As a result of this accident, the appellant claimed he suffered a rotator cuff injury to his left shoulder. Despite two surgeries to repair the injury, Iannarella reported suffering from chronic pain and was unable to return to work. Following the conclusion of a 15 day trial, the jury found that the respondent had not been driving negligently and the action was dismissed on the ground of liability.
The Onus for Liability
Where a rear-end collision has occurred, the onus is on the defendant to prove that he or she could not have avoided the accident through the exercise of reasonable care. This is often expressed by trial judges through a standard charge. The relevant portion reads:
Generally speaking, when one car runs into another from behind, in the absence of any excuse for a such a collision, the driver of the rear car must satisfy you that the collision did not occur as a result of his negligence.
Iannarella's trial counsel unsuccessfully sought a directed verdict on liability on this issue because the defendant/respondent had not demonstrated a lack of negligence on its part. In rejecting this argument, the trial judge characterized the accident as "nearer an emergent situation than an inevitable accident situation."2 The trial judge advised the jury that in an emergent situation "the plaintiff has the burden of establishing on a balance of probabilities all of the facts necessary to prove the following issues, that he was injured and that the negligence of the defendant driver was the effective cause of his injuries."3 In concluding his charge to the jury on liability he stated: "The onus of establishing an emergency situation, and in measuring his conduct within it, isn't onus upon the defendant."4 On the basis of this charge, the jury found that the respondent was not liable for the accident.
The Court of Appeal firmly rejected the trial judge's deviation from the standard charge, noted above. The Court also made one slight modification to the recommended standard charge by deleting the words "in the absence of any excuse for such a collision". The Court confirmed that once the plaintiff has proven that a rear-end collision has occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that he or she was not negligent. This is applicable in all rear-end collision cases, including an emergency situation, as was alleged in this case. On the basis of the evidence regarding liability at trial, the Court substituted a finding of liability against the respondent driver since he did not demonstrate that he had properly adjusted his driving to the weather conditions.
Disclosure of Surveillance
Counsel for the respondents arranged to have surveillance conducted on Iannarella on multiple occasions following the commencement of litigation. At trial, the judge permitted counsel to play the surveillance video, cross-examine the appellant on its contents and make the video an exhibit, despite the fact that the respondents had not disclosed its existence in an affidavit of documents nor had they provided particulars as required by the Rules of Civil Procedure. The appellants took the position that the trial judge erred by refusing their pre-trial request to order production of an affidavit of documents or particulars of surveillance, in permitting the respondents to use the surveillance evidence despite their failure to properly disclose it and in failing to properly instruct the jury on the proper use of the surveillance evidence in their deliberations. In finding that the trial judge had erred in admitting this evidence, the Court of Appeal emphasized the importance of promoting settlement and interpreting the Rules as they operate in conjunction with one another rather than discretely.
The Rules clearly outline the production obligations of counsel and the requirement to produce an affidavit of documents in Rules 30.02 and 30.03, respectively. The consequences for failing to comply with these requirements are found in Rule 30.08(1)(a). This rule prescribes that where a document is favourable to the party's case, it may not be utilized at trial, except with leave of the court. Rule 30.09 provides an exception for privileged documents that have not been disclosed to be used solely to impeach the testimony of a witness. The case law reaffirms that surveillance can only be used as substantive evidence when privilege has been waived and if it has not; it can only be used for impeachment purposes.
The Court held that even in situations where an affidavit of documents has not been requested, one must be provided to comply with the Rules. Parties must disclose the existence of any surveillance in a Schedule B to an affidavit of documents as a privileged document. The plaintiff may then seek particulars of the surveillance. While the films themselves remain privileged, the facts disclosed by the films do not.
The respondents attempted to shield themselves from these obligations by relying on rule 48.04, which prevents either party from bringing any motion or form of discovery once a matter has been set down for trial without leave of the court. Counsel argued that the appellants were not entitled to an affidavit of documents or surveillance particulars because they had waived their right to examinations for discovery and had not sought an affidavit of documents until after the matter was set down for trial.
The Court of Appeal rejected this argument on a strict reading of the Rules. Rule 31.03(1) provides that while a party "may" conduct an examination for discovery, Rule 30.03(1) requires that a party "shall" serve an affidavit of documents. The production of an affidavit of documents, including a Schedule B is mandatory. They further relied on 48.04(1), which indicates that this rule does not relieve any party from its obligation under 30.07 to disclose documents subsequently discovered or not previously disclosed in an affidavit of documents. The Rules do not provide parties with an exception to disclosure of surveillance where it has not provided an affidavit of documents. Non-compliance with the Rules should not be rewarded. The Court also made clear that in the wake of the Supreme Court's decision in Hyrniak v Mauldin5 promoting efficiency in the litigation process that this ruling does not mean that the requirement to produce an affidavit of documents cannot be waived but that this waiver should be explicit.
In determining that the surveillance should have been provided, the Court indicated that the trial judge should have properly considered how this case might have developed if the respondents had complied with the Rules. They emphasized that the Rules are designed to require complete disclosure so as to avoid trial by ambush, which is what occurred in this case.
The Court rejected the use of the surveillance evidence as it was utilized for the truth of its contents rather than for impeachment of testimony, as purported by counsel for the respondents. Even if the Court had accepted this submission, it would have still rejected the respondents' position that the evidence was admissible on the basis of the exception outlined in Rule 30.09. The Court emphasized the importance of interpreting the Rules in conjunction with one another. The use of surveillance to impeach the testimony of a witness is only permitted where a party has asserted a claim of privilege. Rule 30.03 requires this assertion to be made in an affidavit of documents, which serves to link the Rules in order to require adequate disclosure. The Court held that this link was severed to the appellant's prejudice and, as a result, the evidence should have been rejected, even for the use of impeachment.
Lessons Learned from the Court of Appeal
Given the strong statement from the Ontario Court of Appeal regarding the actions of the trial judge in this decision, civil litigators - and personal injury defence lawyers especially - should take note of the bright line lessons here. Specifically, the following should be taken away:
The onus for liability in a rear-end collision lies with the defendant driver. It is his/her obligation to demonstrate that the accident was not caused by their negligence and in the absence of such evidence they will be deemed at-fault.
An affidavit of documents is required under the Rules, even where one has not been requested by opposing counsel. While this requirement may be waived, it must be done explicitly. A waiver of other aspects of the litigation process (i.e. examinations for discovery) does not mean that other disclosure obligations do not have to be fulfilled.
If the existence of surveillance has not been disclosed properly in an affidavit of documents then it will not be properly admitted at trial for any purpose. Surveillance evidence can only be used to impeach the testimony of a witness and even then, it can only be used if privilege has been asserted by counsel and it's existence has been disclosed via affidavit of documents.
- The underlying purpose of the Rules should be considered in all situations. No rule exists in a vacuum and counsel should consider both the interplay of the Rules with each other, as well as the underlying objectives of full disclosure and prompt settlement embodied in them. When in doubt, tactics that will result in ‘trial by ambush' should be avoided at all costs!
Read the full Case Decision.
1 2015 ONCA 110..
2 Ibid at para 15.
3Ibid at para 16.
5 2014 SCC 7.
