Vickers v. Palacious, 2015 CarswellOnt 20890
Released October 9, 2015 | Ruling [OTLA Document Bank]
The defendant conducted video surveillance of the plaintiff, Jacqueline Vickers, over three days in November 2013. The defendant did not disclose the existence of the video to the plaintiff and did not serve a supplementary Affidavit of Documents. The parties attended a pretrial conference in March 2014 and, again, the existence of the surveillance was not disclosed. Further surveillance was conducted in June, July, and August 2015. The defendant disclose the existence of the surveillance evidence and provided a copy of the video on September 21, 2015, roughly two weeks before the start of trial in October 2015.
Toward the end of the cross-examination of Ms. Vickers, defence counsel sought to introduce surveillance evidence. The plaintiff objected. Mr. Justice James held that the surveillance evidence was not admissible, either as substantive evidence or for the purpose of impeachment.
In coming to this conclusion, Justice James noted that the Court of Appeal’s decision in Landolfi v. Fargione, where the Court was critical of the trial judge’s decision to exclude surveillance evidence, was premised on the defendant’s timely pre-trial disclosure of the particulars of surveillance. Justice James also relied on the Court of Appeal’s more recent decision in Iannarella v. Corbett. In Iannarella, the Court emphasized the role of the trial judge as a gatekeeper. In this role, even where video is tendered for impeachment purposes only, the Court must be satisfied that the video is fair and accurate. This requires making videographers available on voir dire. Justice James noted that this had not been done in the case before him and he could not be satisfied that the entire, unedited, video had been made available to the plaintiff.
Justice James offered several additional reasons for the exclusion of the surveillance evidence. First, he was not satisfied that the video showed the plaintiff engaged in activity that was “fundamentally at odds” with Ms. Vickers’ testimony. Second, the defence had not offered an explanation for its failure to comply with its disclosure obligations.
Justice James summarized his view of defendants’ disclosure obligations following Iannarella:
Read the ruling on the OTLA Document BankThe lesson in Iannarella is that disclosure rules are in place for good reason and parties who fail to comply do so at their peril.