Thomas C. Barber

In a motor vehicle accident damages trial where liability was admitted, the court conducted a voir dire to determine the admissibility of surveillance video evidence of the plaintiff.

The defendant sought to use the video under Rule 30.09 of the Rules of Civil Procedure to impeach the plaintiff’s credibility regarding the extent of her physical limitations.

Applying the principles from Landolfi v. Fargione, the court held that evidence tendered solely for impeachment must be relevant to credibility on a material issue and its probative value must outweigh its prejudicial effect.

The surveillance showing the plaintiff performing daily activities was relevant to credibility and its probative value, while modest, was not trifling.

The court ruled the videos admissible solely for impeachment purposes, with a limiting instruction to the jury.

The defendants brought a motion under rule 21.01(1) of the Rules of Civil Procedure seeking determination of questions of law before trial.

They argued that the plaintiff farmer’s action for damages arising from a motor vehicle collision was barred under s. 267.6(1) of the Insurance Act because he operated an uninsured all‑terrain vehicle (ATV) on a public road, and that his claim for statutory accident benefits was barred by s. 30(1)(a) of the Statutory Accident Benefits Schedule.

The court held that the ATV, used exclusively in farming operations, qualified as a “self‑propelled implement of husbandry” under the Highway Traffic Act.

As such, it was excluded from the definition of motor vehicle and from Ontario’s compulsory automobile insurance regime.

The plaintiff was therefore not barred from suing the negligent driver and his claim for statutory accident benefits was not foreclosed.