The Ontario Court of Appeal recently found that a trial judge
permitted trial by ambush in failing to require pre-trial
disclosure of surveillance evidence. In Iannarella v
Corbett,1 the Ontario Court of Appeal was asked to
assess the appropriateness of a jury charge and the use of
surveillance evidence at trial. The Court of Appeal substituted the
jury's finding of liability and concluded that the use of
surveillance footage should not have been permitted.
The Court of Appeal Overturns the Trial Decision
The plaintiffs, Mr. Iannarella and his wife, were rear-ended by
Mr. Corbett. The plaintiffs commenced a negligence claim against
Mr. Corbett and St. Lawrence Cement Inc. At trial, the jury found
that the Mr. Corbett had not been driving negligently and dismissed
the action. On the plaintiffs' appeal, the Court took issue
with a variety of rulings made by the trial judge, most
significantly, the improper admission of surveillance evidence and
the improper charge to the jury regarding such evidence.
The Use of Surveillance Evidence
The defendants hired a private investigator to prepare video
footage of Mr. Iannarella for the purpose of impeaching his
testimony regarding the severity of his injuries. The defendants
did not produce an affidavit of documents and did not otherwise
disclose the existence of this footage until it was introduced at
By way of background, parties are required to produce all
relevant documents in an affidavit of documents. If a party claims
privilege over any relevant documents, the party is required to
list those documents but does not have to provide them. The party
is precluded from relying on any of the privileged documents
except for the purpose of impeaching the testimony of a
witness. Surveillance evidence would fall within the class of
documents protected by privilege.
The Court of Appeal's decision highlighted two problems with
the admission of the surveillance footage in this case.
The first problem was that the defendants had not provided an
affidavit of documents. Since the defendants had not disclosed the
existence of the surveillance footage, as required, they were not
permitted to rely on the footage to impeach Mr. Iannarella's
testimony. The Court of Appeal found that the trial judge ought to
have ordered the defendants to serve an affidavit of documents
disclosing the surveillance or at least disclosing particulars and
should have offered the plaintiffs an adjournment to review the
The second problem was that the defendants' treatment of the
surveillance evidence went beyond simply impeaching Mr.
Iannarella's testimony. The defendants' counsel, and the
trial judge, improperly encouraged the jury to use the footage as
substantive evidence with respect to Mr. Iannarella's injuries
and, in doing so, went beyond the scope of impeachment.
Key Take-away Principle
So why is this decision relevant? It illustrates the added
benefit of pre-trial disclosure - allowing parties to assess
litigation risk. This is particularly helpful in product liability
cases, in which video surveillance is often used as a way of
assessing a plaintiff's injuries. Had the plaintiffs been
provided with the surveillance video, or had they known that it
existed, they would have had a more realistic assessment of their
prospect of success at trial, which potentially would have
1. 2015 ONCA 110.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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