"Surprising" trial decision highlights importance of disclosure

A recent Ontario Court of Appeal (OCA) decision highlights the importance of courts complying with disclosure obligations under the Rules of Civil Procedure, says Ottawa personal injury lawyer Najma Rashid.

Weighing in on Iannarella v. Corbett, 2015 ONCA 110 (CanLII), Rashid says she welcomes the OCA’s finding that the trial judge erred in allowing video surveillance evidence to be admitted without disclosure in advance of trial.

Iannarella deals with a motor vehicle accident that occurred in 2008, where the plaintiff alleged the defendant had negligently rear-ended him, seriously damaging his left shoulder.

In advance of trial, says the ruling, the defendant hired investigators who shot more than 100 hours of video surveillance footage. At trial, the defendant sought to admit parts of the video evidence to discredit the plaintiff’s testimony on the extent of his injuries, and, while the existence of the video was never disclosed to the plaintiff, the judge allowed it to be used.

The trial judge “ought to have ordered the respondents (defendants) to serve an affidavit of documents disclosing the surveillance or at least to disclose such particulars as are ordinarily provided through a discovery undertaking,” Justice Peter Lauwers writes for the OCA.

“He should have offered the appellants an adjournment of the trial, and dealt with the issue of costs thrown away, since the appellants were not without fault. This would have permitted the appellants to access at least some of the advantages of disclosure. Even a relatively short adjournment to permit counsel to plan (the plaintiff’s) examination-in-chief in light of the surveillance particulars would have been appropriate, in the event that the appellants did not want a lengthy adjournment. None of this was offered.”

Instead, writes Lauwers, “the trial judge enabled what amounted to a trial by ambush, which is completely inappropriate under the Rules (of Civil Procedure).”

Generally, if a party fails to give the appropriate disclosure in advance of trial, the evidence in question won’t be admissible.

“This seems so archaic. I certainly thought it was settled law that there’s no such thing as trial by ambush,” says Rashid, a partner with Howard Yegendorf & Associates LLP.

“For some reason, this trial court took 10 steps back with a decision that did not comply with the Rules of Civil Procedure and the rules of disclosure.”

At trial, says the OCA ruling, plaintiffs sought an order requiring the defendants to produce an affidavit of documents and to disclose the particulars of the surveillance, but the judge rejected the argument.

“The trial court’s decision on the disclosure issue was very surprising,” Rashid says of the judge’s refusal to grant the motion. “It’s settled law that if you’re going to rely on surveillance you have to disclose it. The defence in this case did not comply with any of that, and for whatever reason, the trial judge let them get away with it. How do you answer the defence’s case if you don’t know what it’s going to be?”

Rashid, who was not involved in the case, says in general, the use of surveillance video to impact on credibility is common in personal injury files.

“The defence uses it to bolster their case where loss of income and quality of life is an issue,” she says. “It’s a very typical objective behind a defence’s use of surveillance in a courtroom.”

A decision like Iannarella, says Rashid, provides valuable clarification on the importance of disclosure.

“I think it just really reiterates the importance of complying with the disclosure obligations under the Rules of Civil Procedure,” she says.