COURT FILE NO.: FS-17-90706
DATE: 2021 05 31
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: E.M.B.
AND
M.F.B.
BEFORE: Mandhane J.
COUNSEL: Jared Teitel and Kristen Normandin, for the Applicant
Karmel Sinclair, for the Respondent
REASONS ON VOIR DIRE
The Applicant Father asks me to exclude evidence from private investigators (“PI evidence”) who were hired by the Respondent Mother to follow the Father in 2020, and to preclude its use even for the limited purpose of impeaching the Father’s credibility.
The Father was in the middle of being cross-examined when his counsel first raised concerns about the admissibility of the PI evidence. The matter was adjourned for the remainder of the day to allow the parties to prepare for a voir dire into the admissibility of the PI evidence. Both parties submitted case law for me to consider.
After being specifically asked by the Court whether she intended to call evidence on the voir dire, the Mother’s counsel chose not to call the private investigators or her client and relied only on legal submissions.
Contents of the PI evidence
While the PI evidence was not proffered by either party on the voir dire, there is some information about the evidence in Justice Fowler Byrne’s endorsement dated May 1, 2020. This is because the PI evidence was proffered before her in response to the Father’s successful motion for interim parenting time. In her endorsement, Fowler Byrne J. noted that, at that point, the investigators had spent at least twenty-five days surveiling the Father; they were authorized to conduct a total of fifty days of surveillance; and they did not surveil the Father while he was on the job at the construction site or while he was at home.
In the motion before Fowler Byrne J., the Mother relied on the PI evidence to establish that, at the time of surveillance, the Father:
a. drank alcohol on a daily basis and was often seen drinking on the job;
b. was seen drinking in his parked vehicle on two occasions;
c. did not abide by COVID-19 safety protocols related to masking, hand sanitizing, and social distancing in the two months immediately after the onset of the pandemic in March 2020; and
d. attended a “Cliftonvale Residence” on a regular basis for purposes that remain unclear and are in dispute.
- Notably, the PI evidence does not appear to include footage of the Father’s parenting time with the Child, and there is no indication that the PI evidence is linked directly to the Father’s capacity as a parent.
Orders re: disclosure of the private investigator’s files
The Father has been asking for production of the private investigators’ files since August 2020 and, to date, has not received complete disclosure.
At a case conference on August 28, 2020, Justice Ricchetti ordered counsel to resolve all production issues by September 11, 2020.
At the first Trial Management Conference on October 26, 2020, Justice LeMay, the assigned case management judge, ordered that the videotape evidence be produced and stated that: “Given that the deadline for producing this videotape was pre-pandemic, I will require an explanation if it has not already been produced.”
In the Trial Scheduling Endorsement Form dated March 9, 2021, under the heading “Exhibits Proposed,” LeMay J. wrote: “There is an issue with respect to documentation from private investigators. That documentation must be served by March 24, 2021.” The Mother was informed that failure to produce the ordered disclosure could result in an adverse inference being drawn against her at trial or the evidence being excluded by the trial judge.
On May 3, 2021, one week before this matter was scheduled to proceed, Justice LeMay refused the Mother’s adjournment request and ordered that she produce the complete file from the private investigators, stating: “There is documentation relating to the private investigator. If this documentation is not provided by the end of day tomorrow, then the Respondent will be precluded from calling the private investigators without the leave of the trial judge.”
The Friday before the trial was set to commence, on May 7, 2021, Justice LeMay noted that the parties had confirmed to him that all outstanding documentation had been produced, save and except for the CV of a therapist involved in the case. This was not an accurate statement on the part of the Mother, since it has now become clear that the private investigators’ full file has not been produced.
The parties’ positions on the voir dire
The Mother now admits that she did not produce all the relevant documentation prior to trial but asks me to grant her leave to admit the PI evidence regardless. Her counsel, Ms. Sinclair, explains that she was under the impression that she was only required to disclose those portions of the videos that she proposed to rely upon. She claims that the information sought by the Father, including the retainer letter and invoices, is irrelevant and overbroad.
The Father’s counsel, Ms. Normandin, says that the Mother is in breach of Justice LeMay’s order, which specifically contemplated exclusion of the PI evidence, and that I should exclude the evidence on that basis. She notes, and I agree, that this matter has been marked by the Mother’s repeated failure to make full and complete disclosure and refusal to allow the Father to access information about the Child.
In this context, Ms. Normandin says that admission of the PI evidence would result in trial unfairness that cannot be remedied short of excluding the PI evidence in its entirety, including for the limited purpose of impeachment.
Ms. Sinclair says that a remedy short of exclusion is appropriate because she is now willing to provide the complete file to the Father, would consent to a short adjournment to allow Ms. Normandin to review the file, and will not object to fulsome re-examination of the Father based on the new materials disclosed during trial.
Analysis
Given that the private investigators were hired to surveil the Father for the specific purpose of this litigation, the retainer, invoices, investigators’ notes, and complete surveillance tapes are relevant to the reliability and weight to be given to the PI evidence. These items should have been disclosed pursuant to court orders going back to August 2020, consistent with the disclosure requirements set out in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 30.02 and 30.03.
Given the Mother’s failure to disclose these items in their entirety, Rules 30.08(1)(a) and 53.08(1) apply:
30.08 (1) Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking,
(a) if the document is favourable to the party’s case, the party may not use the document at the trial, except with leave of the trial judge; or…
53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), 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. [Emphasis added.]
In Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, the Court of Appeal for Ontario discussed the importance of disclosure in the context of surveillance evidence, stating that disclosure “provides the parties with the opportunity to carry out a realistic assessment of their positions and therefore facilitates settlement”: at para. 44. However, “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”: at para. 45. “Given the interests of fairness and the objectives of efficiency and settlement, the court expects the parties to comply fully and rigorously with the disclosure and production obligations under the Rules”: at para. 46.
The Father was entitled to receive complete information so that he could respond to the Mother’s allegation that his consumption of alcohol at work and failure to abide by pandemic protocols pose a risk to the Child.
While portions of the surveillance video appear to support the Mother’s allegations, her failure to disclose the complete file prior to the beginning of trial has also impeded the Father’s ability to challenge the admissibility, reliability, and/or weight to be given to the PI evidence. For example, he was deprived of the opportunity to be examined in chief on the context of the clips within the entirety of the surveillance video, and about portions of the video that might have supported his position. As in Iannarella, at para. 83, the Father “did not have the benefit of considering the surveillance [in its entirety] in assessing the possibility of pre-trial settlement, and their counsel had little time to prepare an appropriate examination in chief.”
Unfortunately, I am not satisfied that the Father has or will ever receive complete information about the surveillance conducted by the private investigators. For example, while the matter was being argued before me, Ms. Sinclair continued to receive documentation from the Mother that she had never seen before and which had not been shared with the Father previously. For example, during the voir dire, the Father received invoices for surveillance conducted on dates for which there are no corresponding videos or photographs.
Under r. 53.08, “a trial judge must grant leave unless to do so would cause prejudice that could not be overcome by an adjournment or costs”: Iannarella, at para. 80, quoting from Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), at para. 81.
In this case, the prejudice arising from the disclosure issues cannot be remedied through a short adjournment, costs, or modification of the trial process. This is because the Mother further advises that the private investigation firm did not keep a full copy of the file, that the three individuals who conducted surveillance of the Father are no longer employed with the private investigation firm, and because Ms. Sinclair has not yet confirmed those individuals as witnesses for this trial nor sought a subpoena to secure their attendance for cross-examination. The Mother proposes instead to adduce the videos as business records by calling the custodian of the records, the owner/operator of Star Quality Private Investigations. However, this is not adequate since the custodian will not be able to give evidence about the extent of the surveillance of the Father himself, which is certainly going to be a central issue if there are no further videos to be produced.
Finally, while not determinative, I note that the proposed PI evidence is of limited probative value, in contrast to the case of Reddick v. Reddick (1997), 14 C.P.C. (4th) 175 (Ont. Gen. Div.), put forth by the Mother. The surveillance does not specifically relate to the Father’s parenting of the Child, which has been occurring on weekends when the Father does not work. The surveillance was also conducted nearly a year ago, at the beginning of the pandemic, such that it is of very limited probative value in terms of the Father’s current adherence to COVID‑19 protocols. I also note that the Mother adduced no evidence regarding the restrictions in place at the time of the video surveillance and did not challenge the Father’s evidence that he is currently abiding by COVID-19 protocols. The Father also told the Court that he was scheduled to receive the first dose of a COVID-19 vaccine in June 2021.
Given the highly prejudicial nature of the videos, the failure to disclose the complete investigators’ file, and the inability of the Father to cross-examine the investigators, the trial fairness issues cannot be easily remedied through adjournment, costs, or modification of the trial process to allow the Applicant Father to bifurcate his case. For these reasons, I decline to admit the PI evidence for any substantive use.
I also decline to admit the PI evidence for the limited purposes of impeachment. First, the prejudicial effect of the PI evidence outweighs its probative value, given its lack of relevance and the unlikelihood that the Father will actually receive fulsome disclosure: Iannarella, at para. 89. Second, the Mother has a history of strategically seeking adjournments and causing delay in the case, as mentioned above. Given this history of delay, it would be unfair to the Father to allow impeachment on the evidence, as this would require an adjournment in order to allow the Father to familiarize himself with the contents of the surveillance and obtain full particulars.
For these reasons, I decided to exclude the PI evidence in its entirety, preventing its use even for the limited purpose of impeachment.
Mandhane J.
DATE: May 31, 2021
COURT FILE NO.: FS-17-90706
DATE: 2021 05 31
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: E.M.B.
AND
M.F.B.
COUNSEL: Jared Teitel and Kristen Normandin, for the Applicant
Karmel Sinclair, for the Respondent
ENDORSEMENT
Mandhane J.
DATE: May 31, 2021