Presented at a Client Seminar on Surveillance
The following is an overview along with the key takeaways on recent case law regarding the admissibility of surveillance and when surveillance should be disclosed in accident benefit disputes before the License Appeal Tribunal and tort claims.
I - ACCIDENT BENEFITS CLAIMS
The LAT Rules regarding disclosure are in conflict with the current case law on when surveillance should be disclosed.
1. The LAT Rules & Procedure
An AABS case conference summary form specifically requires that a party disclose their key documents, stating:
Non-compliance with the Tribunal's orders may result in further procedural orders, including the dismissal of the application.
Rule 9 of the Licence Appeal Tribunal Rules of Practice sets out disclosure requirements. Rule 9.4 states that if you do not comply with the disclosure requirements you may not rely on the document or thing as evidence, or call the witnesses to give evidence without the consent of the Tribunal.
The specific mention of disclosure rules in the AABS Case Conference Summary Form is consistent with Rule 20.4 of the Licence Appeal Tribunal Rules of Practice which addresses the specific requirements of an AABS Case Conference Summary Form. Arguably, surveillance is a key document.
Rule 9.2 of the Licence Appeal Tribunal Rules of Practice states that at least 10 days before a hearing, a party must disclose to the other parties the existence of every document and anything else the party intends to present as evidence at the hearing; disclose a list of witnesses whom the party may call to give evidence at the hearing along with a description of their anticipated evidence; and, serve a copy of the documents on the other parties.1 Therefore, absent an order prohibiting the disclosure of further key documents (which is discussed below), to be admissible, disclosure must be served 10 days prior to a hearing. As stated above, Rule 9.4 requires a party to seek the consent of the Tribunal to admit evidence or call a witness when they have not complied with Rule 9.2.
2. 17-002535/AABS v Aviva Insurance Canada
Despite the specific wording of Rule 9.2, in the matter of 17-002535/AABS v Aviva Insurance Canada, an adjudicator excluded surveillance evidence because the respondent failed to disclose its existence contrary to an adjudicator's order at a case conference. The case conference order explicitly stated: "No additional documents or records may be filed without the permission of the Tribunal".2
3. 16-000342 v. Aviva Insurance Company of Canada
In the matter of 16-000342 v. Aviva Insurance Company of Canada,3 the adjudicator consented to the admissibility of surveillance evidence that did not comply with the Licence Appeal Tribunal Rules of Practice because the value of the evidence outweighed any prejudice the applicant suffered as a result of the respondent's breach.
Key Takeaways of Surveillance in Accident Benefits Claims
In conclusion, it seems that the best practice is to conduct surveillance prior to the case conference and disclose its existence in the AABS Case Conference Summary Form. You must disclose the existence of surveillance in a case conference if it exists at the time of the case conference because it is a key document. If this isn't done, there is a risk that the adjudicator will order that no additional key documents be disclosed, depriving a party of conducting admissible surveillance. Of course, it may make sense to advise the adjudicator at the case conference that you may obtain surveillance after the case conference and will serve it in accordance with the rules. The problem with this method would obviously be making the claimant surveillance conscious. If surveillance is conducted after the case conference, and the case conference adjudicator did not made an order prohibiting further document disclosure, an insurer can serve surveillance 10 days before the case conference.
II - TORT CLAIMS
1. Iannarella v. Corbett, 2015 ONCA 110 (Motor Vehicle Accident)
The case of Ianarella v. Corbett involved a jury trial at which, contrary to the objections of counsel for the plaintiff, counsel for the defendant was permitted to show a twenty-seven-minute surveillance video during the cross-examination of the plaintiff. The video had neither been disclosed to the plaintiff nor listed in the defendant's affidavit of documents. The trial judge admitted the video footage on the basis that the evidence was to be used for impeachment.
On appeal, the Court of Appeal for Ontario set aside the judgment at trial, ordered a new trial and commented that "a series of rulings resulted in a trial by ambush, contrary to the letter and the spirit of the Rules of Civil Procedure".4 The court also clarified the rules regarding the disclosure of surveillance in tort actions and the ongoing duty to serve an updated affidavit of documents. The court ruled that a party is obliged by a combination of Rules 30.06 and 30.07(b) of the Rules of Civil Procedure to provide an updated affidavit of documents listing new surveillance. Pursuant to Rule 31.09(1)(b), a party must disclose the particulars of subsequent surveillance upon request.5
2. Bishop-Gittens v. Lim, 2015 ONSC 3553 (Motor Vehicle Accident)
In the case of Bishop-Gittens v. Lim, the defendant disclosed surveillance on May 8, 2015, and trial commenced on May 19, 2015. The defendant sought to rely on the surveillance and video footage for the purposes of impeachment of the plaintiff's evidence at trial. The plaintiff brought a pre-trial motion to exclude the surveillance evidence. The defendant had not delivered an updated affidavit of documents listing the surveillance that was conducted post-discovery. The court found that the defendant was in breach of the Rules of Civil Procedure and the decision in Ianarella v. Corbett; however, found that they should be entitled to rely on the evidence for the purposes of impeachment noting "the exclusion of the surveillance evidence in this case might well prevent the defendant from being able to try the case on its merits."6 The court then distinguished this case from Ianarella v. Corbett, noting that in that case, the prejudice to the plaintiff was "baked in" because the trial was well underway when the surveillance was presented.7 The court concluded that if the plaintiff requested an adjournment of the trial, it would be granted and the defendant would have to pay costs thrown away.
3. Jamieson v. Kapashesit, 2018 ONSC 279 (Motor Vehicle Accident)
In the case of Jamieson v. Kapashesit, counsel for the defendant brought a motion to admit recently obtained surveillance four days prior to the trial start and after the jury had been selected. The trial was to commence on September 25, 2017, and the surveillance had been conducted between August 10, 2017, and August 14, 2017. Counsel for the defendants served the surveillance on September 14, 2017. Following argument, the parties decided to adjourn the trial. The plaintiffs then asked for costs of the adjournment on the basis that the adjournment was necessary due to the conduct of the defendants. In determining costs, the court considered Iannarella v. Corbett and noted that "the jurisprudence has made it abundantly clear that the days of surprise and trial by ambush are to be a thing of the past",8 finding that the defendants failed to comply with Rules 30.08 and 30.09 of the Rules of Civil Procedure. The court found that the conduct of the defendants primarily necessitated that a mistrial be declared and that an adjournment be granted in order to avoid prejudice to any party. Costs in the amount of $10,000.00 were awarded against the defendants.
4. Wray v. Pereira, 2018 ONSC 4623 (Motor Vehicle Accident)
Wray v. Pereira involved a jury trial at which counsel for the defendant sought leave to introduce surveillance evidence. Counsel for the defendant wished to use the evidence for both substantive purposes and impeachment. The surveillance had been disclosed in the Schedule B of the defendant two years before the trial but the surveillance report was not produced to the plaintiff until the defendant delivered their pre-trial memorandum on April 9, 2018. The pre-trial took place on April 24, 2018, at which point the parties were ordered to commence their trial on May 14, 2018. It was not until April 27, 2018, that counsel for the defendant formally served their defence medical report wherein their expert, who assessed the plaintiff on January 16, 2018, noted that he had watched surveillance footage of the plaintiff. Counsel for the plaintiff requested a copy of the video footage of the plaintiff on April 30, 2018, and May 2, 2018. Counsel for the defendant produced the surveillance footage on May 7, 2014. The trial commenced on May 15, 2018, and counsel for the defendant referenced surveillance in his opening. The court found that the surveillance footage should have been delivered to the plaintiff for inspection by January 2018, noting that "where a party has provided a document over which privilege is claimed to a health practitioner for the purpose of preparing a report pursuant to rule 33.06, there is a waiver of litigation privilege"9 The court also noted that despite the defence medical taking place in January 2018, the report was not delivered until April 2018 which also prevented the plaintiff from knowing that a waiver of privilege had occurred.10 The court concluded that "by failing to produce the surveillance video when they were required to do so, I have concluded that there will be significant prejudice to the plaintiff if the evidence is used substantively by the defence".11
5. Rolley v. MacDonell, 2018 ONSC 164 (Motor Vehicle Accident)
In Rolley v. MacDonell, the defendant brought a motion at trial for leave to rely on surveillance footage as substantive evidence. Three rounds of surveillance were carried out over the period of 2017. The parties agreed that in order for a surveillance video to be admissible as substantive evidence, it must satisfy the following three-part test: (1) Accuracy in truly representing the facts; (2) Fairness and the absence of intention to mislead; and, (3) Verification on oath by a person capable of doing so.12 The court observed that in addition to satisfying the three-part test, the probative value of the surveillance must outweigh its prejudicial effect. The parties disagreed over whether the surveillance videos satisfied the admissibility test. With regard to the first video, the court found that there were various gaps in the surveillance video recordings that were frequent and significant. The recordings depicted anywhere from 15 to 27 to 50 percent of the time during which the plaintiff was engaged in an activity. As a result, they could not be considered fair, accurate, and representative of the events purported to be depicted in the recordings. Accordingly, the court found that the video recordings were also not fair. Given the surveillance did not satisfy the first two parts of the test, the court did not address the third part. The court did find that the two other videos satisfied the three-part test for admissibility; however, it was found that they had minimum probative value as they did not depict anything that challenged, contradicted or impugned the evidence.
Key Takeaways on Surveillance in Tort Cases
A party who seeks to rely on surveillance at trial must disclose its existence in Schedule of an affidavit of documents. If surveillance is conducted after a discovery, a party must provide an updated affidavit of documents listing the surveillance and a summary of the particulars if requested. If the surveillance is provided to any experts, the privilege is waived and the surveillance must be produced to the plaintiff in full. It would appear that the best practice would be to conduct and serve all of your surveillance at least 90 days to trial to avoid evidence being excluded or adjournments.
Appeal Tribunal Rules of Practice Rule 9.2
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.