DATE: 2020 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RASHID ALI SYED
A. Fabio Longo and James Armstrong, for the Plaintiff
Plaintiff
- and -
DEREK JAMES PETRIE
Defendant
Lori Visconti and Nicholas A. Papas, for the Defendant
HEARD: January 10, 2020
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] This matter was scheduled to proceed to trial before a jury on January 10, 2020. Prior to the commencement of trial, the Plaintiff brought a motion to exclude recent surveillance served on January 3, 2020 and January 6, 2020, or in the alternative, for an adjournment of at least 3 months in order to review the surveillance with his client and his experts. In the midst of argument, defence counsel disclosed that they intended to serve a further affidavit of documents that would list, in Schedule B, a further background investigation report. They indicated they did not intend to rely on it at trial. Accordingly, the surveillance motion was adjourned to January 10, 2020 to allow more material to be filed. My decision was released on January 10, 2020, with reasons to follow. These are those reasons.
[2] It was agreed at the outset of argument that I would not rely on certain paragraphs in the responding affidavit of Adam R. Giel, sworn January 9, 2020, namely paragraphs 7, 15, 16 and 18 to 23.
Issues
[3] The issues to be decided were as follows:
a) Does the Defendant need leave to rely on the most recent surveillance reports at trial?
b) Should the most recent surveillance reports be excluded?
c) If not, is the Plaintiff entitled to an adjournment in order to review the most recent surveillance?
d) For what purpose are the recent surveillance reports being admitted? and
e) Is the Plaintiff entitled to an adjournment in order to seek particulars of a background investigation report, which has not yet been disclosed or listed in an Affidavit of Documents.
Background
[4] This action involves a motor vehicle accident that occurred on June 19, 2008. Liability and damages remain in dispute.
[5] Surveillance has been conducted on the Plaintiff since 2009 and many reports prepared accordingly. On February 2, 2016, the Plaintiff produced to the Defendant the following:
a) A report dated December 23, 2009 containing surveillance for December 16, 17, and 19, 2009;
b) A report dated July 17, 2012 containing surveillance for June 27 and 28, 2012 and July 5, 6, 7, 10, and 11, 2012;
c) A report dated August 7, 2012 containing surveillance for July 27, 2012 and August 1, 2012;
d) A report dated August 26, 2013, containing surveillance for May 3 and 4, 2013; July 18 and 23, 2013; and August 7, 19, and 21, 2013;
e) A report dated October 3, 2013 containing surveillance for September 24, 25, 26, and 27, 2013;
f) A report dated September 24, 2014 containing surveillance for September 5, 6, 15, 16, and 17, 2014;
g) A report dated September 30, 2014 which was an addendum to the report of September 24, 2014; and
h) A report dated May 25, 2015 containing surveillance for April 23, 27, 28, and 29, 2015 and May 5, 2015.
[6] The Defendant also produced the following reports on May 17, 2017:
a) A report dated October 3, 2016 contained surveillance for September 27, 28, and 30, 2016; and
b) A report dated November 28, 2016 contained surveillance for November 23, 25 and 26, 2016.
[7] On July 12, 2018, the Defendant produced a report dated February 21, 2018 containing surveillance for February 6, 7, 8, 9 and 10, 2018.
[8] On September 11, 2018, the Defendant produced the following:
a) A report dated October 4, 2016 containing surveillance for September 12, 13, and 14, 2016; and
b) A report dated January 16, 2018 contained surveillance for December 12, 13, and 14, 2017.
[9] The trial in this matter was scheduled to start on January 6, 2020. On January 1, 2020, Plaintiff’s counsel wrote to Defendant’s counsel and asked for confirmation that they had been served with all surveillance on which the Defendant intended to rely. The Plaintiff had already prepared his witnesses based on the surveillance in their possession. They also asked whether there were other occasions for which a report had been prepared and not yet provided.
[10] In response, on January 3, 2020, the Defendant served a surveillance report dated December 26, 2019, which contained surveillance from December 19, 20 and 21, 2019 (“December 2019 Report”). The Defendants indicated that they received it from their investigator on January 2, 2020. They waived privilege over the report and turned it over to the Plaintiff the next day.
[11] On or about January 5, 2020, a further surveillance report dated January 3, 2020 was received by the Defendant. The Defendant waived privilege on the report immediately and provided it to Plaintiff’s counsel by e-mail. An actual copy of the video surveillance was provided to the Plaintiff on January 6, 2020. This latter report contained surveillance from December 30 and 31, 2019 and January 2, 2020 (“January 2020 Report”).
[12] In the Defendant’s Supplementary Affidavit of Documents, sworn January 6, 2020 and served that day, all the above-noted investigative reports were listed in Schedule “A”, including the December 2019 Report and the January 2020 Report. The Supplementary Affidavit of Documents also lists three further reports with which the Plaintiff takes no issue:
a) A report dated July 9, 2009 containing surveillance for June 15 and 16, 2009;
b) A report dated April 29, 2012 containing surveillance for April 19, 20, and 21, 2012; and
c) A report dated June 7, 2012 containing surveillance for June 2 and 3, 2012.
[13] By the time the motion was argued, the Plaintiff’s counsel had had the December 2019 Report in his possession for 7 days, the January 2020 Report in his possession for 5 days, and the actual video relating to the January 2020 Report for 4 days. Plaintiff’s counsel indicated that as a result of the flurry of trial preparation, he had not yet forwarded the new reports and surveillance to his client or to his other witnesses.
[14] The Plaintiff maintains that the most recent surveillance depicts the Plaintiff participating in activities that were not previously disclosed. After reviewing all the previous surveillance reports, I find the reports are repetitive of earlier activities of the Plaintiff, such as driving, or working in a restaurant. The only activities shown in the footage that could possibly be noted as new are the Plaintiff’s use of a snowblower and shovel, as well as him climbing a ladder. It should be noted that earlier surveillance showed the Plaintiff mowing his lawn, moving and placing small pavers and putting soil in his garden.
Admissibility of Video Surveillance
[15] The test for admissibility of all surveillance evidence, for whatever use and whenever produced, is relevance and materiality. Relevant evidence is prima facie admissible unless the party objecting to its admission can show that its probative value is outweighed by its prejudicial impact on the objecting party. “Prejudicial” does not mean that the evidence is detrimental to the objecting party’s case, but rather that the admission of the evidence will have a negative impact on the fairness and integrity of the proceedings: Ismail v. Fleming, 2018 ONSC 6311, at para. 13.
[16] As the gatekeeper, the trial judge must determine the admissibility of surveillance evidence for any purpose through a voir dire in the absence of the jury: Nemchin v. Green, 2019 ONCA 634, 147 O.R. (3d) 530, at para. 10; Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 93-95; and Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767, at para. 48.
[17] In order to assess the admissibility of the surveillance evidence, the Court of Appeal for Ontario has directed that the admissibility of surveillance should be granted in accordance with the “discrete and granular approach” as utilized in Ismail, for each video excerpt the defence wishes to put to the Plaintiff: Nemchin, at paras. 12, 34, 37.
[18] In a voir dire, the trial judge must assess the video evidence for two purposes. First, the videographer should be examined in order to ensure that the video presents a fair and accurate depiction of the surveillance to be admitted. Secondly, the trial judge is to ensure that the use of the video evidence will not impair trial fairness: Nemchin, at para. 11; Iannarella, at paras. 94-99.
[19] When counsel intends to use video surveillance evidence for the purposes of impeachment, trial fairness will remain intact by the appropriate factual foundation being laid down with the witness, and the suspected discrepancy in the evidence should be put fully and clearly to them. This requirement follows the rule in Browne v. Dunne (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K.H.L.): Iannarella at paras. 95-99; Nemchin, at para. 26. The voir dire conducted in relation to this type of video surveillance should take place after the cross-examination of the witness, when the foundation has been laid, and before the conflicting evidence is put to them. If in the voir dire it is established that the video surveillance shows evidence of something contrary to what the witnesses have indicated so far, the video evidence will be admissible to impeach the witness.
[20] When utilizing surveillance to support a party’s substantive position in the trial, the Court of Appeal for Ontario states in Nemchin, at para. 50:
The question is whether there were any realistic or meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise by the admission of such evidence at trial. Late production is usually not a good reason for excluding relevant evidence where it is similar to evidence that was disclosed on time, so that neither the plaintiff nor her counsel were unfairly caught by surprise.
[21] When video surveillance is produced more than 90 days prior to the commencement of trial, there is little chance that the Plaintiff can claim they were caught by surprise. It is when the surveillance is provided in less than 90 days that the court must determine whether the evidence is truly new. If the court determines, using a discrete and granular approach, that a particular clip of video surveillance is new and that Plaintiff’s counsel were caught unfairly by surprise, the trial judge can then determine whether the particular clip is inadmissible as its probative value is outweighed by its prejudicial effect. A voir dire of the clip to be tendered in support of the Defendant’s case should be conducted prior to that evidence being tendered.
[22] In our scenario, the December 2019 Report and the January 2020 Report were both produced and listed in the affidavit of documents, so leave is not required under r. 30.08(1) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Under r. 30.09 though, given that they were previously privileged, and not produced more than 90 days in advance, leave is required for the Defendant to use the evidence contained therein for substantive purposes. Again, whether the surveillance is used for substantive or impeachment purposes, it still must be relevant, and its probative value must not be outweighed by its prejudicial effect. This will be determined by a voir dire.
[23] The circumstances in which leave should be granted with respect to the surveillance reports is addressed in r. 53.08. The rule directs that leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.
[24] As stated in Ismail, the guiding consideration when determining whether or not to grant leave is whether the video surveillance presented any realistic or meaningful concerns about the Plaintiff and his counsel being unfairly taken by surprise by the admission of such evidence at trial: para. 13.
[25] In the circumstances of this case, I have considered the recent dates of the surveillance, the length (approximately 5 hours), and the fact that the content of the surveillance is not substantially different to what has been observed before. Also, in light of the length of time that the new surveillance was already in the hands of Plaintiff’s counsel, I have determined that a further short adjournment would be appropriate to give Plaintiff’s counsel time to review the new surveillance with their client and their experts. An adjournment of an additional five days, being three trial days, was deemed appropriate. In total, the Plaintiff will have had the December 2019 Report in his possession for 13 days prior to his opening statement. He will have had the January 2020 Report for 11 days prior to his opening statement.
[26] Accordingly, I grant the Defendant leave to utilize the December 2019 Report and the January 2020 report for substantive purposes, following a voir dire to determine if the particular video evidence offered would impair trial fairness. If it does, it will be deemed inadmissible.
Background Investigation Report
[27] With respect to the further background investigation report, the Defendant was agreeable to releasing the report itself so the Plaintiff could obtain the particulars of the report in a timely manner. By providing a copy of the report to the Plaintiff, the Defendant has provided all the particulars to which the Plaintiff is entitled. Given that this is a privileged document, for which privilege was not waived 90 days prior to the commencement of trial, the Defendant will require leave to rely on it. The Defendant maintains that they have no intention to use it at trial. If this changes, the Defendant will need the leave of the trial judge before utilizing it.
Conclusion
[28] For the foregoing reasons, I made the following orders:
a) The Plaintiff’s motion to exclude the December 2019 Report and the January 2020 Report is dismissed;
b) Leave is not required to utilize the surveillance evidence for the purposes of impeachment; leave is granted to the Defendant to rely on the December 2019 Report and the January 2020 Report for substantive purposes;
c) Admission of video evidence for any purpose will be subject to a mid-trial ruling on is admissibility following a voir dire;
d) The Plaintiff’s alternative position, that he be granted an adjournment, is granted, but not for the time requested; the commencement of the trial is adjourned to 10:00 a.m. on Thursday, January 16, 2020;
e) The Defendant shall provide a complete copy of their latest background investigation report to the Plaintiff within 24 hours; and
f) Costs of this these motions are reserved to the trial judge.
Fowler Byrne J.
Released: January 31, 2020
DATE: 2020 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RASHID ALI SYED
Plaintiff
- and -
DEREK JAMES PETRIE
Defendant
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: January 31, 2020