COURT FILE NO.: CV-18-0006-00T1

DATE: 2021 04 01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JESSICA RUMNEY

Plaintiff

• and -

BRYCE CAREY NELSON and SUPER PAVING & CONSTRUCTION LTD.

Defendants

Robert Littlejohn for the Plaintiff/Moving Party

Simon Cox, for the Defendants/Responding Parties

HEARD: March 22, 2021 by video-conference

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] The Plaintiff brought a disclosure motion regarding surveillance reports and a social media report in the possession of the Defendants. The Plaintiff’s motion was amended twice, so for the purpose of clarity, I can summarize the remaining requested relief as follows, as set out in the latest Amended Notice of Motion dated Sept. 16, 2020:

An order requiring the Defendants to produce and make available to the solicitor for the Plaintiff a complete, unedited copy of all Surveillance Videos, Pictures, Audio Recordings, reports, summaries and full particulars of the documents contained in Schedule B of the Defendants’ Supplementary Affidavit of Documents sworn October 16, 2019. Namely,

a. the Surveillance Records of Mantis Investigation Agency on March 24, 2016, September 19, 2016 and June 5, 2017, and

b. the Social Media Search Report dated March 20, 2019 and subsequent.

[2] At the hearing, the Plaintiff also sought a further and better affidavit of documents, although not requested in the latest Amended Notice of Motion. Nonetheless, given the parties’ ongoing obligation to provide a supplementary affidavit of documents, as more documents are disclosed, I will consider this relief.

Background

[3] This action was commenced following a motor vehicle accident wherein the Defendants’ vehicle collided with the rear-end of the Plaintiff’s vehicle on September 13, 2012. The matter is scheduled to go to trial before a judge and jury on October 4, 2021.

[4] The issue of the disclosure of surveillance and social media have been before the court since 2019 but have been delayed by the temporary suspension of court operations due to COVID-19. In this time, some disclosure was made, leading to the two subsequent amendments to the relief sought.

[5] The following is a summary of the disclosure made to date in relation to surveillance and social media:

a. On February 26, 2019, the Defendants sent to the Plaintiff a summary of surveillance performed on the Plaintiff in June and August 2018 and surveillance DVDs. In this same letter, the Defendants advised that they also had 3 surveillance reports from Mantis Investigation Agency (“Mantis”) dated March 24, 2016, September 19, 2016 and June 5, 2017, but as they did not see the Plaintiff in the surveillance, they would not serve summaries or the reports;

b. In their responding affidavit to this motion, sworn October 16, 2019 (“Responding Affidavit”), the Defendants clarified that the DVDs provided were filmed by K. Wruck & Associates (“Wruck”) and dated June 27, 2018 and October 4, 2018;

c. By way of letter dated April 15, 2019, the Plaintiff received “a selection of pages from our public internet research”, along with an undated and unsworn Supplementary Affidavit of Documents. Schedule B of the Affidavit of Documents listed 3 surveillance reports by Mantis, 2 surveillance reports by Wruck and one Social Medial Search Report by My P.I. (“the Social Media Report”);

d. In the Responding Affidavit, the Defendants clarified that on April 15, 2019 they served the Plaintiff with “the pages from our social media search” and further clarified that the images provided to the Plaintiff were nearly identical to those possessed by the Defendants, albeit without comments, analysis and notations from their investigators;

e. The Defendants state that on August 8, 2019, they found out that the DVDs provided to the Plaintiff were edited. The Defendants requested an unedited copy of the surveillance videos from their investigator;

f. By way of letter dated August 14, 2019, the Defendants advised the Plaintiff that they followed up with their investigators (no name provided) and confirmed that they had additional unedited video footage, which would be sent out, and that they would provide a further and better Affidavit of Documents;

g. In the Responding Affidavit, the Defendants clarified that their August 14, 2019 letter was in reference to the DVDs from Wruck;

h. By way of letter dated August 15, 2019, the Defendants enclosed an undated and unsworn Supplementary Affidavit of Documents; in addition, the Defendants advised:

Please be advised that the Plaintiff was not seen in any of the surveillance reports of Mantis Investigation Agency and no surveillance footage was captured of her. As the Plaintiff was not seen in the Mantis reports, there were no surveillance summaries served on you. We have served copies of all of the surveillance DVDs in our possession on you. Surveillance summaries for both K. Wruck and Associates reports were also provided to you. We have provided you with copies of the social media screenshots that were captured in the March 20, 2019 social media search report and have complied with all disclosure requirements for that report.

i. In the Responding Affidavit, the Defendants confirmed that they have provided to the Plaintiff all non-privileged material that is in their care and control.

[6] There appeared to be some confusion on the part of the Defendants about what the Plaintiff is seeking due to the number of amendments. Also, what is sought in the Notice of Motion was not exactly as argued at the hearing of the motion.

[7] There is also some confusion on the part of the Plaintiff as she is not convinced that she has received everything to which she is entitled. This confusion is somewhat understandable, as the correspondence from counsel for the Defendants was not always clear and at times contradictory in nature. Clarification was required, which was given in the Responding Affidavit.

Plaintiff’s Position

[8] The Plaintiff’s submission is that the documents listed in Schedule B of the Affidavit of Documents sworn October 16, 2019 does not specify the privilege on which the Defendants rely. Also, the Schedule B fails to provide the particulars of the surveillance or the Social Media Report, such as date, time, location, nature and duration of activities depicted and names and addresses of those conducting the surveillance, as required by Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523. As indicated, she is also concerned that she has only received some of the pages of the Social Media Report.

Defendants’ Position

[9] The Defendants maintain that they have made full production of surveillance video, unedited, with respect to the surveillance conducted by Wruck. The Defendants are claiming litigation privilege over the remainder of the Wruck documents and reports and the Social Media Report. They say production of the Mantis surveillance is not necessary because the Plaintiff was not identified in the video surveillance. In addition, with respect to the surveillance conducted by Mantis, the Defendants have stated that they will not be calling anyone from Mantis at trial and that no surveillance will be produced because none of the surveillance conducted by this company contained any images of the Plaintiff.

[10] With respect to the Defendants’ Social Media Report, they are claiming litigation privilege with respect to the report itself, but claim they have produced copies of all the still shots they took from the Plaintiff’s social media account(s).

Issues

[11] Given that the Defendants have clarified in their argument that they are claiming litigation privilege over the reports listed in Schedule B, the following are the issues to be determined:

a. Is leave required to bring this motion?

b. Have sufficient particulars been provided in the Defendant’s Affidavit of Documents?

c. What are the Defendants required to produce with respect to the Wruck surveillance, the Mantis surveillance and the Social Media Report?

d. Should a further and better affidavit of documents be produced?

Issue A: Is Leave Required?

[12] Given the relief sought in this motion, leave is not required. This motion was brought further to the Defendant’s ongoing obligation of documentary disclosure, including their obligation to provide an up to date affidavit of documents: rr. 30.07, 48.04(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Issue B: Sufficiency of Affidavit of Documents

[13] Rule 30.03 requires parties to litigation to serve an affidavit of documents that “shall list and describe, in separate schedules, all documents that are relevant to any matter in issue”. Schedule B is to contain those documents that are or were in the party’s possession, control or power and for which the party claims privilege, and the grounds for that claim. All documents, which include video and images, must be listed in a party’s affidavit of documents.

[14] If privileged documents are listed under Schedule B of an affidavit of documents, the plaintiff has the ability to seek full particulars of that privileged document at examinations for discovery. The particulars that must be disclosed on request include the date, time, location of the surveillance, as well as the nature and duration of the activities depicted and the names and addresses of the videographers. These questions must be answered even though to do so would require the disclosure of information contained in a privileged document: Iannarella, at paras. 40-41.

[15] Even after discovery, the particulars of any subsequent surveillance must also be provided upon request in accordance with r. 31.09(1)(b): Iannarella, at para. 55.

[16] The obligation to provide particulars remains even if the party disclosing the existence of the surveillance does not intend to rely on it at trial: Iannarella, at para. 43.

[17] A party is required to provide full particulars of any surveillance conducted by them if it may be used to impeach the testimony of the party observed, or even if they do not intend to rely on it at all: Arsenault-Armstrong v. Burke et al., 2013 ONSC 4353, at paras. 4, 11.

[18] In the case before me, no such particulars were provided with respect to any document listed in Schedule B. The Plaintiff is entitled to the particulars and accordingly they shall be ordered, irrespective of whether the entire surveillance file has already been delivered. The Plaintiff is entitled to a sworn statement by the Defendant of the extent of their surveillance and social media investigations, which is what the Affidavit of Documents will accomplish.

Issue C: Production Obligations of the Defendants

[19] It is clear that if litigation privilege is claimed on a document, there is no requirement to produce the document itself.

[20] A claim of litigation privilege gives rise to an immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation. Usually this encompasses the lawyer’s file and oral or written communications between a lawyer and third parties, such as witnesses or experts, if made for the dominant purpose of pending or contemplated litigation: Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 19; General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321 (C.A.), at para. 22; Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at paras. 59-60.

[21] Litigation privilege is a class of privilege which entails a presumption of non-disclosure once the conditions for its applications are met. Once a document is created for the dominant purpose of litigation that is pending or reasonably contemplated, there is a prima facie presumption of inadmissibility. The document will then be protected by immunity from disclosure unless the case falls under one of the exceptions to that privilege. The onus is not on the party asserting litigation privilege to prove on a case-by-case basis that the privilege should apply in light of the facts of the case and the public interests that are at issue: Lizotte, at paras. 32-33, 37.

[22] If it is established that the document is subject to litigation privilege, it will then be up to the opposing party to identify the specific exception to litigation privilege that applies: Lizotte, at paras. 33, 41. One such exception is if the privilege has been waived: Cromb et al. v. Bouwmeester et al., 2014 ONSC 5318, at para. 48.

[23] Waiver of litigation privilege may be express, inadvertent or implied: Cromb, at para. 48.

[24] Waiver of privilege by disclosure of documents arises when there is (a) a disclosure; (b) of a privileged communication; (c) that is intended; (d) with the intention of waiving privilege; and (e) by a person who is authorized to make the disclosure and waive the privilege: Guelph (City) v. Super Blue Box Recycling Corp. (2004), 2004 CanLII 34954 (ON SC), 2 C.P.C. (6th) 276 (Ont. S.C.), at para. 90.

[25] The production of one part of a file does not mean that privilege of the entire file has been waived. It must be shown that without the additional documents, the document is somehow misleading: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7258 (ON SC), 27 O.R. (3d) 291 (S.C.).

[26] Accordingly, privilege over a document is expressly waived if it is purposively disclosed to the opposing counsel. If the privilege is waived, these documents should be included in Schedule A of the Affidavit of Documents. The Defendants have expressly waived privilege over the surveillance videos taken by Wruck and the images from the Social Media Report.

[27] The Plaintiff though, argues that there has been a waiver of privilege with respect to the Wruck report and notes, the Social Media Report, and the Mantis surveillance and reports.

[28] Clearly, these other documents have not been expressly waived. Sometimes though, waiver by implication may arise when fairness and consistency require that the litigation privilege be set aside, having regard for the disclosure that the party claiming the privilege has already made: Cromb, at para. 48.

[29] In Cromb, the Court determined that by releasing part of their surveillance videos and two reports, the Defendants waived litigation privilege by implication for the third round of surveillance by the same investigator. In so determining, the Court also considered whether the waiver of privilege of certain documents can lead to waiver by implication of other separate documents and recordings in the possession of the party claiming privilege. Chappel J. found that the doctrine of waiver by implication has been extended to lift privilege with respect to completely separate documents if they relate to the same general subject matter and selective disclosure could mislead the other party or the court. In that case, since the last round of surveillance was conducted by the same investigator, Chappel J. ordered that it be produced: Cromb, at paras. 51-53.

[30] In the case before me, I find that the Defendants have satisfied their onus of showing that the items listed in Schedule B are subject to litigation privilege. What must then be determined by the court is whether the Plaintiff has shown that litigation privilege was waived by implication with respect to the other items sought. In particular, it must be determined whether the Defendants waived litigation privilege by implication with respect to the Mantis surveillance footage when the Defendants produced the surveillance footage filmed by Wruck. If I so find, this is a recognized exception to the claim of litigation privilege which would result in the order for disclosure, as per Lizotte.

[31] The case before me is slightly different than the case in Cromb. In that case, all three instances of surveillance were by the same investigator. On the facts before her, Chappel J. found it could mislead the court if only part of this investigator’s surveillance results were released. In our case, all the surveillance disclosed to date has been from the same investigator. The other surveillance was by a separate investigator and predated the disclosed surveillance by one to two years, closer to the time of the motor vehicle accident. Most importantly, the Defendants claim the Plaintiff does not appear in the Mantis surveillance footage and they will not be relying on it.

[32] In these circumstances, it would not be misleading to the court if the raw Mantis surveillance is not disclosed, for the sole reason that the Plaintiff does not appear in them. Had the Plaintiff been present in any capacity, the principles of waiver by implication would be applicable here. The mere fact that the Defendant used a different investigator does not in and of itself mean that the surveillance should not be considered in its entirety.

[33] While the inability of the Defendants to capture the Plaintiff out and about in the community may be relevant, the details that are to be provided by the Defendants with respect to the Mantis surveillance will provide the Plaintiff with the necessary information in order to prepare for her trial.

[34] With respect to the remainder of the reports or notes sought in relation to surveillance, I do not find that litigation privilege has been waived. Accordingly, the “reports and summaries” and remainder of the relief requested in the Notice of Motion, do not have to be produced for either the Wruck nor the Mantis investigations.

[35] With respect to the social media report, I find that litigation privilege has been waived with respect to the images that have been disclosed. The Defendants have stated that they have provided a copy of all the images relied on. Once they provide the particulars required, the Plaintiff can have the proper assurances of same. If not all images in the Social Media Report have been produced, then I find that the Defendants have waived litigation privilege over the rest of the images by implication and that it would be misleading to produce only some of the images they have captured.

Issue 4: Affidavit of Documents

[36] Some of the confusion about what was produced and what was not could be resolved by providing a further and better affidavit of documents that has the specificity required by the Rules and the law. The Defendant has agreed to do so. The Plaintiff should have specific knowledge of which documents the Defendants have waived privilege over, which should be listed in Schedule A. Then both parties will have a very clear picture of what documents are privileged and which are not.

Conclusion

[37] For the foregoing reasons, I make the following orders:

a. If not already done, within 45 days, the Defendants shall deliver to the Plaintiffs all surveillance DVDs created by Wruck, unedited;

b. If not already done, within 45 days, the Defendants shall deliver to the Plaintiff all images that are contained in the Social Media Report, unedited;

c. Within 45 days, the Defendants shall provide a further and better sworn affidavit of documents as follows:

i. If privilege is waived on any document, video or photo, those documents, videos or photos are to be listed in Schedule A, with sufficient detail to permit all parties to identify exactly what is being disclosed.

ii. Any document listed in Schedule B shall set out the grounds for the claim of privilege;

iii. For all surveillance-related documents listed in Schedule B of the affidavit of documents of the Defendants, the Defendants shall provide the following particulars: the date, time, location of the surveillance, as well as the nature and duration of the activities depicted and the names and addresses of the videographers;

iv. For all social media-related documents listed in Schedule B, the Defendants shall provide the following particulars: date, time, location of the image on what social media platform, the number of images captured, the nature and duration of the activities depicted, and the name and address of the party conducting the social media search who captured the images;

d. The parties are encouraged to resolve the issue of costs themselves. If they are unable to do so, the Plaintiff shall serve and file her written submissions, restricted to two pages, single sided and double-spaced, exclusive of costs outline and offers to settle, no later than 4:30 p.m. on April 16, 2021; the Defendants shall serve and file their responding submissions, with the same restrictions, no later than 4:30 p.m. on April 30, 2021; any reply submissions by the Plaintiff, with the same size restrictions, shall be served and filed no later than 4:30 p.m. on May 7, 2021; and

e. The remainder of the motion is dismissed.

Fowler Byrne J.

Released: April 1, 2021