Consequences For Failing to Disclose Covert Surveillance

In a decision that could have repercussions for employers, the Ontario Court of Appeal has overturned a trial decision where the defendant 'ambushed' the plaintiff with surveillance evidence that it had failed to disclose in its Affidavit of Documents.
 
In Iannarelli v. Corbett, a motor vehicle accident case, the plaintiff sued after his pick-up truck was struck from behind by a cement-mixer driven by the defendant.  At trial, the parties presented their evidence regarding the weather and road conditions on the evening of the accident, and the defendant also introduced footage of video surveillance that had been shot without the plaintiff's knowledge over a period of two and one-half years following the accident.  The video was shown during the cross-examination of the plaintiff, in an effort to impeach his credibility, as it tended to refute his evidence regarding the extent of his injuries.  The surveillance evidence was not mentioned in the defendant's Affidavit of Documents (which should contain a reference to any and all arguably relevant evidence), but the trial judge admitted it despite the failure to disclose.  Ultimately, the jury found that the defendant was not liable for the plaintiff's injuries.  The plaintiff appealed.

The Ontario Court of Appeal reviewed the judge's charge to the jury and determined that his instructions on the onus to be applied were in error.  Accordingly, the trial finding was overturned and the defendants were found liable.  With respect to the video evidence, the Court reviewed the Rules of Civil Procedure governing the disclosure and production of arguably relevant materials, which is supposed "to prevent surprise and trial by ambush".  Despite the plaintiff's failure to request production of an Affidavit of Documents by the defendants, the defendant had a positive obligation to disclose and produce any document or thing that it intended to rely on at trial.  Moreover, even if the surveillance evidence was arguably privileged (as being created at a time when litigation was ongoing or contemplated), the defendants also would have had to disclose its existence and make a claim for privilege before the evidence could be presented in an effort to impeach the plaintiff's credibility.  The Court noted that the disclosure of such evidence can also assist parties in assessing their relative legal positions and may encourage settlement.  Even where an Affidavit of Documents has been served, and the surveillance is conducted afterward, the Court of Appeal found that the Rules require the party to produce a Supplementary Affidavit, which discloses the existence of the surveillance evidence.

The Court concluded that the trial judge erred in a number of ways, stating (at paras. 69 and 70):

The trial judge erred at the trial management conference. He ought to have ordered the respondents to serve an affidavit of documents disclosing the surveillance or at least to disclose such particulars as are ordinarily provided through a discovery undertaking. 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 Mr. Iannarella’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, the trial judge enabled what amounted to a trial by ambush, which is completely inappropriate under the Rules (see Ceci, at para. 10). In the circumstances, the respondents cannot be absolved of the disclosure obligations set out above. I do not excuse the lapse in good trial practice by appellants’ trial counsel (not Mr. Zuber), by failing to pursue the appellants’ entitlements at an earlier stage. However, the weight of the disclosure obligations falls on the respondents, and rule 48.04 does not provide them with an escape route.

The Court of Appeal concluded that the trial judge should not have permitted the defendants to introduce the surveillance evidence.  Although the Rules permit the admission of evidence in these circumstances, the prejudice suffered by the plaintiff in the instant case was significant and could not be remedied by an adjournment or the award of costs, and the judge had also failed to conduct a voir dire on whether the evidence should be played for the jury.

In the result, the Court of Appeal threw out the jury's provisional damages assessment, and ordered a new trial on the issue of damages.

While the decision arises in the context of a personal injury case, it is instructive for counsel and employers in wrongful dismissal and other employment-related cases.  The Court of Appeal made clear that failure to comply with the Rules which results in prejudice and unfairness to the other party will have repercussions.  In this case, despite the fact that the defendants had good evidence suggesting that the plaintiff was overstating his injuries, the unfair way in which that evidence was introduced resulted in liability which may end up being significantly more than it would have otherwise been.  Employers and their lawyers will need to ensure that they comply with their disclosure obligations, even in relation to video that is shot well after the fact, and that they are careful in how they go about impeaching the credibility of an employee who is claiming damages for wrongful dismissal.

Need advice on a wrongful dismissal claim or demand?  Contact Lance Ceaser for expert advice.