By MARK COOMBS, Student at Law
The recent Court of Appeal decision of Iannarella v. Corbett, 2015 ONCA 110 has got lawyers talking. How can surveillance properly be used in an injury case?
In Iannarella, the Court of Appeal overturned a trial decision based in part on the improper use of surveillance evidence. The defence had been able to introduce surveillance evidence for the purposes of impeaching the plaintiff’s credibility even though they did not provide particulars of that surveillance evidence to the plaintiff within an affidavit of documents. The defence had also used the surveillance evidence substantively, suggesting it represented the plaintiff’s health and capabilities. The Court of Appeal found that these errors, in conjunction with some other faults of the trial judge, critically impaired the fairness of the trial.
Some questions arise out of the Iannarella decision. How much surveillance evidence does the defence have to give to the other side? The entire file? What are the requirements to use surveillance evidence substantively?
The Rules and Disclosure
Under Rule 30.01 “documents” that are required to be disclosed include investigative materials such as videotapes, photographs, and sound recordings.
The Court commented on this in Iannarella:
“Documentary disclosure and production obligations are laid out in rule 30.02, and each party’s obligation to swear and serve an affidavit of documents is imposed by rule 30.03. For the purpose of the Rules, a video disc containing surveillance is a document (see rule 30.01(1)(a)).”
Rule 30.02 requires defendants to disclose every relevant document unless privilege is claimed over it. As noted in Iannarella, defendants who fail to comply with disclosure obligations will not be able to rely on the document at trial except with leave of the trial judge as per Rule 30.08. Note that where surveillance is being used only for the purposes of impeachment evidence, it does not have to be produced. However, it has to be disclosed in schedule B of the party’s affidavit of documents.
Where Surveillance Evidence is Used to Impeach Credibility
- Counsel must list the surveillance evidence in schedule B of his client’s affidavit of documents as a privileged document.
- If requested at the examination for discovery, counsel must provide the date, time and location of the surveillance, the nature and duration of the activities depicted, and the names and addresses of the videographers.
- Before surveillance can be used to impeach a plaintiff’s credibility, lay an adequate factual foundation.
- Counsel should ask for a voir dire if required to prove the admissibility of the video. Until it has been established that the videos are admissible, they will not be shown to the trier of fact.
According to the Court of Appeal in Iannarella, the plaintiff has the opportunity to seek full particulars of the surveillance from the defence at examination for discovery. The “particulars” of surveillance that must be disclosed on request include the date, time and location of the surveillance, as well as the nature and duration of the activities depicted and the names and addresses of the videographers.
There are some things defendants can refuse to produce. In Bell v. Brown, 2012 ONSC 839, the Court mentioned that the defendant could refuse to undertake to produce “the particulars of any future surveillance, including the dates and times of the surveillance and a description of any videos or photographs.” According to the Court in Marchese v. Knowles,  O.J. No 1159 defendants may also refuse to give resumes of their investigators or any information leading to the volume of work that investigators perform for their clients on other matters.
In Iannarella the Court noted that if surveillance occurs before the affidavit of documents is served, the report must be listed in the affidavit and requests for particulars must be answered at an examination for discovery through Rules 30.06 and 30.07(b). A condition precedent to the use of surveillance material at trial is disclosure.
Before surveillance can be used to impeach a plaintiff’s credibility, the defence must lay an adequate factual foundation. The Court said in Iannarella:
“The witness ought to be closely cross-examined on limitations, disabilities and restrictions all with a view to establishing contradictions between the testimony of the witness in the box and the material which the examiner knows is disclosed within the surveillance material. Preferably this “cross-examination on minutae” will be conducted in advance of the voir dire thereby enabling the examiner, in the course of the voir dire to point out inconsistencies which ought to be put to the witness.”
Defendants must be sure that the impeachment evidence contradicts the oral evidence of the plaintiff, if it doesn’t then the Court will refuse to admit it as it did in Lis v Lombard  O.J. No. 2578, (ONSC).
Use of Surveillance Evidence at Trial
In order to introduce surveillance as evidence at trial:
- Privilege over the surveillance must be waived in writing at least 90 days before the commencement of trial.
- Counsel must give the opposite party notice of intention to use the surveillance evidence at trial at least 90 days before the commencement of trial.
- Counsel must provide a full copy of the video and the surveillance report to the plaintiff at least 90 days before the commencement of trial. Failure to comply will limit the use of the material to impeachment purposes only, except with leave of the trial judge.
Rule 30.09 requires the defendant abandon its privilege claim in writing, and provide a copy of the video, report or document to the plaintiff at least ninety days before the commencement of trial. Failure to comply with Rule 30.09 will limit the use of the material to impeachment purposes only, except with leave of the trial judge. In Landolfi v. Fargione, (2006) 79 OR (3d) 767 (ONCA). Justice Cronk held, that a party can use surveillance as substantive evidence only if privilege has been waived and, the surveillance has been properly disclosed. But use of the surveillance is limited to impeachment purposes if the claim of privilege is maintained.
In Cromb v. Bouwmeester, 2014 ONSC 5318 the Court held that if a party intends to rely on surveillance as part of its case, the party must produce the surveillance, including recordings. Similarly, in Arsenault-Armstrong v. Burke, 2013 ONSC 4353 the Court noted:
“If the defendant intends to rely on the surveillance as substantive evidence at trial it must produce the surveillance report including a video tape pursuant to Rule 30.09.”
While case law mentions producing the surveillance report and the recordings, there is no mention of producing the investigator’s entire file. However, the Court affirmed in Cromb that if it is unclear on the face of the materials provided, defence counsel must provide particulars of the precise dates when the surveillance occurred, the time each session of surveillance began and ended, the location where surveillance was carried out, the names and contact information of the individuals who carried out the surveillance, the names of websites which the investigators reviewed in relation to their surveillance activities, the names of any organizations and individuals who the surveillance investigators communicated with in relation to the surveillance activities and the dates on which those communications occurred.
Once the requirements above have been met, the surveillance evidence may be led by either party at trial.
Strategic Uses of Surveillance Evidence
It can be difficult to use the evidence for impeachment purposes because of the challenges involved in instructing a jury to use videotape evidence to impeach but not to consider as substantive evidence. This was a problem that led to the reversal in Iannarella. Defence counsel attempted to rely on the surveillance evidence as evidence of the plaintiff’s actual capabilities, but had not laid the proper foundation.