The Ontario Court of Appeal recently found that a trial judge permitted trial by ambush in failing to require pre-trial disclosure of surveillance evidence. In Iannarella v Corbett,1  the Ontario Court of Appeal was asked to assess the appropriateness of a jury charge and the use of surveillance evidence at trial. The Court of Appeal substituted the jury’s finding of liability and concluded that the use of surveillance footage should not have been permitted.

The Court of Appeal Overturns the Trial Decision

The plaintiffs, Mr. Iannarella and his wife, were rear-ended by Mr. Corbett. The plaintiffs commenced a negligence claim against Mr. Corbett and St. Lawrence Cement Inc. At trial, the jury found that the Mr. Corbett had not been driving negligently and dismissed the action. On the plaintiffs’ appeal, the Court took issue with a variety of rulings made by the trial judge, most significantly, the improper admission of surveillance evidence and the improper charge to the jury regarding such evidence.

The Use of Surveillance Evidence

The defendants hired a private investigator to prepare video footage of Mr. Iannarella for the purpose of impeaching his testimony regarding the severity of his injuries. The defendants did not produce an affidavit of documents and did not otherwise disclose the existence of this footage until it was introduced at trial.

By way of background, parties are required to produce all relevant documents in an affidavit of documents. If a party claims privilege over any relevant documents, the party is required to list those documents but does not have to provide them. The party is precluded from relying on any of the privileged documents except for the purpose of impeaching the testimony of a witness. Surveillance evidence would fall within the class of documents protected by privilege.

The Court of Appeal’s decision highlighted two problems with the admission of the surveillance footage in this case.

The first problem was that the defendants had not provided an affidavit of documents. Since the defendants had not disclosed the existence of the surveillance footage, as required, they were not permitted to rely on the footage to impeach Mr. Iannarella’s testimony. The Court of Appeal found that the trial judge ought to have ordered the defendants to serve an affidavit of documents disclosing the surveillance or at least disclosing particulars and should have offered the plaintiffs an adjournment to review the footage.

The second problem was that the defendants’ treatment of the surveillance evidence went beyond simply impeaching Mr. Iannarella’s testimony. The defendants’ counsel, and the trial judge, improperly encouraged the jury to use the footage as substantive evidence with respect to Mr. Iannarella’s injuries and, in doing so, went beyond the scope of impeachment.

Key Take-away Principle

So why is this decision relevant? It illustrates the added benefit of pre-trial disclosure - allowing parties to assess litigation risk. This is particularly helpful in product liability cases, in which video surveillance is often used as a way of assessing a plaintiff’s injuries. Had the plaintiffs been provided with the surveillance video, or had they known that it existed, they would have had a more realistic assessment of their prospect of success at trial, which potentially would have encouraged settlement.