The Ontario Court of Appeal recently clarified the long-standing
issue of whether defence counsel must disclose the existence of
surveillance prior to trial.
In Iannarella v Corbett1, the plaintiff
(Iannarella) was rear-ended by the defendant (Corbett). Iannarella
claimed he suffered a rotator cuff injury, which limited his
During Iannarella's cross-examination, the judge permitted
defence counsel to tender a disc containing 27 minutes of video
from the 130 hours of surveillance that had been conducted, even
though the existence of the surveillance had not been disclosed to
plaintiff's counsel prior to trial. The jury found Corbett was
not liable and Iannarella appealed.
The Ontario Court of Appeal decision
The Court of Appeal overturned the lower court's decision on
several issues, most notably that of the permissible use of
surveillance. It entered a finding of liability against Corbett and
ordered a new trial on damages.
The court held that defence counsel must
disclose any and all surveillance in its affidavit of
documents. In making this decision, the court noted surveillance is
a powerful piece of evidence that can facilitate settlement. By
allowing defence counsel to use the surveillance at trial, the
court concluded that the trial judge had enabled a "trial by
ambush." The court therefore found the trial judge erred by
granting leave to admit the video surveillance.
The court further justified the decision by focusing on the
party's disclosure obligations. As stated in Rule 30.08(1)(a)
of the Rules of Civil Procedure, a party may not use a favourable
document at trial without leave of the court if, (i) it has failed
to disclose it; or (ii) it has failed to update an inaccurate or
incomplete answer on discovery. The court further clarified that
surveillance must be disclosed even where the document is only
intended to be used for impeachment purposes.
In the past, defence counsel have sometimes relied on ambiguity
in the case law to assert that surveillance need not be disclosed
if it is only going to be used for impeachment purposes. The Court
of Appeal's decision in Iannarella makes it clear that
disclosing surveillance is mandatory – defence counsel must
disclose the existence of surveillance in its affidavit of
documents, and remember to update its affidavit when surveillance
is conducted at a later stage in the litigation process.
Typically, surveillance will be identified in Schedule
"B" to one's affidavit of documents, and then
plaintiff's counsel will be afforded the opportunity to seek
particulars during the discovery examinations. On request, defence
counsel must disclose the date, time and location of
surveillance, the nature and duration of the
activities depicted, as well as the names and
addresses of videographers. This is so because, while the
surveillance video is privileged, the facts it discloses are
1 2015 ONCA 110.
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