Trial judge’s reasons for excluding surveillance did not hold up; video posed no real contradictions

Remedies - Damages - Causation

Defendant made left hand turn at intersection into oncoming traffic, colliding with plaintiff. Jury assessed liability for negligence as 90 percent against defendant and 10 percent against plaintiff for contributory negligence. Damages were fixed in amount of$700,000 payable by defendant to plaintiff. Plaintiff suffered from PTSD. Trial judge made two rulings: defence was not permitted to show surveillance to jury in order to establish that plaintiff`s activities of daily living were not as much impacted by PTSD as she led it to believe; and defence was not permitted to show 20 of plaintiff`s social media posts. Defendant appealed. Appeal dismissed. Defence did not intend to use any of excerpts from video evidence in plaintiffs cross-examination to impeach her credibility or her testimony. None of three substantive reasons given by trial judge for excluding surveillance held up under scrutiny; they were all matters of weight for trier of face to consider. Critical live issue at trial was causation, whether collision caused PTSD from which plaintiff was suffering or whether PTSD was caused by sexual assaults plaintiff experienced when young. Surveillance video posed no real contradictions and little grist for cross-examination. Even if excluded surveillance evidence were to have been admitted it was not significant that evidence would have affected jury`s verdict on damages.

Nemchin v. Green (2019), 2019 CarswellOnt 12377, 2019 ONCA 634, Paul Rouleau J.A., P. Lauwers J.A., and K. van Rensburg J.A. (Ont. C.A.).

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