Prior to setting an action down for trial, any surveillance taken must be disclosed in the party's Affidavit of Documents. Since there is an obligation on each party to an action to continuously update their Affidavit of Documents, disclosing any surveillance is necessary pre and post discovery.¹ If compliant, the parties would be well aware of any surveillance conducted prior to trial. The party surveilled also has the right to know the particulars of the surveillance footage, such as the date and time the surveillance took place, the location of the surveillance, the nature and duration of the activities depicted, and the names and addresses of the investigators.² The purpose of these requirements is to avoid "ambushing" at trial and to allow the surveilled party an opportunity to evaluate the evidence and determine what steps, if any, to take with regard to possible settlement.

There are different rules that must be deliberated when considering whether to use the obtained surveillance footage at trial for impeachment or substantive purposes. The decision in Iannarella v Corbett indicated that if the party conducting the surveillance wants to use the surveillance for impeaching a plaintiff's credibility, they will be required to provide the particulars of the footage prior to trial. There is no requirement to produce the actual footage for impeachment.

However, in order to admit surveillance at trial for substantive purposes, the party conducting the surveillance is required to produce the footage to the surveilled party at least 90 days before trial.³

Before the surveillance is admitted at trial, a voir dire will be held to determine its admissibility. The judge will apply the following three-prong test to make his or her determination:

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.⁴

In addition, the probative value of the surveillance evidence must outweigh its prejudicial effect.

The Ontario Court of Appeal defined the three-prong test as follows:

The 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.⁵

...the three-prong test and the decisions have helped pave the landscape in considering the admissibility of surveillance.

In the recent motions in Nemchin v Green and Rolley v Macdonell,⁶ the Court applied the three-prong test and the decisions have helped pave the landscape in considering the admissibility of surveillance. Madam Justice Corthorn presided over both cases. Although she stated neither decision changed the legal test for the admission of surveillance evidence as substantive evidence, both decisions highlighted the two following points:

1. The quality of surveillance video recordings required to satisfy the three-part test, and;
2. The practicalities to be addressed by videographers and investigation companies in attempting to secure surveillance evidence of the requisite quality.⁷

Nemchin v Green

In 2017, the Court in Nemchin v Green applied the three-prong test when determining the admissibility of the obtained surveillance. The judge took issue with several details regarding the quality of the surveillance:

1. Accuracy in truly representing the facts

• Time-stamping inconsistencies;
• Editing out footage that depicted the subject;
• Certain edits included changing the frame to enhance the view of the plaintiff resulting in segments without a time stamp;
• The investigator did not review the edited surveillance and did not know what editing was done to his video footage, and;
• The footage obtained was filled with ‘gaps' (periods during which the surveillance was interrupted for any number of reasons).

The judge expressed where a significant amount of time was edited from the footage, it resulted in an incomplete and/or inaccurate depiction of the plaintiff's activities. This can be the result even if the gaps in the footage are understandable (i.e. the investigator is alone in his/her vehicle and is required to drive so as to keep the subject in view).⁸

It is important to note that the judge in Nemchin v Green also stated that each issue on their own may not be sufficient to preclude the surveillance from satisfying the first prong of the test, however the cumulative effect of each issue was such that the judge found that the first prong of the test was not satisfied.

2. Fairness and intention to mislead

...the investigator misunderstood his role and in turn was overzealous.

While the judge determined that the investigator did not intend to mislead, he had concerns with some of the reporting and believed the investigator misunderstood his role and in turn was overzealous. The judge thought that it was inappropriate for an investigator to include his personal, subjective observations of the surveilled party in the report in any way whatsoever.⁹ The judge also found that some of the descriptions in the surveillance reports were subjective when compared to the contents of the video, which led him to believe that the surveillance was an inaccurate representation of the substantive content and/or time of occurrence.¹⁰

3. Verification on oath by a person capable of doing so

The judge stated that the investigator was capable of verifying that he, in fact, conducted the surveillance, however, he was unable to verify what was involved in the editing process and did not see the edited footage before it was produced. Due to these facts, the judge found that the third prong of the test was not satisfied.¹¹

Probative value vs prejudicial effect

The judge concluded that since the three-prong test was not satisfied, it was unnecessary to weigh the probative value of the surveillance evidence against the potential prejudicial effect. However, the judge did state that even if it did meet the three-prong test, it would have still been inadmissible because the probative value was minimal. She stated that for surveillance evidence to be admissible, "the probative value of the surveillance video [footage] must be such that it is capable of contradicting, challenging, or impugning the witness' testimony."¹²

Surveillance obtained after the action is set down for trial

In order to rely on surveillance as substantive evidence that was obtained after the action was set down for trial, the party relying on the surveillance must seek leave.¹³ The judge in Nemchin v Green cited her interpretation of the rules when dealing with surveillance that was obtained after the action is set down for trial:

I interpret subrules 48.04(1) and (2)(b) as:

a) Requiring the parties to an action to complete their documentary disclosure obligations, using all reasonable efforts, prior to the action being set down or listed for trial;

b) Not relieving any party from the obligation to disclose documents subsequently discovered, and;

c) Requiring a party to seek leave of the court to rely at trial on a document discovered after the action has been set down for trial even if the party has complied with their rule 30.07 documentary disclosure obligations. Without this requirement:

i There would be no impetus or motivation for a party who discovers a document after the action has been set down for trial to disclose the document in a timely manner, and;

ii The potential for ‘trial by ambush' would continue to exist.¹⁴

The judge determined that it was not reasonable in this case for the defendant to expect the plaintiff, in the two weeks prior to and during the first week of a multi-week trial, to be able to address the prejudice arising by reason of disclosure and production of the surveillance obtained after the action was set down for trial.¹⁵ However, case law does indicate that surveillance introduced after the action is set down for trial can be admissible for impeachment purposes.

Rolley v. MacDonell

In Rolley v. MacDonell, a motion was brought by the defendant for leave to rely on surveillance footage as substantive evidence at trial." The admissibility of three separate surveillance videos taken over a one-year span was at issue.

... there were several gaps in the footage that were frequent and significant.

In addressing one of the three surveillance videos, the judge found that there were several gaps in the footage that were frequent and significant. The judge determined that the footage could not be considered to accurately portray the activities that the plaintiff was engaged in, even though he agreed with the defendant that the explanations for the gaps were reasonable and plausible. Some examples of the explanations given by the investigator were that he was alone in a vehicle when recording and had to make a positional adjustment to ensure the subject remained in the shot.¹⁶

In considering the second prong of the test, the judge found the investigator to be forthright and understanding of the fact that his role was not to capture footage in a way that was biased toward one party. While the plaintiffs asserted that the investigator had intent to mislead based on the footage captured, the investigator's explanation was considered to be just as consistent as the assertion. Without anything more, the judge was not prepared to draw the inference requested by the plaintiffs. However, with respect to fairness, the judge referred to her decision on the first part of the three-prong test and found that the surveillance did not fairly depict the event. Therefore, this did not satisfy the second prong of the test.

In addressing the third prong, the judge determined that the investigator provided verification under oath of the surveillance conducted because the investigator conducted the recording, made personal observations as he did so, and edited the recordings himself.¹⁷ However, since the surveillance footage did not satisfy the first two prongs of the test, the judge found it unnecessary to address the issue.

The judge applied the same test to the other two surveillance videos in question and found that they satisfied the three-prong test. However, when considering the probative value of the videos versus the prejudicial effect, she found that they depicted "nothing that challenged, contradicted or impugned" the evidence of the plaintiff's wife. The judge determined that both videos had minimal probative value and were deemed inadmissible.¹⁸

Notwithstanding the determination that the defendant was not entitled to rely on any portion of the surveillance video recordings as substantive evidence, the judge mentioned that the defendant did not abandon the possibility of attempting to rely on the surveillance for impeachment purposes. However, if he wishes to do so, there must be a voir dire to address the two prong test in this regard.

The decisions in these cases indicate that the entire process of obtaining surveillance is crucial to its admissibility. Giving clear instructions and guaranteeing that each of the issues raised in Nemchin v Green and recapped in Rolley v MacDonell are addressed and avoided when hiring a surveillance investigator will be vital in determining whether the surveillance is admissible. To reiterate the words of Justice Corthon, a party seeking to rely on surveillance evidence for substantive purposes should give careful consideration to the quality of the surveillance.¹⁹

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¹ Iannarella v. Corbett, 2015 ONCA 110, [Iannarella v. Corbett] at para 52; Rules of Civil Procedure, RRO 1990, Reg 194, Rule 30.07
² Ibid at para 40.
³ Rules of Civil Procedure, RRO 1990, Reg 194, Rule 30.09
⁴ Supra note 1, para. 94 and Nemchin v. Green, 2017 ONSC 1321[Nemchin v. Green], at para. 16
⁵ Supra note 1 at para 94.
⁶ Rolley v MacDonell, 2018 ONSC 164 [Rolley v MacDonell]
⁷ Ibid at para 74.
⁸ Nemchin v. Green at para 45
⁹ Supra note 8, para 52
¹⁰ Ibid at para 48
¹¹ Ibid at paras 61-62.
¹² Ibid at para 64; Iannarella, at para. 99 − quoting from Lis v. Lombard Insurance Co. (2006), 39 C.C.L.I. (4th) 108 (S.C.J.) at para. 15
¹³ Nemchin v Green at para 77
¹⁴ Supra note 8, at para 78
¹⁵ Ibid at para 83
¹⁶ Supra note 6 at para 25
¹⁷ Ibid para 43.
¹⁸ Ibid at para 56.
¹⁹ Supra note 6, para 75

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