The Ontario Court of Appeal recently clarified the long-standing issue of whether defence counsel must disclose the existence of surveillance prior to trial.

Background

In Iannarella v Corbett1, the plaintiff (Iannarella) was rear-ended by the defendant (Corbett). Iannarella claimed he suffered a rotator cuff injury, which limited his functionality.

During Iannarella’s cross-examination, the judge permitted defence counsel to tender a disc containing 27 minutes of video from the 130 hours of surveillance that had been conducted, even though the existence of the surveillance had not been disclosed to plaintiff’s counsel prior to trial. The jury found Corbett was not liable and Iannarella appealed.

The Ontario Court of Appeal decision

The Court of Appeal overturned the lower court’s decision on several issues, most notably that of the permissible use of surveillance. It entered a finding of liability against Corbett and ordered a new trial on damages.

The court held that defence counsel must disclose any and all surveillance in its affidavit of documents. In making this decision, the court noted surveillance is a powerful piece of evidence that can facilitate settlement. By allowing defence counsel to use the surveillance at trial, the court concluded that the trial judge had enabled a “trial by ambush.” The court therefore found the trial judge erred by granting leave to admit the video surveillance.

The court further justified the decision by focusing on the party’s disclosure obligations. As stated in Rule 30.08(1)(a) of the Rules of Civil Procedure, a party may not use a favourable document at trial without leave of the court if, (i) it has failed to disclose it; or (ii) it has failed to update an inaccurate or incomplete answer on discovery. The court further clarified that surveillance must be disclosed even where the document is only intended to be used for impeachment purposes.

The take-away

In the past, defence counsel have sometimes relied on ambiguity in the case law to assert that surveillance need not be disclosed if it is only going to be used for impeachment purposes. The Court of Appeal’s decision in Iannarella makes it clear that disclosing surveillance is mandatory – defence counsel must disclose the existence of surveillance in its affidavit of documents, and remember to update its affidavit when surveillance is conducted at a later stage in the litigation process.

Typically, surveillance will be identified in Schedule “B” to one’s affidavit of documents, and then plaintiff’s counsel will be afforded the opportunity to seek particulars during the discovery examinations. On request, defence counsel must disclose the date, time and location of surveillance, the nature and duration of the activities depicted, as well as the names and addresses of videographers. This is so because, while the surveillance video is privileged, the facts it discloses are not.