The recent decision of Nydam v. Cunningham [2025] O.J. No. 4732, pertains to a pre-trial motion where Justice K.C. Tranquilli ruled on the admissibility of demonstrative evidence in a jury trial.
Plaintiff’s counsel sought leave of the court for the use of 11 illustrations that purported to address the liability and damages issues in the case. It was counsel’s intention to use these illustrations as aids during their opening at trial, and during witness testimony. Justice Tranquilli declined to allow the illustrations in their current form for various reasons, which are discussed below.
By way of background, the plaintiff in this personal injury action was injured in a boating accident, allegedly sustaining head and neck injuries. The watercraft was operated by the defendants. The proposed illustrations were prepared by Artery Studios and included depictions of how the plaintiff was allegedly thrown across the boat (“injury dynamics”), anatomical renderings of her head and neck injuries (“injury details”) and projections of possible future spinal degeneration and treatment options (“future degeneration and treatment options”). Plaintiff counsel argued that these images should not be controversial as they were based on evidence from the parties’ examination for discovery, medical imaging, or arising from the opinions of their own expert, Dr. Keith Sequeira.
Justice Tranquilli accepted and acknowledged the “guiding principles” articulated in Robichaud et al v. Constantinidis et al., 2019 ONSC 5396 at para. 5 and Woods v. Jackiewicz, 2019 ONSC 2069 at paras. 12-13. He noted that he was mindful that such illustrative aids could be used, even encouraged, to assist members of the jury in understanding the liability and damages issues, however, he rejected the use of the illustrations in their current form. Notably, he stated that the illustrations were based on controversial evidence, from the circumstances of the incident to the medical findings and opinions. For example, it had not been factually established that the plaintiff’s head struck the sink pedestal before she landed on the floor. There was no evidence that established this as a fact, contrary to what was shown on one of the illustrations. An engineer should have been retained to address how the boat maneuver caused the plaintiff’s movement and injury. Further, the illustrations advocated for the plaintiff’s theory of the case, which the defendants took issue with. The judge noted that editorial elements, like directional arrows and colourized depictions of swelling or bleeding were potentially prejudicial, and not necessarily accurate, and that certain images exaggerated medical findings. Overall, the illustrations’ probative value was low, and the risk of prejudice was high, and the court could not properly authenticate them without making factual findings.
Justice Tranquilli concluded that the illustrations were unnecessary and, in fact, redundant, since there were already photographs and medical images that would address the pertinent issues in the case without the question of authenticity. Justice Tranquilli did note that some of the images were capable of remedy if the narrative or editorial descriptions were disregarded while others were not for lacking “conclusive evidence”.
This decision serves as a reminder to all counsel that while demonstrative evidence can aid juries in grasping complex medical and liability evidence, accuracy, truth, and neutrality remain of the utmost importance. Visual evidence must illustrate, and not argue, and once it crosses that line, its probative value is effectively lost. Counsel must approach this type of evidence with restraint and ensure that it is firmly grounded in evidence and not used to persuade or dramatize. In the end, a picture may be worth a thousand words- but only if every one of them is true.
Kasia Kosacka is a lawyer at ZTGH and author of this blog. If you have a question about the use of visual aids in a jury trial, please contact Kasia at 416-777-5249.
