In Nemchin v. Green,1 the Court of Appeal for Ontario clarified a number of important aspects of the process for determining the admissibility of video surveillance evidence at trial. Specifically, the Court distinguished between using video surveillance to impeach the credibility of a witness and using it as substantive evidence at trial. Though the test for the admissibility of surveillance evidence is the same in both cases, seeking admission of evidence for the purpose of impeaching a witness engages the rule in Browne v. Dunn,2 whereas seeking admission for substantive purposes does not. In each instance, the trial judge and counsel must assess, as a matter of trial fairness, where the proposed evidence falls on a spectrum: major discrepancies and contradictions ought to be put directly to a witness, whereas minor discrepancies do not.
Importantly, the Court also issued a few words of caution on disclosure. First, if the purpose is to use video surveillance footage as substantive evidence at trial, advance disclosure requirements from the Rules of Civil Procedure3 (Rules) strictly apply. Second, Rule 53.08 of the Rules, which gives the court discretion to admit evidence that is disclosed late by adjourning the trial or imposing other terms, is not absolutely mandatory, and trial judges retain discretion to exclude evidence that is disclosed late altogether, regardless of its probative value.
In 2010, Yvonne Green made a left hand turn into oncoming
traffic and collided with Tanya Nemchin. Following the accident,
Ms. Nemchin's previously diagnosed PTSD worsened and she
developed major depression. A jury found Ms. Green 90 percent
liable for negligence, and ordered her to pay Ms. Nemchin
approximately CA$700,000 in damages. At trial, counsel for Ms.
Green attempted to lead video surveillance footage and Facebook
posts to establish that Ms. Nemchin's quality of life was not
as impacted by the accident as she claimed. The trial judge refused
to admit both the video surveillance evidence and the Facebook
posts. Counsel for Ms. Green argued the exclusion of evidence led
to a miscarriage of justice and appealed the decision.
Accordingly, there were three issues before the Court of Appeal:
- Did the trial judge err in excluding the surveillance evidence?
- Did the trial judge err in excluding the Facebook evidence?
- If so, were the errors sufficiently grave to warrant a new trial?
1. The trial judge erred in excluding the surveillance evidence
The bulk of the Court's analysis centered on the admissibility of the video surveillance evidence.
The Court noted that there are two reasons why video surveillance evidence is traditionally submitted: either to challenge the credibility of a witness, or as substantive evidence in its own right. If the evidence is disclosed in accordance with the Rules, it may be used to both impeach a witness and as substantive evidence.4
As detailed in Iannarella v. Corbett,5 the test for admissibility of video surveillance evidence is the same, regardless of whether it is being used to impeach or as substantive evidence. The trial judge must hold a voir dire to ensure the video is fair and accurate, and to ensure it does not impede trial fairness. Each piece of submitted evidence is to be individually considered through a "discrete and granular"6 assessment. It is an error to assess the video evidence as a whole.
Only on the issue of fairness is there a difference in adducing video surveillance intended to impeach or to be used as substantive evidence. Parties intending to use evidence to impeach must apply the rule in Browne v. Dunn, which states that before bringing evidence intended to contradict a witness, the party calling such evidence must give the witness the opportunity to respond to the allegations.7
At trial, the defendant, Ms. Green, sought to use three separate video entries only as substantive evidence. The Court of Appeal found that the trial judge made four errors of law in determining the evidence was inadmissible. First, the trial judge held the evidence was of limited probative value because it did not contradict evidence presented by the plaintiff, Ms. Nemchin. However the Court of Appeal noted it is irrelevant whether the evidence was contradictory, as it was only being used as substantive evidence. Second, the trial judge held that because the footage was meant to go to the effect or existence of Ms. Nemchin's PTSD, it required accompanying expert opinion evidence. However, the trial judge did not apply the same analysis to similar video evidence that the plaintiff presented, and therefore erred in her assessment.
Third, the trial judge refused to admit the evidence because one of the three video entries was not disclosed in a timely manner. Nevertheless, two of the three videos were properly disclosed. Here, the Court of Appeal made two observations: first, the trial judge erred in assessing the video evidence as a whole. The late disclosure of one piece of video evidence has no bearing on the two other videos that were disclosed on time. Second, the video that was disclosed late was essentially the same as video evidence the plaintiff presented. Though the trial judge did have discretion to exclude the footage, admitting the late video would have posed no surprise or prejudice to the plaintiff. The trial judge should have assessed whether the late-disclosed evidence should be admitted on the basis of fairness and surprise, and erred in focusing exclusively on the timing of the disclosure.8
Finally, the trial judge erred in finding that the videos were not admissible because of how they were edited. The trial judge did note four concerns with the editing of the video, but the Court of Appeal found none were persuasive. In addition, the Court remarked that the trial judge again failed to take a granular approach to her analysis. Instead of considering each video separately and focusing on whether the excerpts were fair and accurate, the trial judge emphasized concerns that were all matters of weight and should have been left for the jury to consider.
Accordingly, the Court of Appeal held that the trial judge erred in law, and that none of her grounds supported excluding the video surveillance evidence.
2. The trial judge did not err in excluding the Facebook posts
Though the Court found that the video surveillance evidence may have been admissible despite the delay in disclosure, it did not find the same for the Facebook posts.
Defence counsel attempted to adduce approximately 20 Facebook posts on which they wanted to cross-examine Ms. Nemchin. Although the defence collected the posts well in advance of the trial, they did not disclose them until near the end of Ms. Nemchin's cross-examination. The trial judge refused to admit the Facebook posts on the basis that it would be too prejudicial to Ms. Nemchin to have to prepare and present a case on the posts that far into the proceedings.9
The Court of Appeal noted that these posts would have been critical for the defence's cross-examination of Ms. Nemchin, and may have been valuable in challenging her functionality. Regardless of their probative value, however, the possible prejudice to the plaintiff outweighed any use the posts may have provided the defence.
In advancing its position, the defence relied on Rule 53.08 of the Rules,10 which states that, when sought, leave to adduce late-disclosed evidence shall be granted, unless to do so would cause prejudice or undue delay. If necessary, an adjournment may be granted. However, the Court re-emphasized that the rule is not absolutely mandatory. As it found in Iannarella, even if prejudice could be rectified through an adjournment, it may not be reasonable to adjourn an ongoing civil jury trial to allow a party to adduce evidence. Accordingly, the Court found that the trial judge did not err in excluding the Facebook posts.11
3. The appeal was dismissed
Though the trial judge erred in excluding the surveillance footage, the video evidence was not significant enough to affect the jury's verdict on damages. As such, the appeal was dismissed.
Though this judgment rectified several errors from the trial decision, a main takeaway is the importance of prompt disclosure of any evidence upon which a party intends to rely. Despite recognizing the potential value of the Facebook posts to the defence's position, the Court of Appeal upheld the trial judge's decision to exclude the evidence based on potential prejudice to the plaintiff, even though that prejudice could have been rectified with an adjournment. This demonstrates that a party may not rely on the mandatory language of Rule 53.08 to save evidence in the event disclosure is not made on time. Accordingly, parties and counsel would do well to remember that if disclosure rules are not properly followed, they may lose the right to use the evidence at trial, regardless of its probative value.
This decision is also helpful for its clarification of the admission of video surveillance evidence. It is important to distinguish between video footage adduced as a tool for impeachment and footage adduced as substantive evidence. Though the test for admission does not differ between the two, the intended purpose of the evidence will determine any additional steps for the party seeking to adduce it. If the video is being used for impeachment, the party seeking to present the evidence must give the witness the opportunity to respond ahead of time. And again, parties must pay attention to the Rules: if they want to use video surveillance evidence as substantive evidence, or as both substantive evidence and a tool for impeachment, timely disclosure is a must. The case is a stark reminder that the Rules are not meant to be broken.
1 2019 ONCA 634 [Nemchin].↩
2 1893 CanLII 65 (FOREP).↩
3 RRO 1990, Reg 194 [Rules].↩
4 Nemchin, supra note 1 at para 15.↩
5 2015 ONCA 110 [Iannarella].↩
6 Nemchin, supra note 1 at para 12.↩
7 Ibid at para 27.↩
8 Ibid at para 50.↩
9 Nemchin, supra note 1 at para 66.↩
10 Supra note 3.↩
11 Nemchin, supra note 1 at para 68.↩
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