Late Service of Surveillance Video Leads to Mistrial - Court Expects Full and Rigorous Disclosure and Production of Evidence Under Rules - Jamieson v. Kapashesit, 2018 ONSC 279

March 14, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Jamieson v. Kapashesit, 2018 ONSC 279 (CanLII)

Date of Decision: January 16, 2018
Heard Before:  The Honourable Mr. Justice R. Dan Cornell

Introduction

On September 21, 2017, four days prior to the commencement of the trial, the Abitong et al. defendants brought a motion seeking permission to use recently obtained surveillance evidence at the trial.

Issue

Following argument, a decision was made to adjourn the trial. The plaintiffs now ask that I award costs against the Abitong et al. defendants on the basis that the adjournment of the trial was necessitated as a result of the actions of the Abitong et al. defendants.

Background

Surveillance of the injured plaintiff was conducted in May and June of 2017. The existence of this surveillance evidence was disclosed on August 21, 2017. The edited version of this surveillance was produced on August 30, 2017. On the same day, the Abitong et al. defendants disclosed that additional surveillance of the injured plaintiff was conducted between August 10 and 14, 2017. An edited version of this subsequent surveillance was also produced on August 30, 2017.  An immediate request for production of the unedited version of the surveillance was made by the plaintiffs. In response, an unsworn affidavit of documents from the defendant, Kyle Abitong, was served on counsel for the plaintiffs. The surveillance was referred to for the first time in the Schedule A portion of the unsworn affidavit. The unedited version of the surveillance was not provided until September 15, 2017, a mere ten days prior to the commencement of the trial. The unedited version of the surveillance is 7.87 hours long.

In view of the fact that the Abitong et al. defendants failed to comply with rules 30.08 and 30.09 by providing such surveillance at least 90 days before the commencement of the trial, the Abitong et al. defendants brought a motion four days prior to the commencement of the trial seeking leave of the trial judge to make use of such surveillance at trial.

Analysis

The plaintiffs assert that given the very late disclosure and production of the surveillance evidence, it was not possible for the plaintiffs to review the unedited version of the surveillance to make informed decisions about the content of the surveillance and to prepare for trial.

The Abitong et al. defendants respond by saying that the real reason that a mistrial was declared after two days of argument was that the trial would not likely be completed within two weeks.

The jurisprudence has made it abundantly clear that the days of surprise and trial by ambush are to be a thing of the past. Various amendments to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 have been made to require full disclosure by all parties in a timely fashion. Rule 30.02 outlines the documentary disclosure and production obligations that now exist. Rule 30.03 contains a positive obligation on each party to swear and serve an affidavit of documents. Unlike the former practice, no request for an affidavit of documents is now required.

Mr. Justice Cornell reviewed the law noting that in Iannarella v. Corbett, 2015 ONCA 110 (CanLII) Justice Howden noted, “Given the interests of fairness and the objectives of efficiency and settlement, the court expects the parties to comply fully and rigorously with the disclosure and production obligations under the Rules.”

In my view, a party is obliged by a combination of rules 30.06 and 30.07(b) to provide an updated affidavit of documents listing the new surveillance. Further, the party must disclose the particulars of this subsequent surveillance upon request under rule 31.09(1)(b). These disclosure obligations are fundamental and extend to surveillance obtained after the original affidavit of documents is served.  In short, rule 30.07 offers the respondents no escape route from the obligation to disclose the existence of surveillance.

In this case, the Abitong et al. defendants only provided an unsworn affidavit of documents shortly before the trial. The practice of sending an unsworn affidavit of documents is unacceptable as it fails to comply with the Rules. If an unsworn affidavit of documents is provided, a sworn copy of the affidavit of documents must be provided shortly thereafter as a matter of practice.  Subsequent surveillance has been held to constitute a change in circumstances such that leave should be granted to cross-examine the defendants on the affidavit of documents where only an unsworn affidavit of documents had been provided.

By conducting themselves as they did, the Abitong et al. defendants ensured that “[t]he entirety of this important pre-trial process was effectively foregone.” By delivering surveillance evidence on the eve of trial, the defendants ensured that the plaintiffs would not have time to avail themselves of a further right to cross-examination or discovery. If the plaintiffs chose to waive such right, the late delivery of the surveillance would have placed the plaintiffs at a strategic disadvantage for the conduct of and preparation for the trial itself.

Two options were available in response to the Abitong et al. defendants’ surveillance motion returnable at the outset of trial. The request to use such surveillance evidence could have been denied. This may well have resulted in prejudice to such defendants. The second option was to grant an adjournment to address any prejudice suffered by the plaintiffs. Ordinarily, prejudice to a party is addressed by granting an adjournment and making an appropriate award of costs.

The decision was made to declare a mistrial and grant an adjournment such that neither the plaintiffs nor the defendants would suffer prejudice. The adjournment permits the plaintiffs to review the surveillance, make informed decisions and to properly prepare for trial. The adjournment permits the Abitong et al. defendants to make use of the surveillance evidence, if so advised.

It is true that all counsel eventually joined in the request for an adjournment. It is also true that time was spent during the two days in question selecting a jury and dealing with two other motions. Despite these considerations, the fact remains that the actions of the Abitong et al. defendants primarily necessitated that a mistrial be declared and that an adjournment be granted in order to avoid prejudice to any party. In these circumstances, it is appropriate that the Abitong et al. defendants pay the costs associated with such adjournment.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.