In Nemchin v. Green, 2019 ONCA 634, the Appellants appealed a jury decision, wherein the Trial Judge did now allow the Defendant to show the jury surveillance of the Plaintiff. The purpose of the surveillance was to establish that the Plaintiff’s PTSD did not affect the Plaintiff’s activities of daily living as much as the Plaintiff wanted the jury to believe. The Defendant appealed these exclusions arguing that they were wrong in law and led to a miscarriage of justice.
Writing for a unanimous panel which included Justices van Rensburg and Rouleau, Justice Lauwers considered the distinction between surveillance used to impeach a witness’ credibility and surveillance used as substantive evidence of a witness’ functionality. The court confirmed that surveillance may not be used as substantive evidence if the defence did not disclose it to the Plaintiff on the ground of privilege, with the goal to use it in cross-examination for impeachment purposes. Where the surveillance is disclosed in accordance with the Rules of Civil Procedure, the surveillance can be used for both purposes. The Court also maintained that where the goal is to impeach a witness, the evidence should be put directly to the witness in cross-examination.
At trial, the Judge excluded the surveillance of the Plaintiff because 1. To be admissible, the probative value of the surveillance footage must be such that it is capable of contradicting, challenging or impugning the witness’ testimony; 2. A jury cannot meaningfully interpret the surveillance without expert opinion; and 3. The surveillance was not admissible because it was served on the Plaintiff late.
The Court of Appeal, relying heavily on its earlier ruling in Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, found that the Trial Judge erred by stating that the surveillance could only be shown to the jury if it contradicted the Plaintiff. The Court of Appeal stated that the surveillance could have been shown to the jury because it was available to provide context to and qualify the Plaintiff’s testimony as to her true functionality. With respect to the Trial Judge’s second reason for excluding the surveillance, the Court stated that the Trial Judge’s analysis failed to consider why the video was in a different category (i.e. for impeachment or substantive evidence) or in considering whether the experts could have been consulted further to determine whether the video might have elicited further opinions and led to the need for testimony. While acknowledging that the Trial Judge had discretion not to admit the late served surveillance video, the Court of Appeal held that the Trial Judge failed to assess whether the admission of the late-served surveillance would be prejudicial, considering fairness and surprise. The Court emphasized that late production is usually not good reason for excluding relevant evidence where it is similar to evidence that was disclosed on time.
The Trial Judge refused to admit the surveillance evidence because some of the video was time stamped and some of it was not; because the investigator did not know precisely how the surveillance was edited and because some descriptions in the surveillance report contained the investigator’s subjective comments. The Court of Appeal held that there is no requirement that a video be continuous or complete before it can be said to accurately depict a witness’ activities. The Court emphasized that the key is to ensure that the excerpts of footage are fair and accurate. The Court also held that a video recording is admissible as soon as it is established that it depicts the scene and has not been altered or changed. The Court stated that any factors such as the integrity of the recording or the identity of a speaker, are matters for the trier of fact and go to weight only, not admissibility. With respect to the subjective comments of the investigator in the surveillance report, the Court held that the critical evidence was the video itself and not the surveillance report, which could have been excluded or redacted if they contained “questionable” text.
Ultimately, the Court of Appeal held that the Trial judge erred in excluding them. However, the Court went on to find that the error was not so egregious as to justify ordering a new trial on the basis that had the surveillance been show, the jury’s damages award would not have been affected.
This case is a reminder to counsel to think carefully about their goal for using surveillance at trial, as that will guide how they disclose and introduce the surveillance at trial.
Suzanne Clarke is author of this blog and partner at the firm. If you have a question about this decision or the use of surveillance at trial on a similar file, please contact Suzanne at 416-777-5226
