Court File and Parties
COURT FILE NO.: 56054/15 (St. Catharines) DATE: 20200709 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DALI LONGO, LUCY LONGO, GIUSEPPE LONGO, JANA LONGO and JARRETT LONGO Plaintiffs – and – TRICOM SECURITY SERVICES INC., 20 VIC MANAGEMENT INC., CHRISTOPHER BOBKO and ERICA THIESSEN Defendants
Counsel: Owen Wigderson, for the moving parties, Lucy Longo and Giuseppe Longo Chet Wydrzynski and Renata Antoniuk, for the Defendants Tara Pollitt, for the Third Party, Niagara Regional Police Service
HEARD: June 25, 2020, by videoconference
R. A. LOcoco J.
REASONS FOR Decision
I. Introduction
[1] A security video is a key item of documentary evidence in this civil assault action. Defence counsel provided the video to plaintiffs’ counsel prior to delivery of the defendants’ Affidavit of Documents, after asking the plaintiffs to consider adding a police force as a further party defendant (later added as a third party). Two of the plaintiffs seek to use the video to pursue a criminal prosecution against the individual defendants and an officer of the third party.
[2] This motion relates to the application of the deemed undertaking rule to the video. Where it applies, the deemed undertaking rule limits litigation parties and their lawyers from using for collateral purposes evidence or information obtained in the discovery process prior to trial: see Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 30.01.
[3] The moving parties say the deemed undertaking rule does not apply to the video. They say the video’s disclosure was voluntary and not by compulsion. In the alternative, the moving parties say it would be in the interest of justice to relieve them from the rule’s application to allow them to pursue a criminal investigation.
[4] The defendants disagree. They say the deemed undertaking rule applies, since the video was provided to the plaintiffs in accordance with the Rules of Civil Procedure as part of the pre-trial disclosure process. They also say it would not be in the interest of justice to relieve the moving parties from the rule’s application in all the circumstances, including the prejudice that would result from granting that relief.
[5] The matters to be determined are therefore as follows:
a. Application of deemed undertaking rule: Does the deemed undertaking rule apply to the video?
b. Relief from deemed undertaking rule: If deemed undertaking rule applies, would it be in the interest of justice to relieve the moving parties from the rule’s application?
[6] For the reasons below, I have decided that the deemed undertaking rule applies to the video. I have also decided that it is not in the interest of justice to relieve the moving parties from the rule’s application. Accordingly, I am dismissing the motion.
[7] In the balance of theses reasons, I will set out the factual background and review the applicable legal principles. I will then address each of the above matters in turn.
II. Factual background
[8] On August 26, 2013, the plaintiff Dali Longo, a 22-year-old university student, was detained in the parking lot of a shopping plaza in St. Catharines. The incident was captured on a security video (which does not include an audio recording). The video is the property of the defendant 20 Vic Management Inc., the plaza manager. The video shows the defendants Christopher Bobko and Erica Thiessen approaching Dali Longo and, after verbal interaction, forcibly detaining him. Mr. Bobko and Ms. Thiessen (sometimes referred to in these Reasons as the security guards) were security guards employed by the defendant Tricom Security Services Inc. Tricom Security provided security services for the shopping plaza under a contract with 20 Vic Management.
[9] The video also shows that a police officer with Niagara Regional Police Services became involved in Mr. Longo’s detention. The police officer then issued a Certificate of Offence to Mr. Longo under the Trespass to Property Act, R.S.O. 1990, c. T.21, alleging the offence of failing to leave the premises when directed.
[10] In support of the moving parties’ motion, Lucy Longo provided an affidavit with respect to events subsequent to August 2013. She was not cross-examined on the affidavit. She deposed that she and her husband Giuseppe noticed a negative change in their son Dali, “physically, mentally, and emotionally,” but they did not know what caused the change. In October 2013, Dali withdrew from university and returned to live with his parents in Sault Ste. Marie. In about April 2014, Dali first told them of being beat up by security guards, but was unable or unwilling to discuss the incident, becoming very upset and agitated when questioned about it.
[11] On August 21, 2015, Dali Longo, his parents and his siblings commenced this civil action against the defendants. In the Statement of Claim, the plaintiffs plead that the security guards assaulted Dali Longo, causing him serious injury. The plaintiffs also plead that the defendants Tricom Security and 20 Vic Management were vicariously liable for actions of the security guards.
[12] The defendants defended the action by Statement of Defence dated May 27, 2016. The defendants issued a third party claim against Niagara Police on August 17, 2017, seeking contribution and indemnity. The third party claim was served on Niagara Police in June 2018. Niagara Police defended the third party claim and the main action.
[13] By letter to defence counsel (Mr. Martin) dated October 31, 2016, plaintiffs’ then-counsel (Mr. Richard) requested “a copy of the security video(s) and any other recordings” relating to the incident at the shopping plaza. Along with that letter, Mr. Richard provided Mr. Martin with copies of several documents relating to Dali Longo, including medical treatment records and his university file.
[14] In an email dated August 14, 2017, Mr. Martin’s law clerk advised Mr. Richard that after reviewing video footage of the incident, the defendants wanted to advance a third party claim against Niagara Police, noting that the limitation period was expiring shortly. (A few days later, the defendants issued but did not immediately serve the third party notice, as noted above). Mr. Martin deposed that on August 14, 2017, he also had a telephone conversation with Mr. Richard, in which Mr. Martin described the contents of the video, which had not been previously disclosed to the plaintiffs. Mr. Martin asked if the plaintiffs would consider adding Niagara Police as a defendant to the action. Mr. Richard asked to see the video before a decision was made. Mr. Martin also deposed that he advised Mr. Richard that he intended to include the video in Schedule “A” of the defendants’ Affidavit of Documents but would produce it immediately to “streamline the litigation process”. In support of his recollection, Mr. Martin provided a handwritten note of the conversation, which included the following notation: “CCTV will be in AOD - ‘A’.”
[15] By letter dated August 15, 2017, Mr. Martin’s law clerk provided Mr. Richard with a copy of the video and also requested other documents relating to Dale Longo, including further medical, school and tax records. By email dated November 3, 2017, Mr. Richard advised Mr. Martin’s law clerk that the plaintiffs would not be adding Niagara Police as a defendant in the main action.
[16] Lucy Longo and Mr. Richard both deposed that sometime in November 2017, Dali’s parents went to Mr. Richard’s office to watch the video. In her affidavit, Lucy Longo indicated that until seeing the video, she and her husband had not realized the full extent of what had occurred. They instructed Mr. Richard to pursue criminal charges against the security guards and the police officer.
[17] Mr. Richard deposed that lacking experience in criminal law matters, he spoke to a former police officer who worked as a private investigator for his firm and advised him of the contents of the video, leaving it to him to inquire as to the process of commencing a criminal investigation. The private investigator made inquiries of a member of Niagara Police, who notified the Special Investigations Unit (SIU). [1] The SIU in turn contacted Mr. Richard.
[18] In December 2017, Mr. Richard met with members of the SIU and played the video for them. Later that month, the SIU Director wrote to the Chief of Niagara Police, advising that the SIU had terminated its investigation into the Dale Longo incident noting that “the video evidence establishes that the serious injury was not caused by police conduct.” [2] The letter also states that the police officer’s conduct “may have been unwarranted and unjustified.”
[19] On January 5, 2018, a Niagara Police inspector wrote to Mr. Richard, advising him that his firm’s private investigator had contacted the inspector about the possibility of initiating a criminal investigation into the shopping centre incident. The letter advised that it would be a conflict of interest for Niagara Police to conduct the investigation, and that the writer had been obliged to notify the SIU. The letter further advised that if Mr. Richard’s client wished to pursue a criminal investigation, the request should be submitted in writing and arrangements would be made to have the matter investigated by an external police service. Mr. Richard deposed that no such written request was made, based on his understanding that such an investigation could only be commenced if Dali Longo were able to give a meaningful statement to police, which he knew was not possible.
[20] On January 15, 2018, the Niagara Police inspector wrote to defence counsel (Mr. Martin) to request a copy of the security video in order to review the conduct of the Niagara Police officer involved in the incident. The letter noted that consent was required to obtain the video, since there were no search warrant powers under the Police Services Act with respect to a police misconduct investigation. No consent was given. The video was not provided to Niagara Police.
[21] In December 2018, the plaintiffs hired new counsel of record to replace Mr. Richard. Plaintiffs’ new counsel referred Lucy Longo and Giuseppe Longo to a criminal lawyer as special counsel to pursue a criminal prosecution against the security guards and police officer involved in Dale Longo’s detention.
[22] Giuseppe Longo’s examination for discovery took place in 2018, but discoveries of the other the plaintiffs have not yet occurred. Those examinations are currently scheduled for November 2020.
[23] On April 1, 2019, the defendants served their Affidavit of Documents. The video was listed in Schedule “A” of the defendants’ Affidavit of Documents as a non-privileged document.
[24] Examinations for discovery of the defendants and Niagara Police were held in July 2019. During their examinations, the defendants responded to questions about the contents of the video and its production.
[25] Lucy Longo and Giuseppe Longo (through special counsel) subsequently brought this motion relating to the deemed undertaking rule’s application to the video.
III. Legal principles – deemed undertaking rule
[26] The courts developed the deemed undertaking rule at common law to limit the extent to which litigation parties and their lawyers may use for other purposes evidence or information obtained in the litigation prior to trial. Where it applies, the rule is intended to prevent the parties to whom documents are produced from using them “for a collateral or ulterior purpose” except with the other party’s consent or the court’s leave: see Goodman v. Rossi (1995), 24 O.R. (3d) 359 (C.A.).
[27] Rule 30.1 codifying the deemed undertaking rule in Ontario was adopted in 1996. As set out in r. 30.1.01(3):
(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.
[28] Rule 30.1.01(1) sets out the categories of evidence and information that are subject to the deemed undertaking, consisting of evidence (including derivative information) obtained under the following rules: r. 30 (documentary evidence), r. 31 (examination for discovery), r. 32 (inspection of property), r. 33 (medical examination), and r. 35 (written examination for discovery). The deemed undertaking rule does not apply to evidence or information otherwise obtained: r. 30.1.01(2).
[29] Rule 30.1.01 also sets out other exceptions to the application of the deemed undertaking rule, including:
a. The use of evidence or information with the disclosing party’s consent: r. 30.1.01(4); and
b. The use of evidence (including derivative information) filed with the court or given or referred to during a hearing: r. 30.1.01(5).
[30] Under r. 30.1.01(8), the court has the discretion to relieve from the rule’s application, upon “such terms and ... directions as are just.” The court may do so if satisfied that “the interest of justice outweighs any prejudice that would result to a party who disclosed evidence”.
[31] In Kitchenham v. AXA Insurance Canada, 2008 ONCA 877, 94 O.R. (3d) 276, at paras. 1 and 30, the Ontario Court of Appeal addressed the rationale for the deemed undertaking rule, as follows:
Civil litigants are compelled in the discovery process to disclose information to their opponents. Forced disclosure can compromise a litigant's legitimate interest in maintaining the confidentiality of documents and information. However, interference with that privacy interest is justified as essential to a fair and accurate resolution of the litigation…. In Ontario, the deemed undertaking, created by Rule 30.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, protects privacy interests by controlling the use of information outside of the litigation in which it was obtained by way of compelled disclosure.
The implied undertaking promotes the due administration of justice in the conduct of civil litigation in two ways. First, it encourages full and frank disclosure on discovery by the parties. It does so by interdicting, except with the court's permission, the subsequent use of the disclosed material by the party obtaining that disclosure for any purpose outside of the litigation in which the disclosure was made. Second, the implied undertaking accepts that the privacy interests of litigants must, subject to legitimate privilege claims, yield to the disclosure obligation within the litigation, but that those interests should be protected in respect of matters other than the litigation…. [Citations omitted.]
[32] The rationale for the deemed undertaking rule was considered in similar terms by the Supreme Court of Canada in Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157. In that case, the Attorney-General of British Columbia sought disclosure of discovery transcripts from a civil action for use in an ongoing criminal investigation. The civil action settled prior to trial. The contents of the transcripts had not been disclosed in open court. The examined party (who was the subject of the criminal investigation) opposed disclosure of the transcripts, relying on the common law deemed undertaking rule. In Juman, at paras. 3 and 20, the Supreme Court describes the rule’s rationale as follows:
The rationale of the implied undertaking rule rests on the statutory compulsion that requires a party to make documentary and oral discovery regardless of privacy concerns and whether or not it tends to self-incriminate. The more serious the criminality, the greater would be the reluctance of a party to make disclosure fully and candidly, and the greater is the need for broad protection to facilitate his or her cooperation in civil litigation.
The root of the implied undertaking is the statutory compulsion to participate fully in pre-trial oral and documentary discovery. If the opposing party seeks information that is relevant and is not protected by privilege, it must be disclosed even if it tends to self-incrimination.
[33] In Juman, at para. 5, the Supreme Court also notes that the scope of the deemed undertaking rule goes beyond protection of the examined party against self-incrimination and “includes the wrongdoing of persons other than the examinee and covers innocuous information that is neither confidential nor discloses any wrongdoing at all.”
[34] In Juman, at para. 32, the Supreme Court also provides guidance with respect the criteria to be applied on a motion for relief from the deemed undertaking rule, as follows:
An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation….What is important in each case is to recognize that unless an examinee is satisfied that the undertaking will only be modified or varied by the court in exceptional circumstances, the undertaking will not achieve its intended purpose.
[35] In Kitchenham, the Ontario Court of Appeal also addressed the criteria to be applied on a motion under r. 31.1.01(8) to permit disclosure of evidence or information otherwise subject to the deemed undertaking rule. The Kitchenham decision is referred to further below under “Relief from the deemed undertaking rule”.
IV. Application of deemed undertaking rule
[36] Does the deemed undertaking rule apply to the video?
[37] The moving parties say that the deemed undertaking rule does not apply to the video. They say that given the circumstances in which the video was provided to plaintiffs’ counsel, its disclosure was voluntary and not pursuant to a compulsory requirement.
[38] The moving parties say that in those circumstances, the deemed undertaking rule would apply only if the disclosing and receiving parties agreed that it would. The evidence does not support the existence of such an agreement in this case, according to the moving parties. In support of that position, they rely on (among other things) (i) Mr. Martin’s failure in the video’s transmission letter to plaintiff’s former counsel to refer to any agreement about the deemed undertaking rule applying or the intention to list the video in the defendants’ Affidavit of Documents, and (ii) Mr. Martin’s failure to take any action against the plaintiffs’ former counsel when he learned that the video had come to the police’s attention.
[39] I am not persuaded by the moving parties’ analysis.
[40] There is no dispute that the video is relevant evidence in the plaintiffs’ assault action. Therefore, disclosure of the video to the plaintiffs was required in accordance with r. 30 relating to pre-trial disclosure of documents. As set out in r. 30.02(1), relevant documents in a party’s possession, control or power must be disclosed in the party’s Affidavit of Documents as provided in rr. 30.03 to 30.10 (which includes an ongoing obligation to update and correct). The video was in fact listed as a non-privileged document in Schedule “A” of the defendants’ Affidavit of Documents (provided in April 2019), as required by r. 30.03.
[41] The moving parties say that the video was provided to plaintiff’s counsel for tactical reasons (some 19 months before it was listed in the defendants’ Affidavit of Documents) in order to persuade the plaintiffs to name Niagara Police as a defendant in the main action. If the plaintiffs had done so, they would have assumed the costs risk of an unsuccessful action against Niagara Police, which the defendants would otherwise assume by making a third party claim. In those circumstances, the video was provided voluntarily rather than pursuant to a compulsory requirement, with the result that the deemed undertaking rule does not apply.
[42] Assuming the moving parties are correct about the defendants’ motivation in providing the plaintiffs with the video at that time, the fact remains that the defendants were required to disclose the video to the plaintiffs pursuant to their pre-trial document disclosure obligations under r. 30. As part of that process, they were required to disclose the existence of video (r. 30.03) and to produce it for inspection if requested to do so (r. 30.04).
[43] Some nine months prior to receiving the video, plaintiffs’ counsel in fact requested “a copy of the security video(s) and any other recordings” relating to the incident (apparently without knowing about the existence of that specific security video). That request was made in correspondence relating to the exchange of relevant documents between the parties as part the pre-trial document disclosure process. On the evidence, that process was ongoing well before formal delivery of the Affidavit of Documents (as is often the case in civil proceedings) and included contemporaneous delivery of Dale Longo’s medical records to defence counsel.
[44] If the moving parties are correct that the deemed undertaking rule does not apply to the video, it arguably follows that the rule does not apply to Dale Longo’s medical records either. As defence counsel noted in his submissions, it would be illogical to suggest that the defendants were free to use Dale Longo’s medical records as they saw fit prior to trial in breach of his privacy rights based on the timing of the documents’ disclosure during the pre-trial disclosure process. As well, such an interpretation would not be consistent with the deemed undertaking rule as it developed at common law, which was not specifically tied to the delivery of an affidavit of documents. Consistent with Kitchenham, at paras. 28-32, the deemed undertaking rule as it existed prior to its codification in 1996 provides useful guidance in interpreting the rule as it currently exists since r. 30.1 came into effect.
[45] In all the circumstances, I am satisfied that the deemed undertaking rule applies to the video. In my view, the timing of a particular document’s disclosure during the disclosure process (including the motivation for producing or requesting production of a document at one time rather than another) is not a determining factor as to whether the deemed undertaking rule applies to the document. To find otherwise would not be consistent with the “efficient conduct of civil litigation” (see Juman, at para. 32) or the just and expeditious determination of civil proceedings on their merits (see r. 1.04(1)).
[46] Given my conclusion that the video was provided in accordance with a compulsory requirement, the issue of whether there was an agreement between counsel that the deemed undertaking applied to the video becomes moot. If the video was disclosed under compulsion, the deemed undertaking rule applied, whether or not counsel expressly agreed that it did. In any case, the evidence taken as a whole (including Mr. Martin’s handwritten note of his conversation with plaintiffs’ former counsel) is consistent with the defendants’ position from the outset that the deemed undertaking rule to applied to the video (a position I consider well founded). In these circumstances, there was no reason for Mr. Martin to consider whether or not there was an express agreement as to the rule’s application or to take positive steps to confirm that the rule applied.
V. Relief from deemed undertaking rule
[47] Would it be in the interest of justice to relieve the moving parties from the deemed undertaking rule?
[48] Where the deemed undertaking rule would otherwise apply to compelled evidence that a party has disclosed (or derivative information), the court has the discretion under r. 30.1.01(8) to order that the rule does not apply to the evidence or information if satisfied that “the interest of justice outweighs the prejudice that would result to a party who disclosed evidence”. For the court to exercise its discretion, the applicant has the burden of demonstrating on a balance of probabilities that the interest of justice would prevail over prejudice to a disclosing party if the evidence or information is disclosed: Juman, at para. 32.
[49] The moving parties say that the interest of justice in pursuing a criminal investigation into the conduct of the security guards and the police officer outweighs any prejudice to 20 Vic Management, the party that owns the video and was required to disclose it to the plaintiffs. They say the video is the only real evidence of what happened at the shopping plaza, since Dale Longo is unable to give a meaningful account to police. Without the video, there would be no criminal investigation, with the result that the interest of justice in investigating and prosecuting criminal conduct would not be served.
[50] The moving parties also say that the interests of 20 Vic Management would not be adversely affected by the video’s disclosure to police. 20 Vic Management’s interest in the video was proprietary only and would not expose them to criminal jeopardy if provided to the police. The moving parties say that the privacy (or other) interests of the other parties to the litigation are not relevant considerations with respect to the balancing of interests under r. 30.1.01(8). To support their position, they rely on the Ontario Court of Appeal decision in Kitchenham.
[51] In order to analyze the moving parties’ position, I find it useful consider the Kitchenham decision in some detail. In Kitchenham, the plaintiff was injured in a motor vehicle accident. She brought a tort action against the other party involved in the accident and also brought a separate accident benefit action against her own insurer. As part of pre-trial disclosure in the tort action, the tort defendant provided the plaintiff with a report relating to an independent medical examination (IME) of the plaintiff (as required under r. 33.06) and a surveillance video of the plaintiff’s activities after the accident. The tort action settled. The IME report and the surveillance video did not become part of the public record in the tort action.
[52] During her examination for discovery in the accident benefit action, the plaintiff refused to produce the IME report and the surveillance video to the benefits insurer on the basis that she was precluded from doing so by the deemed undertaking rule. The benefits insurer sought a court order to require production. On appeal from the motion judge’s decision, the Divisional Court held that the deemed undertaking rule applied to the IME report and the video, with the result that the plaintiff was precluded for disclosing them to the insurer in the accident benefit action except pursuant to a court order under r. 30.1.01(8): Kitchenham, at para 8. The benefits insurer obtained leave to appeal that decision to the Court of Appeal, and separately brought a motion in Superior Court under r. 30.1.01(8) to require production of the IME report and the video. In the Court of Appeal’s decision on the original motion, the court expressed disagreement with some of the Divisional Court’s reasoning, but nonetheless upheld the Divisional Court’s decision. The Court of Appeal also went on to provide guidance on the balancing exercise required to make a decision on a motion under r. 30.1.01(8), which was then the subject of a separate appeal and was not before the Court of Appeal on the appeal from the original motion decision.
[53] In its decision upholding the Divisional Court, the Court of Appeal disagreed with the Divisional Court’s conclusion that the IME report and the video were protected from disclosure by the deemed undertaking rule “irrespective of which party was the discloser or recipient of the information” (at para. 24). In paras. 25-46, the Court of Appeal instead concluded that “the party who disclosed the evidence through the compelled discovery process is the exclusive beneficiary of the protection afforded by the deemed undertaking” (at para. 38). To support that conclusion, the court relied on “the rationale for the Rule, the language of the Rule, and this court's jurisprudence” (at para 46).
[54] In coming to its conclusion that the disclosing party was the “exclusive beneficiary” of the deemed undertaking, the court referred to the balancing exercise that the court is required to undertake in r. 31.1.01(8) when deciding whether evidence or information should be disclosed. In that context, the court noted that it is necessary to weigh the interest of justice against any prejudice would result to the party that disclosed the evidence. In the words of the decision (at para. 38), “[i]t is that party's privacy interests that can justify restriction on the use of information obtained through discovery outside of the litigation in which that information was obtained”. Later in the decision, when providing guidance on the operation of r. 31.1.01(8), the court states as follows (at para. 58):
The interests of the party who was compelled to disclose the information are the only interests that can justify maintaining the undertaking. My reading of [r. 31.1.01(8)] is consistent with an interpretation of the Rule that recognizes the party who gave up the information as the sole beneficiary of the protection afforded by the Rule. It is also consistent with [r.31.1.01(4)], which provides that the deemed undertaking has no application if the party who disclosed the evidence consents to its use. [Emphasis added.]
[55] Applying that principle, the Court of Appeal indicates that on the r. 31.1.01(8) motion, the only prejudice that the motion judge would be able to consider in that case would be prejudice to the tort defendant, who was compelled to provide the video and the IME report to the plaintiff as part of the disclosure process in the tort action. The court states (at para. 58) that the privacy or other interest of the plaintiff (who was the subject of the IME report and the surveillance video and objected to its disclosure) “have no place in the exercise of the discretion contemplated in [r. 31.1.01(8)].” The court also notes (at para. 63-64) that the tort defendant (being the deemed undertaking’s intended beneficiary) would not be adversely affected by disclosure of the evidence and had no interest in resisting its disclosure. At para. 65, the court concludes as follows:
Where the interests of the party protected by the deemed undertaking would not be adversely affected by the use of the material, and assuming the material has relevance in the subsequent proceeding, the interest of justice would inevitably outweigh any resulting prejudice to the party who had disclosed the evidence.
[56] The moving parties rely on the Court of Appeal’s analysis in Kitchenham to support their position that in conducting the balancing exercise required in r. 31.1.01(8), the interest of justice in bringing the security guards and the police officer to justice clearly prevail, given the absence of any jeopardy to the disclosing party, 20 Vic Management.
[57] Once again, I do not find the moving parties’ analysis persuasive.
[58] As a preliminary matter, it worth noting that in Kitchenham, the party resisting collateral use of the compelled evidence was its recipient (clearly not the beneficiary of the deemed undertaking), rather than a party that was required to disclose the video (the situation in the motion before me). In Kitchenham, the evidence recipient (the injured plaintiff) sought to use the deemed undertaking rule as a shield to prevent collateral use of the evidence. On the motion before me, the evidence recipients (Mr. and Mrs. Longo) are seeking to vary the deemed undertaking rule to allow collateral use of the evidence. The situation in this case is therefore not analogous to the one in Kitchenham, warranting caution in selectively relying on aspects of the court’s decision.
[59] That being said, I accept Kitchenham as binding authority that when conducting the balancing exercise on a r. 30.1.01(8) motion, the court is required to consider prejudice to the party that disclosed the compelled evidence rather than the party that received it. What I do not accept is that there would be no prejudice to 20 Vic Management from the video’s disclosure to the police.
[60] I agree with the moving parties that unlike the security guards, 20 Vic Management would not itself be in criminal jeopardy from the contents of the security video. However, as indicated in Juman, at para. 5, the scope of the deemed undertaking rule goes beyond protection against self-incrimination. The plaintiffs have brought a civil action against 20 Vic Management along with the other defendants based on the security guards’ alleged assault against Dali Longo. The plaintiffs plead that 20 Vic Management and Tricom Security are both vicariously liable for the security guards’ actions. All the defendants have made common cause in defending the action, using the same legal counsel. Defence counsel provided the video to plaintiffs’ counsel as part of the pre-trial document disclosure process. In my view, as explained further below, all the defendants have a common interest in avoiding the prejudicial consequences of disclosure of the video for purposes of a criminal investigation while the civil action proceeds to trial.
[61] Defence counsel expressed concern that if the requested order is made, the plaintiffs would be able to use a resulting criminal investigation as leverage in the civil action, including in any settlement discussions. As a result, all the defendants would be prejudiced by the requested order, according to defence counsel.
[62] While the moving parties dismiss that consideration as speculative and irrelevant to the court’s balancing exercise, previous decisions have recognized that the tactical implication of a concurrent criminal investigation is a relevant factor when considering whether the court should permit disclosure of compelled pre-trial disclosure to police. In Juman, at para 43, the Supreme Court recognized that "parties to civil litigation are often quick to see the supposed criminality in what their opponents are up to, or at least to appreciate the tactical advantage that threats to go to the police might achieve” (emphasis added). As well, in 755568 Ontario Ltd. v Linchris Homes Ltd. (1990), 1 O.R. (3d) 649 (Gen. Div.), at p. 656, in the absence of evidence of the plaintiff’s reasons for seeking a police investigation, the court drew the “reasonable inference … that the plaintiff hopes the police will find additional information which will assist its action or that the police investigation will force the defendants to offer to settle this matter.”
[63] In this case, Lucy Longo has provided an unchallenged explanation for seeking a police investigation (which I accept), that is, the moving parties’ desire to have the security guards and the police officer held criminally responsible for the forcible detention of their son as depicted in the video. However, in my view, the absence of an ulterior motive in seeking disclosure for that purpose does not ameliorate the prejudice to the disclosing party that would result from a concurrent criminal investigation. I agree with defence counsel that resulting mischief would arise from the plaintiffs’ potential use of the criminal investigation as leverage in the civil action, including in any settlement discussions. As moving parties’ counsel noted, possible criminal law consequences to the plaintiffs would limit the extent to which they would be able to exercise leverage against the defendants with respect to settlement of the civil action. As well, once a criminal investigation is underway, settlement of the civil action would not guarantee termination of any criminal investigation or proceedings. Nonetheless, the courts have recognized the real prejudice to a defendant resulting from pressure to settle a civil action in the face of a concurrent criminal investigation: see Linchris, at p. 656. While 20 Vic Management would not itself be in criminal jeopardy as a result of the concurrent criminal investigation, 20 Vic Management (along its co-defendants) would suffer prejudice with respect to the conduct of the civil action, as outlined above.
[64] In light of that conclusion, does the interest of justice outweigh the resulting prejudice to the disclosing party?
[65] The moving parties say that there is a clear public interest in pursuing a criminal investigation into the conduct of the security guards and the police officer with a view to hold them criminally accountable for their actions. Without the video, there will be no investigation. They also say that pursuing the investigation is of particular interest in the current environment, in which law enforcement conduct is subject to heightened scrutiny.
[66] The moving parties also note that if the civil action goes to trial, the video would clearly be relevant evidence that would come before the court. At that point, the moving parties would be free to provide the video to police without running afoul of the deemed undertaking rule: see r. 31.1.01(5). They say the interest of justice would clearly be served by the timely investigation and (if warranted) criminal prosecution of the security guards and the police officer, rather waiting until after a civil trial that may never occur.
[67] I accept that the interest of justice includes the investigation of potential criminal conduct. However, as is clear from the case law relating to the implied undertaking rule, that consideration alone is not determinative. As noted in Linchris, at p. 656, the “public interest in investigating possible crimes is not per se a sufficient ground to relieve counsel of his or her implied undertaking to keep such information private”. On a r. 31.1.01(8) motion, that public interest is subject to a “balancing exercise” and “will not always … prevail over other interests”: see Juman, at para. 48.
[68] In the circumstances of this case, I have concluded that the moving parties have not met the burden of demonstrating that the public interest in pursuing a criminal investigation outweighs the prejudice to the disclosing party.
[69] In reaching that conclusion, I considered the moving parties’ submission that without the video, they would not be able to pursue a criminal investigation, since it was not possible for Dali Longo to give meaningful statement of what happened to police. In support of that position, the moving parties rely on the evidence of Lucy Longo and Mr. Richard, which indicate that as a result of what happened, Dali Longo was unable to give a meaningful account of events.
[70] Defence counsel challenged that position, noting that the motion record did not include any medical evidence as to Dali’s medical condition or the treatment he received. In response, moving parties’ counsel argued that as a matter of fairness, the defendants should not be able to rely on the absence of medical evidence to challenge the sworn testimony of Lucy Longo and Mr. Richard, given in particular the defendants’ failure to cross-examine Lucy Longo on her affidavit. They cite the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) to support their position.
[71] Assuming the rule in Browne v. Dunn applies in these circumstances, it would not relieve the moving parties from providing the necessary evidence to establish the factual basis for the order they are seeking. The moving parties assert Dali Longo’s inability to provide a meaningful statement to police as a key component of their argument that the interest of justice requires the disclosure of the video to police. I agree with defence counsel that in the circumstances of this case, something more than the sworn statements of the injured party’s mother and his former lawyer would be necessary to provide the evidentiary basis for that assertion. In the context of a personal injury action that has been going on for some time, I assume that supporting medical evidence would be available. It was not included in the motion record.
[72] In reaching my conclusion, I also considered the moving parties’ submission that the eventuality of the video’s public disclosure if the civil action goes to trial supports the immediate release of the video to police to permit a timely investigation and (if warranted) prosecution. It is now coming up to seven years since Dali Longo’s forcible detention at the shopping plaza. The civil action has been ongoing for almost five years. I agree with moving parties’ counsel that it would not be fair to blame the moving parties for all (or even any) of the delay in bring this motion. However, in my view, the passage of time militates against relieving the moving parties from the deemed undertaking rule in all the circumstances, including the resulting prejudice from doing so.
[73] As the Supreme Court indicated in Juman, at para. 32, in order for the deemed undertaking to achieve its intended effect, it should “only be modified or varied by the court in exceptional circumstances”. I am not satisfied that exceptional circumstances have been established in this case.
VI. Disposition
[74] For the forgoing reasons, the moving parties’ motion is dismissed.
[75] If the parties are unable to agree on costs, the defendants may serve and file brief written submissions (not to exceed three pages) together with a costs outline within 21 days. The moving parties may respond by brief written submissions within a further 14 days. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.
R. A. Lococo J.
Released: July 9, 2020
COURT FILE NO.: 56054/15 (St. Catharines) DATE: 20200709 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: DALI LONGO, LUCY LONGO, GIUSEPPE LONGO, JANA LONGO and JARRETT LONGO Plaintiffs - and – TRICOM SECURITY SERVICES INC., 20 VIC MANAGEMENT INC., CHRISTOPHER BOBKO and ERICA THIESSEN Defendants REASONS FOR DECISION R. A. Lococo J. Released: July 9, 2020
[1] Under s. 113(5) of the Police Services Act, R.S.O. 1990, c. P.15, the SIU’s Director may, on his or her own initiative, cause investigations to be conducted into the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers.
[2] See footnote 1.