In Arsenault-Armstrong v. Burke, 2013 ONSC 4353, the Ontario Superior Court of Justice recently ordered a defendant to produce the particulars of surveillance even if the defendant did not intend to rely upon the surveillance at trial.
This issue arose in the context of a personal injury action rising from a motor vehicle accident. On discovery, the defendant undertook to provide the particulars of future surveillance, including the date of any surveillance, the investigator’s name, the date and number of pages of any surveillance report, and the number of photographs or minutes of videotape taken. The defendant refused to provide any further particulars if she did not intend to rely on the surveillance at trial. Hambly J. ordered the defendant to provide full particulars of surveillance, including a summary of the content of the surveillance regardless of whether the defendant intended to rely on the surveillance at trial.
The defendant was not required to produce the actual videotape.
Hambly J. cited a number of reasons for this decision. Knowledge of surveillance would help the parties evaluate their cases, would encourage settlement and could help plaintiffs avoid exposure to exorbitant costs if they are unsuccessful at trial.
This decision serves as a reminder that Courts continue to require the disclosure of all relevant evidence, including surveillance. Defendants should also be mindful of their obligations to update their Affidavits of Documents and correct any discovery evidence about the existence of surveillance.