The superior court has ruled that a party who obtains surveillance must disclose the particulars of the surveillance on examination for discovery, even if they do not intend to rely on the surveillance at trial.
In the case of Arsenault-Armstrong v. Burke et. al., the defendant in a personal injury action agreed, on examination for discovery, to produce the date of surveillance, the date of the report, the name of the investigator, the number of pages of the report and length of the video but declined to provide any further particulars, on the basis that the defence would not be relying on the surveillance at trial.
Hambly, J. found that while a surveillance report does not need to be produced unless a party intends to rely on it at trial, particulars of that surveillance are discoverable. Particulars of surveillance should be disclosed on the basis that, even if the surveillance is not used at trial, it may contain information that is relevant to that surveilled party’s assessment of their own case. The party that obtains the surveillance stands to benefit from the information that they glean about their opponent even if the surveillance is not used at trial. This decision serves as a reminder that discovery rules are to be read in a manner that discourages tactics and encourages full disclosure, early settlement and a reduction in court costs.
The review of the law in Hambly J.’s decision also serves as a reminder that the duty of disclosure is ongoing. Even if surveillance is conducted following examinations for discovery, it is a party’s duty to update schedule B of their affidavit of documents to reflect the existence of a surveillance report, in a timely fashion.