The importance of complying with the disclosure obligations was recently articulated by the Court of Appeal in Iannarella v. Corbett [2015] ONCA 110, which confirmed that the Plaintiff is entitled to the full particulars of surveillance if the Defendant intends to rely on that surveillance as fact evidence at trial. The Court of Appeal stressed the need for early and full disclosure so as not to ambush a party with evidence at trial.

Defendants are still entitled to claim litigation privilege over surveillance. However, the Defendant’s right to maintain a claim of litigation privilege over surveillance prior to examinations for discovery are circumscribed by the Rules of Civil Procedure:

Rule 31.04 (3) grants first right of discovery to the party that serves the first notice of examination. The caveat to this Rule is that a party to an action cannot serve a notice of examination prior to delivering an affidavit of documents, pursuant to Rules 31.04 (1) and 31.04 (2). The Court in Dingwall Ford Sales Ltd. v. Kenora (Town), [2001] O.J. No. 1198, found that a party is not entitled to serve a notice of examination for discovery until after that party has served an affidavit of documents, unless the parties agree otherwise. As well, for it to be validly served, an affidavit of documents must be sworn and include a lawyer’s certificate: Rule 30.03.

If, after delivering their statement of defence, a Defendant serves a sworn affidavit of documents and a notice of examination before the Plaintiff, the Defendant can examine the Plaintiff first, pursuant to Rule 31.04 (3) of the Rules of Civil Procedure. If the Defendant obtains surveillance prior to examinations for discovery, the Defendant must list the privileged surveillance in Schedule “B”, but the Defendant need not disclose the dates, times and locations of the surveillance, a description of the nature and duration of the activities depicted, or the name(s) and address(es) of the videographer(s), until particulars are sought during the examination for discovery of the Defendant.

In Hallock v. Hothi, 2015 ONSC 1851, the Court interpreted Rule 31.04 in the context of Iannarella v. Corbett. The Plaintiffs brought a motion for complete particulars of the surveillance prior to the examinations for discovery of the Plaintiffs.  The Court found that the Defendants never waived their right to complete the discovery of the Plaintiffs before disclosing particulars of the video surveillance. Nor did counsel for the Plaintiffs make his clients’ attendance conditional upon advance disclosure of the particulars of the surveillance evidence. The Court further commented, at paragraph 9:

“In this case, unlike Iannarella, the defendants are not seeking to ambush the plaintiff at trial with surveillance evidence neither disclosed nor particularized. They are willing to provide the particulars immediately after their further examination for discovery of the plaintiff in the next few weeks. The plaintiff is entitled to know the particulars of the surveillance evidence before trial but I am not persuaded that she is entitled to know those particulars before her examination for discovery is completed.”

If you have any questions about this blog or a file, please contact the author, Meredith Harper.