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October 2018

Watching the Watchers:

Judicial Limitations on the use of surveillance evidence

Megan Murphy
Megan Murphy,
Partner

Lee Chitty
Lee Chitty,
Law Student

by Megan Murphy and Lee Chitty

Presented at a Client Seminar on Surveillance

Surveillance evidence is among the most powerful tools available to a defence lawyer and their client. Correctly deployed, surveillance can be a fatal blow to a plaintiff's claim. Triers of fact, jurors particularly, cannot help but be impacted by surveillance evidence. Numerous studies show that visual memory retention far exceeds audio recall. Due to the power of surveillance evidence relative to cost, many insurers have at least some experience in obtaining this form of evidence. Since the Ontario Court of Appeal handed down its decision in Iannarella v Corbett, the tactical landscape for surveillance has changed and the use of surveillance evidence has been under court scrutiny.1

What is surveillance evidence used for?

Surveillance evidence has two primary purposes at the trial of a personal injury case.

  1. Surveillance of the plaintiff can be used as a form of substantive evidence. The visual recording could depict the party's functional abilities, which assist counsel in limiting or disproving a plaintiff's claim.

  2. Surveillance can be called as impeachment evidence, or as a tool used to undermine the plaintiff's credibility.

Surveillance intended to be substantive evidence at trial must be produced to the opposite party at least 90 days before the commencement of trial.2 Alternatively, it is possible to use it with leave of the Court.3 By contrast, surveillance intended as impeachment evidence need not be produced but must be disclosed in Schedule “B” of the party's affidavit of documents.

Timing the Surveillance

When an insurer and counsel make the tactical decision to obtain surveillance evidence, it is common practice to surveil a plaintiff sporadically over the course of several months. An investigator's observations can occur anytime between the start of an action and when that action reaches trial. Regardless of the timing, defendants need to remain attentive to their disclosure and production responsibilities under the Rules.4

Surveillance must be listed in the defendant's affidavit of documents.

The law regarding disclosure of surveillance obtained before discoveries is well settled. Surveillance must be listed in the defendant's affidavit of documents. At discoveries, the defendant is required, upon request by the plaintiff, to provide a summary of the surveillance that has been obtained to that point. The summary must include the date, time, and place of the surveillance, the nature and duration of the activities depicted, as well as the names and addresses of the investigators.

Defendants are not required to produce the surveillance video unless the defendant wishes to use it as substantial evidence at trial. If privilege is not waived over the surveillance, the defendant can only use the surveillance at trial to impeach a plaintiff's credibility.

With respect to surveillance that takes place after discovery but before trial, Iannarella resolved the previously unclear law and ruled the defendant must disclose the particulars of this surveillance as well. As a result of the Iannarella decision, defendants must provide particulars of post-discovery surveillance to plaintiffs. Disclosure is mandatory irrespective of whether the defendant intends to rely on it for substantive or impeachment purposes.

As was always the case, a defendant intending to use surveillance for substantive purposes must produce it to the plaintiff at least 90 days before trial. The mandatory disclosure obligation set out in Iannarella is something that claims examiners and defence counsel will need to keep in mind when considering whether to conduct post-discovery surveillance.5

Putting surveillance to work

Use of surveillance as substantive evidence:

Counsel planning on using surveillance evidence as substantive evidence must ensure they meet the disclosure rules as set out in the Rules. Subject to the Rule 30.09 exception, surveillance not properly disclosed is limited to impeachment uses only. Case law shows that Rule 30.09 is strictly enforced.

In Youseff v Cross, Justice Granger captured the strategic dilemma defense counsel face in this regard.6

“Admittedly the defendant is faced with a dilemma as production of the video might detract from the effect of the impeachment process.”7

Unsympathetically, however, he stated

“[t]he present rules of civil procedure, are designed to facilitate the production of documents including videos, if they are to be used as real evidence, in order to avoid what has commonly been referred to as “trial by ambush” ... if the videos are to be used as substantive evidence, the privilege must be waived and production made prior to the trial.”8

The strict enforcement of 30.09 was positively endorsed in later cases including Giroux v LaFrance,9 Landfoli v Fargione,10 and Smith v Morelly.11 By the time the issue reaches Smith, Madam Justice C.A. Gilmore writes that without production

“it is not reasonable to allow the Defendant to use the [unproduced] videotape as substantive evidence”

“it is not reasonable to allow the Defendant to use the [unproduced] videotape as substantive evidence” and “the rules with respect to disclosure have been put in place for a specific policy reason [which] are to be strictly adhered to."12

A defendant wishing to bring privileged surveillance evidence into the trial of an action faces a steep curve when seeking leave under rule 30.09. The recent ruling at trial in the voir dire on surveillance evidence from Rolley v MacDonell reminds counsel of the difficulty and demonstrates the judicial scrutiny surveillance will face.13 Invoking Iannarella, Justice Corthorn's reasons restated the three-part judicial test to have unproduced evidence admitted as substantive evidence, “ ...for a surveillance video recording to be admissible as substantive evidence, it must satisfy the following three-part test:

  1. Accuracy in truly representing the facts;
  2. Fairness and the absence of any intention to mislead, and;
  3. Verification on oath by a person capable of doing so.”14

If and once surveillance passes this three-part test, to be admissible as substantive evidence, the probative value of the evidence must also outweigh the prejudicial effect.15

i. Accuracy

Respecting the first step of the test, Justice Corthorn quotes the accuracy standard directly from Iannarella:

“[T]he trial judge must be satisfied that the video is a fair and accurate depiction. This has to do with technical details, such as distortion and image speed. The relevant information can be led through the evidence of the videographers during the voir dire, whom the defence should make available if necessary. Where only an excerpt of the surveillance is tendered, the trial judge must also be satisfied that it is fair, accurate and representative of the events that it purports to depict.”16

In that passage, fairness and accuracy are addressed from two perspectives. First, the passage deals with overall fairness—requiring that the video recording is a fair and accurate depiction in terms of technical details. Second, it addresses fairness and accuracy when only an excerpt of surveillance video recordings is tendered. In that instance, the excerpt tendered must be “fair, accurate and representative of the events it purports to depict.”17

ii. Fairness and the absence of intention to mislead

A key takeaway from the Smith decision is the importance of choosing competent investigators who understand and respect the section 4.1 duty of expert imparted by the Rules.18 Justice Corthorn refused the plaintiff's request in this case to draw an inference of intent to mislead, favouring the defendant.19 Although there were some aspects of the investigator's testimony that spoke to the investigation being on its face 'misleading' she concluded that the investigator was forthright, not-defensive on cross-examination, thorough and credible.20 Although ultimately unsuccessful in the motion, the defendants did not have their motion denied on the basis of a poor expert or the issue of fairness.

iii. Verification of oath

In this regard, Justice Corthorn only canvassed the issue. At a preliminary level, she accepted that the investigator did the recording, made personal observations as he did so, and was personally responsible for editing the recordings.21 A secondary issue unresolved in this case as the surveillance was already rejected under the first part of the test, was whether verification for the third part of the three-part test requires evidence beyond that of the videographer.22 A defendant wanting to bring unproduced surveillance in at trial must be attentive to these verification standards.

Use of surveillance for impeachment:

...surveillance couldn't be used to ambush the plaintiff.

If a defendant decides not to produce the surveillance in order to maintain privilege, it can still be used for impeachment purposes. Before surveillance can be used at trial it must pass a preliminary threshold common law rule from Browne v Dunn.23 The rule requires defence counsel to lay the proper evidentiary foundation prior to calling impeachment evidence. In Giroux, Justice Valin applying Browne to surveillance documents found that surveillance couldn't be used to ambush the plaintiff. Counsel must present the substance of the evidence and allow the plaintiff the opportunity to deny, explain or call evidence to rebut the surveillance.

The admissibility of impeachment evidence does not follow the same strict standard as substantive evidence under Rule 30.09. Admissibility of surveillance for the purpose of impeachment follows the standard of relevance. In Landolfi, the test was explained as:

"where evidence is tendered for impeachment purposes the admission of the evidence requires a showing of relevance to the credibility of a witness on a material matter and a further demonstration that the potential value of the proffered evidence to assist in assessing credibility outweighs the potential prejudicial effect of the evidence."24

Where the evidence is not relevant to impeach the plaintiff's oral evidence, it may be excluded and is subject to the trial judge's qualification of relevance on the facts.

Parties should not be fooled into thinking that the standard of relevance is inherently easier to meet. In Lis v Lombard Insurance Company, Justice Bryant held that proffered impeachment evidence did not, in fact, contradict the oral testimony of the plaintiff and refused to admit the surveillance evidence in fear that the jury might mischaracterize it as substantive evidence.25

Conclusion

In order to promote fairness and the objectives of efficiency and settlement, parties can expect the courts to rigorously enforce the Rules with respect to the disclosure and production of surveillance. For this reason, insurance defendants must elect tactfully with counsel the role surveillance will play. Producing surveillance evidence early runs the risk the plaintiff may mitigate the damage the evidence would otherwise pose at trial. On the other hand, maintaining privilege limits the defendant to only using the evidence for the purpose of impeachment. This strategy also carries risks. Depending on the evidence led by the plaintiff, the impeachment value of the surveillance may fall short of the relevance threshold. If rejected by the judge, the defendant's efforts and cost for obtaining the surveillance is lost.


1 2015 ONCA 110 [Iannarella].
2 See Rule 30.09 of the Ontario Rules of Civil Procedure and the Ontario Court of Appeal decision in Landolfi v Fargione, (2006) 79 OR (3d) 767, 265 DLR (4th) [Landolfi].
3 See Rule 53.08 of the Ontario Rules of Civil Procedure.
4 RRO 1990, Reg 194. The Rules of Civil Procedure [Rules].
5 Jay A. Stolberg, “Particulars of Post-Discovery Surveillance Must be Disclosed” (2015) February Insurance Bulletin.
6 (1991), 80 DLR (4th) 314 (Ont Gen Div).
7Ibid at para 10.
8 Ibid.
9 (1993), 19 CPC (3d) 12 (Ont Gen Div).
10 Supra note 2.
11 2011 ONSC 6834 [Smith].
12 Ibid at para 28.
13 2018 ONSC 164
14 Ibid at para 12.
15 Ibid at para 13.
16 Ibid at 21, quoting Iannarella at para 94.
17 Supra note 13 at para 22.
18 4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, (a) to provide opinion evidence that is fair, objective and non-partisan; (b) to provide opinion evidence that is related only to matters that are within the expert's area of expertise; and (c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.
19 Supra note 11 at para 40.
20 Ibid at paras 36-37.
21 Ibid at para 43.
22 Ibid at para 46.
23 (1893) 6 R 67, H.L [Browne].
24 Supra note 2 at para 49..

25 [2006] OTC 580. See paragraph 21 where J. Bryant describes how surveillance video did not contradict the plaintiff, despite discrepancies it depicted activities consistent with the activities described by the plaintiff in her testimony.


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