Surveillance and Tort Claims

The general Canadian public is surveilled almost every minute they’re outside of their homes and in public spaces. We’re surveilled at banks and malls, on streets and public parks, and even as we browse the world wide web.

While there is very little restriction on those types of surveillance, being surveilled while you’re in the midst of civil litigation comes along with rules. The most important of those rules has to do with the disclosure of surveillance evidence and whether that surveillance is admissible in court.

If you’re aware that you’re being surveilled, then you need to know your rights when it comes to your trial. And if you’ve already gone to trial and had surveillance evidence used against you, you should know whether it was used according to the law.

Does Surveillance Have to be Disclosed?

The Rules of Civil Procedure govern the proceedings of civil litigation and tort claims. Under the Rules, parties involved in civil litigation are obliged to disclose the evidence that they have. That obligation is also continuous.

The Rules address surveillance in a number of ways:

  • Rule 30.03(2)(b): Because it’s identified in Schedule B of an affidavit of documents, opposing parties should have the opportunity to see the particulars of surveillance evidence at examination for discovery.
  • Rules 30.06 and 30.07(b): The combination of these rules ensures that the affidavit of documents is updated and provided to the opposing party when new surveillance evidence is obtained, along with the particulars.
  • : Besides proper disclosure, privilege must be waived in order for surveillance to be used as substantive evidence. If privilege is maintained, surveillance may only be used for impeachment purposes.

If a party has not fulfilled the above rules, then surveillance evidence can only be used with leave. But, in most cases, leave is granted by the trial judge. That’s because Rule 53.08 states that the trial judge “must grant leave unless to do so would cause prejudice that could not be overcome by an adjournment or costs.”

The Iannarella Case and Surveillance Disclosure

Surveillance is an increasingly inescapable part of the world we live in. As the ways in which we are watched rises and diversifies, existing legislation under the Rules of Civil Procedure has a hard time keeping up.

In that context, the responsibility for applying these legal principles to outdated legislation rests on the shoulders of judges. In Iannarella v. Corbett, these legal principles became clearer.

In this case, the defence had over 130 hours of surveillance footage of the plaintiff. Approximately 27 minutes of that surveillance footage was introduced during the cross-examination of the plaintiff during the trial.

Although the defence had not included that surveillance footage on the affidavit of documents prior to the commencement of the trial, the trial judge admitted the footage. The trial judge stated that, because the evidence was to be used for impeachment, Rule 30.09 permitted its use.

However, on appeal, the judgement at trial was set aside and a new trial was ordered. The trial judge at the Court of Appeal for Ontario deemed that the admittance of surveillance footage that had not been disclosed led to a “trial by ambush”. The trial judge held that Rules 30.06, 30.07, and 31.09(1)(b) – which is related to disclosure of the particulars of new surveillance evidence upon request – superseded 30.09.

The Influence of the Iannarella Case on Future Cases

The decision in Iannarella has come to influence the most recent cases regarding the disclosure of surveillance evidence during civil litigation and tort claims. It has been used by trial judges to ensure that surveillance evidence is properly disclosed in order to prevent the “trial by ambush” that took place in Iannarella v. Corbett.

Two recent cases demonstrate this influence:

  • In Hallock v. Hothy, the defense did, for the most part, disclose the surveillance evidence in accordance with the Rules of Civil Procedure. Though they made the plaintiff aware of the evidence, what they failed to do was list the surveillance in the affidavit documents. As such, the Ontario Superior Court ordered that a sworn supplementary affidavit of documents be provided. Until that was delivered, further examinations for discovery could not continue.
  • In Vickers v. Palacious, the defense wished to use surveillance evidence as substantive evidence as well as for impeachment. The plaintiff was not only aware of the surveillance evidence, but also had an opportunity to watch it. However, they were only made aware and given the opportunity to view it shortly before the trial started. The Court ruled that late disclosure excluded the evidence from submission.

These recent cases make it abundantly clear that in order to use surveillance evidence at trial, that evidence and its particulars must be disclosed in order to prevent a trial by ambush. On top of that, disclosure must take place with ample time prior to the trial. Without meeting these guidelines, it’s very possible that the evidence will be challenged by the courts.

The Admissibility Test

Not only does surveillance evidence have to meet the conditions outlined in the Rules of Civil Procedure and clarified in Iannarella, it also has to comply with the Canadian Charter of Rights and Freedoms as well as an admissibility test.

In regard to the Canadian Charter of Rights and Freedoms, Section 24 states: “Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” In other words, in order for evidence to be admissible, it must not bring the administration of justice into disrepute in the long term.

Aside from the admissibility requirement under the Charter of Rights and Freedoms, Rolley v. MacDonell defined an admissibility test for video surveillance evidence. This test states that three requirements must be met in order for surveillance video to be admissible as substantive evidence:

  1. It must be accurate in truly representing the facts.
  2. It must be fair and absent of any intention to mislead.
  3. It must be verified on oath by any person capable of such verification.

That is to say that, regardless of how convincing video surveillance may be, it’s not admissible if it’s inaccurate, unfair, or unauthenticated.

Learn More About Surveillance and Your Particular Case

Defendants increasingly turn to video surveillance evidence in the context of personal injury claims. Surveillance is employed to demonstrate that a claimant is not suffering the injury to the extent that they claimed, and this can lead to losing compensation.

But the rules around surveillance disclosure are quite clear, as is the test for admissibility. If you feel that you’ve faced a trial by ambush because of surveillance evidence, these rules are particularly important. Contact us to learn more about surveillance evidence disclosure and admissibility in the context of your particular case.

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