Dulude v. Lawrence et al., 2022 ONSC 1034

The plaintiff and defendant in this personal injury action brought motions for various production issues in advance of a trial.

Justice Hackland held that the defendant was not required to produce the file from the medical assessment centre he used. Draft reports were covered by litigation privilege. If the defendant called any of the experts at trial then the plaintiff would be entitled to question the experts about their files because litigation privilege would then be waived.

Justice Hackland further held that the defendant was required to have his investigator provide retainer/instruction letters, investigation logs, and identities of persons who obtained surveillance unless the defendant undertook not to call the investigator at trial.

Finally, Justice Hackland held that the plaintiff was required to produce the discovery transcript, affidavit of documents, and answers to undertakings from her action against Great West Life (which had settled shortly before the motions). The issues in dispute were so similar across the two actions that trial fairness required the defendant to have access to the documentation. Justice Hackland waived the deemed undertaking rule if it applied, but noted that Great West Life did not oppose use of the documentation in the personal injury action.

Rumney v. Nelson, 2021 ONSC 5632

This personal injury action arose from a motor vehicle accident. The plaintiff sought pre-trial orders excluding surveillance, striking the jury notice, and notifying the jury of the deductible. Justice Fowler Byrne agreed to conditionally strike the jury (subject to jury availability when the trial began).

With respect to the surveillance, Justice Fowler Byrne rejected the plaintiff’s argument that surveillance obtained while the investigator was trespassing was inadmissible, but accepted that surveillance of the plaintiff’s wedding day should be excluded because its potential prejudice would outweigh its probative value. Finally, Justice Fowler Byrne held that the jury was not to be informed of the statutory deductible. The jury’s task was to determine the quantum of damages without regard to later deductions.

Haji v. Infinity Health Centre, 2021 ONSC 5077

The plaintiff was a physiotherapist at the defendant’s clinic. In the course of work, she was shocked by a frayed plug on an electrical adjustable bed. She alleged that she suffered chronic pain, concussion, headaches, neck pain, sleep difficulties, and poor concentration due to the incident. She sued the defendant for damages and her parents commenced FLA claims. The defendant admitted liability.

Discovery evidence revealed that: the plaintiff went shopping in a mall and various big box stores during Christmas time in the weeks following the incident; she traveled to Banff with her boyfriend within a couple of months of the incident; she attended a fireworks and light display at a Zoo on the Calgary trip; she vacationed internationally once a year on average following the incident where she went out for meals and attended an NFL game. Surveillance captured the plaintiff participating in a five-kilometer obstacle course, walking her dog, wearing headphones, walking with family, and jogging for 40 minutes.

Despite this evidence, Justice Chalmers accepted the evidence of the plaintiff’s treating chronic pain expert that she suffered injuries from the electrical shock that resulted in long-term concussion symptoms, headaches, and migraines. The plaintiffs were awarded damages totaling $742,822.73, comprised of: general damages of $100,000.00; FLA damages of $60,000.00; past loss of income of $375,000.00; future care costs of $159,443.14; special damages of $24,489.35, and subrogated claims of $23,890.24.

Syed v. Petrie, 2020 ONSC 664

The plaintiff sustained injuries in a motor vehicle accident and commenced an action for damages. The defence served surveillance on plaintiffs’ counsel 7 and 4 days before trial. A number of surveillance reports from earlier periods had already been served well before trial. The most recent surveillance captured the plaintiff’s use of a snow blower and shovel, the plaintiff climbing a ladder. Most of these activities were also seen in the earlier surveillance reports. Justice Fowler Byrne held that leave was not required to use the surveillance for impeachment purposes, but it was required for substantive purposes. Plaintiff’s counsel sought a three month adjournment of the trial. Justice Fowler Byrne granted a one week adjournment and gave the defendants leave to rely upon the surveillance for substantive purposes. However, admissibility of video evidence for any purpose was subject to a mid-trial ruling on admissibility on voir dire.

Nemchin v. Green, 2019 ONCA 634

At the trial of this motor vehicle accident case, the defence was not permitted to show the jury as substantive evidence: (1) video surveillance evidence; and (2) 20 of the plaintiff’s Facebook posts. The defendant appealed on the basis that the exclusion of this evidence was wrong in law and led to a miscarriage of justice requiring a new trial. The Court of Appeal held that the trial judge erred in not admitting the video surveillance evidence but did not err in not admitting the Facebook evidence. The error in not admitting the video evidence was not sufficiently grave as to warrant a new trial. The court confirmed that video surveillance can be used at trial to impeach witness credibility on cross examination, or as substantive evidence. In order to use video evidence substantively, it must be disclosed in a timely manner in accordance with the Rules; and the trial judge must find that it depicts the evidence fairly and accurately, and that it would not negatively impact trial fairness. The trial judge erred by considering the video evidence as a whole rather than each piece individually; by holding that the evidence could not properly be contextualized without expert testimony; by holding that all of the video was inadmissible for not being disclosed in a timely manner where only some parts of it were disclosed late; and by holding that the video evidence was not certifiable as true and accurate because it was edited.

Davis v. TTC, 2018 ONSC 7527

The defendant served its sworn affidavit of documents on the plaintiff and sought her attendance at an examination for discovery. The plaintiff refused to attend at an examination until the defendant provided particulars of the surveillance listed in Schedule B of its affidavit of documents. Master Graham held that the defendant was not required to disclose particulars of surveillance until the examination for discovery of its representative. The party that first serves a notice of examination in compliance with Rule 31.04 has the right to first examination. Because the defendant properly disclosed the surveillance in its affidavit of documents and was the first to serve a notice of examination, there was no basis upon which to order disclosure of surveillance particulars.

Grech v. Scherrer, 2018 ONSC 7206

This action arose from an alleged assault on the plaintiff by his neighbour. At trial, the defendant sought to rely upon surveillance he took of the plaintiff prior to the alleged assault, both on cross-examination and as substantive evidence. The plaintiff argued that the videos constituted intrusion upon seclusion. Justice McKelvey confirmed the requirements for the admissibility of surveillance. The Court excluded five of the eight videos on the basis of relevance. With respect to the remaining three videos, the court found they did not meet the legal test for the tort of intrusion upon seclusion and should not be excluded for any other reason. They were admissible for the purposes of impeachment and as substantive evidence.

Lipovetsky v. Sun Life Assurance Company of Canada, 2018 ONSC 1649

Prior to examinations for discovery, the Defendant listed three surveillance douments, including the date, author, and recipient, in Schedule “B” of its Affidavit of Documents. The Plaintiff took the position that additional particulars were required including the form of the document, the timing of surveillance sessions, and the number of pages of any report. Master Jolley concluded that the Defendant was required, and had, set out sufficient particulars to comply with the purpose of Schedule “B” and to allow the Plaintiff to challenge the claim for privilege of the documents.

Rolley v. MacDonell, 2018 ONSC 164

In this case, the Plaintiff argued that the surveillance did not satisfy the requirements of the three part test to be admissible as substantive evidence. Specifically, the Plaintiff argued that its accuracy did not truly represent the facts, that it was unfair, and that it had not been verified by a person capable of doing so. The Plaintiff also argued that the probative value of the surveillance did not outweigh its prejudicial effect. Justice Corthorn declined to admit the surveillance on the basis that it had too many gaps to be considered “fair, accurate, and represenetative of the events purposed to be depicted in the recordings”. Justice Corthorn also found that there was little probative value because the surveillance video did not show the Plaintiff engaging in activities that contradicted his reported abilities and because experts had not opined on what the surveillance meant as to the Plaintiff’s functional abilities.