) The party who first serves on another party a notice of examination under rule 34.04 or written questions under rule 35.01 may examine first and may complete the examination before being examined by another party, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 31.04 (3) .

[10] To summarize, sub-rules 31.04(1) and (2) state that a party seeking to examine an opposing party for discovery must serve an affidavit of documents before serving a notice of examination. Subrule 31.04(3) states that the party who first serves a notice of examination may examine first and may complete its examination before being examined.

[11] As stated above, the plaintiff accepts that, by virtue of having served its affidavits of documents and notices of examination first, the TTC is entitled to examine the plaintiff first. However, the plaintiff also submits that she is entitled to particulars of the TTC’s surveillance before she is examined. The TTC submits that it is not required to disclose those particulars until the examination of its own representatives, to be held after it has completed its examination of the plaintiff.

Case Law

[12] The plaintiff relies on the decisions in Iannarella v. Corbett, 2015 ONCA 110 and Mir v. Kandiah, 2017 ONSC 6267 (Master).

[13] In Iannarella, the plaintiff claimed damages arising from injuries sustained in a motor vehicle accident. The defendants had not disclosed the existence of the surveillance in an affidavit of documents, having failed to serve an affidavit of documents at all, and had not provided particulars of surveillance. The trial judge refused the plaintiffs’ pre-trial request to order production of the defendants’ affidavit of documents or particulars of surveillance that the defendants would have been required to disclose if requested at their examination for discovery. The trial judge also permitted the defendants to use the surveillance evidence at trial.

[14] In considering the trial judge’s decision to allow the defendants’ use of surveillance evidence that had not previously been disclosed, the court in Iannarella set out the accepted practice with respect to the disclosure of surveillance (at paragraphs 40-45):

40 As noted in Ceci v. Bonk, privileged documents must be included in a party's affidavit of documents. Under rule 30.03(2)(b), video surveillance is typically identified in Schedule B to the affidavit of documents as a privileged document. The plaintiff then has the opportunity to seek full particulars of the surveillance from the defence at examination for discovery ; the "particulars" of surveillance that must be disclosed on request include the date, time and location of the surveillance, as well as the nature and duration of the activities depicted and the names and addresses of the videographers (for example, see Landolfi v. Fargione, at para. 22).

41 This practice of disclosing particulars is consistent with the Divisional Court's finding in Murray v. Woodstock General Hospital Trust (1988), 66 O.R. (2d) 129 (Div. Ct.), where the court held, at para. 13, that a person examined for discovery must comply with the plain meaning of the words in rule 31.06(1) and answer questions about the contents of the surveillance "even though to do so would require the disclosure of information contained in a privileged document." While the surveillance films themselves remain privileged, the facts disclosed by the films do not . (Machado v. Berlet, (1986), 57 O.R. (2d) 207 (H.C.J.), at para. 6 )

42 As Howden J. held in Beland v. Hill, 2012 ONSC 4855, at para. 50 , " the discovery rules are to be read in a manner to discourage tactics and encourage full and timely disclosure in order to encourage early settlement and reduce court costs ." See also Ceci, at para. 10 , and Arsenault-Armstrong v. Burke, 2013 ONSC 4353, at para. 11 .

43 Justice Osborne explained that a party's obligation to disclose the contents of surveillance, even if it has no intention of relying on that evidence at trial, "comes from a broad view of the undertaking given on discovery and ... the requirement of full disclosure emerging from a liberal interpretation of the new Rules of Civil Procedure." (Niederle v. Frederick Transport Ltd., [1985] O.J. No. 1608 (H.C.J.), at para. 17 )

44 Pre-trial disclosure of surveillance in a personal injury action is particularly important since "the impact of video evidence can be powerful." (Landolfi, at para. 52) Disclosure also provides the parties with the opportunity to carry out a realistic assessment of their positions and therefore facilitates settlement. Justice Hambly explained the important role of disclosure in Arsenault-Armstrong:

The surveillance evidence will assist the plaintiff in evaluating the strength of her case and arriving at her settlement position prior to trial. Even if the defendant will not be able to use the surveillance evidence for impeachment purposes, as a result of its non-disclosure, the defence will gain knowledge of the plaintiff from the surveillance evidence which it will be able to use to its benefit. (Para. 11)

45 However, the surveillance evidence can only serve to encourage settlement if it is disclosed in the affidavit of documents and the opposing party has the opportunity to seek particulars at examination for discovery . Here, for example, the appellants did not accept a substantial settlement offer; perhaps they would have accepted it, thus avoiding a lengthy and costly trial, had the respondents properly disclosed their surveillance evidence.

[emphasis added throughout]

[15] The court in Iannarella ultimately concluded that the failure of the trial judge to require the defence to comply with the Rules in relation to the disclosure of surveillance “gave rise to a form of trial by ambush” (paragraph 114) that warranted an order for a new trial on the issue of damages.

[16] In Mir v. Kandiah, supra, the defendant Allstate served an affidavit of documents that listed two surveillance reports in Schedule B. Plaintiffs’ counsel requested particulars of surveillance twice, received no response, and then set the action down for trial on September 24, 2016. Allstate then commenced the examinations for discovery of the plaintiffs over two days in February and June, 2017 without completing them. In October, 2017, the plaintiffs moved for an order requiring Allstate to disclose particulars of surveillance.

[17] Allstate’s position on the motion was that the plaintiffs had waived their right to examine for discovery by setting the action down for trial, and that it had no obligation to provide the particulars of surveillance other than at its representative’s examination.

[18] The master in Mir held (at paragraph 11):

11 In the case at bar, plaintiff’s counsel made numerous requests for the particulars of the surveillance. He waived his optional right to conduct an examination for discovery of Allstate with a view to expediting the proceeding. Allstate did deliver an affidavit of documents and by virtue of rule 30.07(b), the plaintiff is entitled to production of the particulars that would ordinarily be provided through a discovery undertaking. As this is an ongoing discovery obligation, and in accordance with rule 48.04(2), leave is not required. Further, the defendants cannot use rule 48 to shield their production and disclosure requirements. Our rules are to be read to discourage strategic tactics and to encourage early settlements.

[19] The master ordered the defendant to deliver an updated affidavit of documents, to include “all particulars of surveillance including the date, time and location of the surveillance together with the nature and duration of the activities depicted and the names and addresses of the videographers”.

[20] The TTC relies on Hallock v. Hothi, 2015 ONSC 1851 in which Aston J. addressed the timing of disclosure and discovery steps in relation to video surveillance. Aston J. ordered that the defendants be entitled to conduct a further examination for discovery of the plaintiff under the condition that they deliver a sworn supplementary affidavit of documents disclosing the existence of surveillance evidence. More contentious was the plaintiff’s motion for the defendants to either re-attend to be examined for discovery or otherwise provide full particulars of surveillance of the plaintiff. The defendants acknowledged their obligation to provide those particulars but argued that they were not required to do so until they completed their examination of the plaintiff.

[21] Aston J. found as a fact that the defendants, which had already commenced but not completed their examination for discovery of the plaintiff, never waived their right to complete the discovery before disclosing the particulars of surveillance. He ordered that the defendants provide particulars of surveillance in writing forthwith following completion of the plaintiff’s examination for discovery, concluding (at paragraphs 9 and 10):

9 In this case, unlike Iannarella, the defendants are not seeking to ambush the plaintiff at trial with surveillance evidence neither disclosed nor particularized. They are willing to provide the particulars immediately after their further examination for discovery of the plaintiff in the next few weeks. The plaintiff is entitled to know the particulars of the surveillance evidence before trial but I am not persuaded that she is entitled to know those particulars before her examination for discovery is completed . [emphasis added]

10 It might be otherwise in a case where the plaintiff is the first to serve a notice of examination for discovery. Rule 31.04(3) provides that the party who first serves a notice of examination under rule 34.04 may examine first and may complete the examination before being examined by another party, unless the court orders otherwise. The plaintiffs in this case have not sought such an order. The ability to obtain such an order is the protection the rules afford to a plaintiff.

Analysis and Decision

[22] The plaintiff relies on the statement in paragraph 41 of Iannarella, supra that “w hile the surveillance films themselves remain privileged, the facts disclosed by the films do not”, and submits that this requires a defendant to disclose the particulars of surveillance at the time that the investigation reports and accompanying videos are disclosed.

[23] This submission neglects to consider the context of the quoted passage, which includes the statement in paragraph 40 of Iannarella that, after the surveillance is identified in schedule B to the affidavit of documents, “the plaintiff then has the opportunity to seek full particulars of the surveillance from the defence at examination for discovery ”. The context also includes the first sentence in paragraph 41 itself, in which the Court states that “ a person examined for discovery must . . . answer questions about the contents of the surveillance even though to do so would require the disclosure of information contained in a privileged document”. The Court then states in paragraph 45 that “the surveillance evidence can only serve to encourage settlement if it is disclosed in the affidavit of documents and the opposing party has the opportunity to seek particulars at examination for discovery ”. Further, in paragraph 54, the Court states that “it is clear that if surveillance occurs before the affidavit of documents is served, the surveillance report must be listed in the affidavit and requests for particulars must be answered at examination for discovery ”. [emphasis added throughout]

[24] Paragraph 41 of Iannarella, read together with paragraphs 40, 45 and 54, clearly contemplates that the particulars of the defendant’s surveillance be disclosed at the defendant’s examination for discovery. The passage relied upon by the plaintiff that the facts disclosed by surveillance films do not “remain privileged” simply means that they are no longer protected by privilege when disclosure is requested at the defendant’s examination. The court in paragraph 11 of Mir, supra also recognized that “ particulars [of surveillance] would ordinarily be provided through a discovery undertaking”.

[25] The Court in Iannarella did ultimately conclude that the defendants made improper use of surveillance evidence by failing to serve an affidavit of documents in which they would have been required to disclose the surveillance. As stated, the trial judge’s failure to require the defendants to comply with the Rules in relation to the disclosure of the surveillance resulted in “a form of trial by ambush”.

[26] The Court’s decision in Iannarella flowed from the defendants’ initial failure to serve an affidavit of documents disclosing the surveillance such that the plaintiff was deprived of the opportunity to request particulars at an examination for discovery. However, the Court in no way suggested that the defendants were required to provide those particulars before their own examination for discovery. The fact that the particulars of the surveillance are not privileged does not mean that the defendant must disclose them before the plaintiff is examined; it only means that the defendant must disclose them at its own examination.

[27] The plaintiff also relies on Mir v. Kandiah, supra. I question whether this decision is correct. The court’s ruling that the defendant disclose particulars of surveillance is based on rule 30.07(b), which requires a party to deliver a supplementary affidavit of documents when it discovers that the original affidavit is incomplete, but there is nothing in the decision that suggests that the defendant failed to disclose any documents. The court ordered that the defendant serve an updated affidavit of documents to include “all particulars of surveillance including the date, time and location of the surveillance together with the nature and duration of the activities depicted and the names and addresses of the videographers”. However, an affidavit of documents is only required to contain a description of documents, including the dates of those documents and the authors. Rule 30.07(b) does not contemplate an order that a supplementary affidavit of documents include the content of the documents, such as the particulars of surveillance contained in an investigator’s report.

[28] I read Mir v. Kandiah as a pragmatic attempt to enable the plaintiff to obtain particulars of surveillance, where the defendants’ counsel ignored requests for those particulars before the plaintiff set the action down, in order to avoid the “trial by ambush” described in Iannarella. Most significantly for the purpose of this motion, Mir does not say that a plaintiff is automatically entitled to the particulars of surveillance before her examination for discovery, which is what the plaintiff is seeking in this case.

[29] Based on the paragraphs from Iannarella quoted above, a defendant is required to disclose particulars of surveillance when examined for discovery. The timing of that examination and ensuing disclosure, in accordance with rule 31.04(3), depends on which party first served a sworn affidavit of documents and a notice of examination. Contrary to the submission of plaintiff’s counsel, a party’s reliance on this rule is not simply a tactical use of the rules, but rather is a means to ensure the orderly conduct of examinations for discovery. It is also reasonable that rule 31.04(3) reward the party that proceeds most promptly to serve a sworn affidavit of documents because in so doing, that party has taken a step that advances the action.

[30] A surveillance report is essentially a privileged statement of a witness containing non-privileged information on the issue of damages that is subject to disclosure at the defendant’s examination for discovery. However, non-privileged evidence contained in a privileged document is not discoverable before the examination for discovery of the party in possession of that document. That evidence may or may not be discoverable by the opposing party before that party’s own examination, depending on who first served their affidavit of documents and notice of examination.

[31] For example, a defendant in a motor vehicle negligence action might wish to know the plaintiff’s liability evidence, including the substance of privileged witness statements, before being examined, in the same way that the plaintiff seeks the particulars of the TTC’s surveillance before her examination. However, where the plaintiff has served her affidavit of documents and notice of examination first, the defendant in this example would have no right to disclosure of the plaintiff’s liability evidence before being examined, other than as contained in non-privileged documents such as police notes.

[32] Similarly, there is no reason to require disclosure of the particulars of the TTC’s surveillance other than in accordance with the order of examinations for discovery established under rule 31.04.

[33] The plaintiff also relies on paragraphs 42, 43 and 44 of Iannarella and paragraph 11 of Mir, supra to argue that early disclosure of the particulars of surveillance, before the plaintiff’s examination, will facilitate early settlement. Plaintiff’s counsel submits that knowing, for example, that a plaintiff alleging injuries had run a marathon subsequent to the subject accident, would be conducive to an early settlement of the action.

[34] The problem with this argument is that the plaintiff presumably already knows if she has run a marathon, or (as might be more commonly observed during surveillance), if she could go to work, or do her grocery shopping, or work in the garden, without learning about it from the defendant. As counsel for the TTC persuasively argues, all of the particulars of surveillance are already known to the plaintiff so it should not be to her detriment to be provided with the particulars of surveillance after she is examined.

[35] The plaintiff also submits that it would be prejudicial for her to face examination for discovery without knowledge of the particulars of surveillance because her credibility could be impeached based on those particulars. However, such impeachment would only occur if she fails to tell the truth about her post accident activities, in which case the court would be hard pressed to sympathize with her. A plaintiff who is truthful at her examination for discovery should have no fear that her evidence will compromise her credibility. Further, the plaintiff in this action knows from the defendants’ affidavits of documents that surveillance has been conducted, so she cannot be surprised if some of the discovery questions relate to the surveillance.

[36] The plaintiff also argues that under rule 31.06(1)(b), an examining party may not ask questions “directed solely to the credibility of the witness”, which would prohibit defendant’s counsel’s questions related to the surveillance. However, a plaintiff may be asked discovery questions arising from surveillance that are directed as much to the issue of the plaintiff’s post-accident condition as to credibility. The question “Have you been able to work in the garden since the accident?” is a fair enquiry as to the plaintiff’s abilities following the accident, and can only impact her credibility if she denies having done something that the surveillance reveals her doing.

[37] Further, the defendant’s counsel could choose to ask questions arising from the surveillance even if the particulars of surveillance were already disclosed to the plaintiff, so the possibility of improper questions being asked is not necessarily related to undisclosed surveillance. Finally, the court on this motion cannot assume that questions asked at examinations for discovery will be improper. The appropriateness of discovery questions may be an issue for counsel at the plaintiff’s examination for discovery, and possibly for the court on an ensuing refusals motion, but is not a reason to require disclosure of particulars of surveillance before the plaintiff is examined.

[38] The prospect of “trial by ambush”, which the Court of Appeal and the master sought to avoid in Iannarella and Mir respectively, is not a concern in this case. There will be no trial by ambush where the TTC has agreed to provide full disclosure of particulars of surveillance at its representatives’ examinations for discovery, to be held shortly after the plaintiff’s examination, and long before trial.

[39] My conclusion on this issue is similar to that in Hallock v. Hothi, supra, in which Aston J. concluded that the plaintiff was entitled to know the particulars of surveillance before trial but not before her examination for discovery was completed, unless she was the first to serve a notice of examination under rule 31.04(3). In paragraph 10 of Hallock, Aston J. also leaves open the possibility of a plaintiff asking the court to “order otherwise” under rule 31.04(3) to enable the plaintiff to obtain disclosure of particulars of surveillance before her own examination is commenced and completed.

[40] The presumptive rule is that the party that first serves a notice of examination in compliance with rule 31.04 has the right to examine first. The Court of Appeal in Iannarella contemplates that particulars of surveillance be disclosed at the defendant’s examination for discovery, which could be held before or after the plaintiff’s examination, depending on the parties’ compliance with rule 31.04. Where the TTC has properly disclosed the surveillance reports in a sworn affidavit of documents served on the plaintiff, and was first to serve a notice of examination, there is no basis to “order otherwise” under rule 31.04(3).

[41] For these reasons, the plaintiff’s motion is dismissed and the TTC’s motions are granted. The plaintiff shall attend to be examined for discovery in accordance with the TTC’s notices of examination, before the TTC’s representatives are examined. The TTC may complete its examination of the plaintiff before its representatives are examined, and it need not disclose the particulars of surveillance until those representatives’ examinations.

Costs

[42] Counsel for both parties filed costs outlines at the conclusion of the hearing. If the parties cannot agree on the disposition of the costs of the motion, they may make written submissions, the defendant TTC within 30 days, and the plaintiff within 20 days thereafter. I will retain the file pending receipt of costs submissions. If the parties resolve the issue of costs, they should inform the court.

[43] I thank both counsel for their able submissions.

December 18, 2018 MASTER GRAHAM