Civil litigators will be interested in the recent Court of Appeal decision in Iannarella v. Corbett. In particular, the Court made extensive comments on the use of surveillance in litigation and at trial.
On a snowy February evening, Mr. Iannarella was rear ended by the respondent, Mr. Corbett who was driving a cement mixer. Immediately prior to the accident, the two men had been driving in stop-and-go traffic on Highway 427. The road conditions were slippery and it was just starting to get dark at the time of the collision. Mr. Iannella sustained injuries including a rotator cuff injury in the accident and brought a claim against Mr. Corbett.
At trial, the defence introduced a disc of 27 minutes of surveillance (extracted from 130 hours of surveillance taken) which was shown to the jury, made an exhibit and used to cross-examine the plaintiff. The surveillance had not been produced to the plaintiff prior to trial and had not been disclosed in an affidavit of documents. In this case, no affidavit of documents had been delivered by the respondent and the surveillance was never disclosed prior to trial.
Justice Lauwers, writing for the Court, reviewed the rules with respect to surveillance and the manner in which surveillance should be treated in litigation and at trial.
Surveillance is a “document” pursuant to the Rules of Civil Procedure, and as such, it is governed by Rules 30.02 and 30.03 which require it to either be disclosed in schedule A of a party’s affidavit of documents or listed in Schedule B, if privilege is claimed over it. Rule 30.08 sets out that the failure to disclose a document that is favourable to one’s case means that it cannot be relied upon at trial.
If surveillance is included in Schedule B (as it often is) then the plaintiff is entitled to seek particulars of it, including: the date, time and location of the surveillance, the nature and duration of the activities depicted and the names and addresses of the videographers). This is the case whether or not a party intends to rely on surveillance as the Courts have held that disclosure of surveillance serves to encourage early settlement.
The respondent relied upon Rule 48.04 which states that once a matter is set down for trial, a party may not seek any further form of discovery without leave of the court. The respondent further argued that because the plaintiff had waived its rights of examination and had not demanded delivery of an affidavit of documents that it had also waived its entitlement to receive an affidavit of documents.
While the conduct of an examination for discovery is at the discretion of each party, the delivery of an affidavit of documents is mandatory under the rules. The Court held that this is so, even in light of the Supreme Court of Canada’s recent acknowledgement that the waiver of a party’s strict rights can play an important role in expediting cases and thereby making the trial process more timely and affordable (Hryniak v. Mauldin, 1 S.C.R. 87, at para. 2). The Court acknowledged that a party can waive its entitlement to an affidavit of documents, but that in the absence of a clear waiver (setting the matter down for trial does not serve as a waiver of this entitlement), all parties must deliver an affidavit of documents.
Where surveillance is disclosed in Schedule B of a party’s affidavit of documents and then further surveillance is obtained, that further surveillance must be subsequently disclosed in an updated affidavit of documents. Further examination for discovery is available to a party who receives an amended affidavit of documents which discloses further documents.
The Court held that, at the case conference stage, the trial Judge ought to have ordered the defendant to serve an affidavit of documents disclosing the surveillance. This would, in turn, have entitled the plaintiff to an adjournment of the trial and costs thrown away. The failure to disclose the surveillance in accordance with the rules ought to have prevented the defendant/respondent from relying on it at trial. While the trial judge ruled that the surveillance evidence could only be used for impeachment purposes, the Court of Appeal found that the manner in which it was used effectively dissolved the distinction between impeachment and substantive evidence in the minds of the jury.
Rule 53.08 gives the court discretion to grant leave to admit evidence unless to do so will cause prejudice that could not be overcome by an adjournment or costs. The respondent argued that the surveillance in this case was a privileged document and was merely being used under Rule 30.09 to impeach the credibility of the plaintiff (and not as substantive evidence) and as such, it was admissible under Rule 53.08. The Court rejected this argument and found that the assertion of privilege had not been properly made and that the appellant had already suffered significant prejudice by not having had disclosure of the surveillance: the appellant lost the opportunity to consider the strength of his case and settlement at an earlier stage, he also lost the ability to effectively prepare for trial.
The Court also found that the trial judge erred in failing to properly test the surveillance evidence for admissibility for impeachment purposes. The proper process to be followed when presented with previously undisclosed surveillance would be for the Court to review the material and conduct a voir dire on the fairness, representativeness and admissibility of the evidence and to have the respondent lay an adequate factual foundation that the surveillance evidence could contradict.
The trial judge erred in failing to exclude the surveillance evidence under Rule 30.08 or to require the respondent to comply with the rule in Browne v. Dunn before admitting it. The improper admission of the surveillance and its use as substantive evidence critically impaired the fairness of the trial and therefore the Court of Appeal set aside the damages verdict and ordered a new trial on damages. The defendant succeeded on a threshold motion at trial, however, because the trial was unfair and because it was impossible to discern whether the judge’s decision on the threshold question was based on the inadmissible evidence, the decision on the threshold motion was also set aside.
In this decision, the Court reminds us that surveillance evidence can be very powerful and persuasive. As such, it must be handled properly and carefully throughout the life of a file and at trial. Though it may be tempting, counsel should resist the urge to keep surveillance (or any evidence) “in their back pocket” until trial or even shortly before trial.