Evidence – Real evidence - Videos
Plaintiff was involved in motor vehicle accident in 2008. Plaintiff brought action for damages. Liability and damages were both in dispute. Defendants had surveillance conducted on plaintiff since year after accident and many reports were prepared accordingly. Just before trial defendant’s counsel served surveillance reports on plaintiff’s counsel, upon which they intended to rely at trial. Plaintiff brought motion to exclude two surveillance reports. Motion dismissed. Leave was not required to utilize surveillance evidence for purposes of impeachment. Admission of video evidence for any purpose would be subject to mid-trial ruling on its admissibility. Most recent surveillance reports showed plaintiff participating in activities that were repetitive of earlier activities of plaintiff, such as driving, or working in restaurant. Only new activities were plaintiff's use of snowblower and shovel, as well as him climbing ladder but earlier surveillance showed plaintiff mowing his lawn, moving and placing small pavers and putting soil in his garden. Discrete and granular approach was to be used to determine whether particular clip of video surveillance was new, and that plaintiff's counsel were caught unfairly by surprise. Reports were both produced and listed in affidavit of documents so leave was not required under Rule 30.08(1) of Ontario Rules of Civil Procedure. Reports were previously privileged and outside 90-day window prescribed by Rule 30.09, so leave was required for defendant to use evidence for substantive purposes . Whether surveillance was used for substantive or impeachment purposes, it still had to be relevant, and its probative value must not be outweighed by its prejudicial effect which was to be determined by voir dire. Plaintiff and his counsel would not be unfairly taken by surprise by admission of evidence at trial. New surveillance being relied on was very recent, was five hours long and its content was not substantially different to what had been observed before so leave was granted.
Syed v. Petrie (2020), 2020 CarswellOnt 1250, 2020 ONSC 664, Fowler Byrne J. (Ont. S.C.J.).
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