Last Minute Surveillance Prior To Trial Can Lead To Mistrial and Lots of Costs

By Meredith Harper Jan 25, 2018

The recent decision of Justice Dan Cornell in Jamieson v. Kapashesit, 2018 ONSC 279, echoes the Court of Appeal’s decision in Iannarella v. Corbett, 2015 ONCA 110, calling for full and early disclosure prior to trial. In Jamieson v. Kapashesit, the defendants had obtained surveillance a few months prior to trial. Additional surveillance was also obtained of the plaintiff about 45 days prior to trial.  The existence of the surveillance was disclosed by the defendants a month before trial. The plaintiffs requested the unedited surveillance and it was served less than two weeks prior to trial.

The matter was scheduled for a two-week civil jury trial. The parties had engaged in two days of argument and a jury had been selected. Four days prior to the commencement of trial, the defendants brought a motion to have the surveillance admitted as fact evidence at trial.

Eventually the parties agreed to adjourn the trial. The decision of Jamieson v. Kapashesit, is the court’s consideration of the plaintiffs’ request for costs thrown away.

The Court considered Iannarella v. Corbett, in stating that “days of surprise and trial by ambush are to be a thing of the past.” The Court also found that the defendants had failed to comply with Rules 30.08 and 30.09. The defendants disclosed the existence of surveillance by serving an updated unsworn affidavit of documents, only. The Court found that the defendants were required to serve a sworn affidavit of documents, pursuant to Rule 30.08. The Court also found that the defendants had failed to provide the evidence at least 90 days before the commencement of the trial, contrary to Rule 30.09.

The defendants argued that there were other motions and additional reasons why the trial needed to be adjourned. This argument was rejected, where the Court found that defendants primarily necessitated that a mistrial be declared and that an adjournment be granted in order to avoid prejudice to any party. The adjournment allowed the plaintiffs to review the surveillance, make informed decisions, and to properly prepare for trial. Costs were awarded to the plaintiffs in the amount of $11,300.00.

Meredith Harper is the author of this blog, co-chair of the Appellate Advocacy practice group, and a member of the Special Investigations practice group. If you have a question about this decision or a similar file, please contact Meredith.

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