Nemchin v. Green 2019 ONCA 634

Full Decision

This recent appeal decision provides further guidance on the use of surveillance and Facebook posts since the seminal case of Iannarella v. Corbett, [2015] ONCA 110, which dealt primarily with disclosure obligations associated with surveillance on which a party later intended to rely. Nemchin affirms the test for the admissibility of surveillance at trial outlined in Iannarella; distinguishes between surveillance use for impeachment vs. substantive evidence of functionality; upholds the rule in Browne v. Dunn, 1893 CanLII 65 (FOREP) when it comes to the use of surveillance; and provides further guidance on the timing of motions to exclude surveillance.

BACKGROUND

Ms Green was driving a motor vehicle when she turned into oncoming traffic and hit Ms. Nemchin. At trial, the jury assessed liability for negligence at 90% against the defendant, and 10% against the plaintiff for contributory negligence. While she had some residual physical complaints, the main issue at trial was whether her PTSD was caused by the collision and was significant, or whether it was the result of an earlier sexual assault. At trial, Ms. Green’s counsel sought to produce video surveillance evidence and copies of some of Ms. Nemchin’s Facebook posts, showing her taking part in normal life activities so as to prove the limited impact PTSD actually had on her life. The trial judge found both sets of evidence inadmissible. Ms. Green appealed, arguing that the exclusion of this evidence, which she intended to use for substantive purposes, was wrong in law, and led to a miscarriage of justice requiring a new trial. The appeal was dismissed.

ISSUES

1. Did the trial judge err in not admitting the video surveillance evidence? Yes


The trial judge gave three substantive reasons for refusing to admit the video evidence. After analyzing the applicable law on the issue, the Court of Appeal determined that none of the trial judge’s substantive reasons hold up under scrutiny.

  • The trial judge found the surveillance to be of minimal probative value, and therefore inadmissible, citing para. 99 of Iannarella.

First, the Court of Appeal confirmed that the test for admissibility of surveillance evidence is the same, whether it is to be used for impeachment purposes or for substantive purposes, and the approach to the assessment of the evidence in the voir dire must be the same. In order to use the video evidence for substantive purposes, it must be disclosed in a timely manner, in accordance with the Rules of Civil Procedure.

The test for admissibility of video evidence was laid out in Ianarella, and involves a voir dire hearing where the videographer can be examined to assess whether the video depicts the evidence fairly and accurately. The trial judge must also assess whether the video evidence would impact trial fairness. The trial judge’s task in a voir dire is to look at each piece of video evidence to determine if each piece is, in and of itself, admissible.

Second, the Court of Appeal confirmed that when deciding the question of fairness, the surveillance must be viewed on a continuum according to the rule in Browne v. Dunn, which requires counsel to give a witness the opportunity to address any possible contradiction on cross-examination for matters of substance. At one end of the continuum, where the video evidence shows a major contradiction, trial fairness suggests that the evidence should be put directly to the witness in cross examination. At the other end of the continuum, where there is only a minor contradiction, the surveillance could be led as substantive evidence without first being put to the witness for impeachment purposes.

Third, the Court of Appeal provides further guidance on the timing of motions to exclude surveillance, holding that the voir dire in this case took place prematurely. The voir dire took place at a break in Ms. Nemchin’s examination in chief when ordinarily, it would take place after the witness has been set up in cross-examination. The Court of Appeal states that trial judges “need not be governed entirely by the actions of counsel in bringing motions to exclude surveillance evidence”, and that it is “open to the trial judge to refuse the plaintiff’s motion and invite it to be renewed at a more appropriate time”.

Based on these principles, the Court of Appeal determined that the trial judge erred in accepting trial counsel’s approach of dealing with the video evidence as a whole instead of taking a discrete granular approach to each video excerpt the defence wanted to put into evidence. The trial judge further erred in concluding that the surveillance could only be shown to the jury if it contradicted the plaintiff, because the video could have still been led as substantive evidence.

  • The trial judge accepted the plaintiff’s argument that, in the context of Ms. Nemchin’s PTSD, the jury could not be expected to interpret the surveillance evidence meaningfully without expert opinion evidence.

The Court of Appeal points out that the respondent led similar evidence at trial without expert testimony. This contradiction could not be explained and amounted to an error.

  • The trial judge found that the last round of video surveillance was not admissible because it was served on the plaintiff too late, citing para. 55 of Iannarella.

It was within the trial judge’s discretion to admit the late-disclosed surveillance video under Rule 53.08. However, since each piece of evidence must be assessed individually, this should not have impacted the admissibility of the evidence that was disclosed on time. Since the surveillance disclosed late was substantially the same as the evidence already disclosed, there was no surprise or prejudice to the respondent. The trial judge thus erred in not assessing whether the late surveillance evidence should be admitted considering fairness and surprise.

The final issue with the surveillance as a whole was the manner in which it was edited. The appellant did not seek to admit the raw footage into court, but an edited version. The raw footage was no longer available, and the videographer did not know exactly how it was edited. As a result, the trial judge found it was not is not accurate in truly representing the facts. The Court of Appeal found this to be an error, as lengthy surveillance is rarely played for a jury. Doing so would usually be a waste of the court and jury’s time. The key is to ensure the excerpts played are fair and accurate, and since the videographer was the one recording the events, they were in a sufficient position to authenticate it.

2. Did the trial judge err in not admitting the Facebook evidence? No

The respondent’s Facebook page had been deleted, so counsel entered into an access agreement under which the plaintiff’s Facebook page was reactivated to allow defence counsel to retrieve information from it, but on the condition that the information would be copied and provided to plaintiff’s counsel “posthaste”. The appellant failed to produce it in a timely manner, and sought to adduce six volumes of the Facebook evidence at trial. The trial judge ruled that the work and time to allow the respondent time to review the evidence and prepare a response in the middle of cross-examination would be substantial, and thus amount to prejudice.

3. Were the errors sufficiently grave to warrant a trial? No

The Court of Appeal held that a new trial was not warranted, as the appellant did not “show that a substantial wrong or miscarriage of justice has occurred”. The jury’s award was based largely on the respondent’s inability to work in her full capacity, and thus her income potential was reduced. While the jury considered the impact of her PTSD on her enjoyment of everyday life, this was not the main basis of their award. The live issue at trial was causation. The surveillance did not go to this issue, and it didn’t do much to contradict or add to evidence already admitted. As a result, the Court of Appeal held that even if the excluded surveillance evidence were to have been admitted, it was not so significant to have affected the jury’s verdict on damages.

Written by

Irina Rosca received her law degree from the University of Windsor – Faculty of Law. After articling at a full service, national firm on Bay Street, she joined Greg Monforton and Partners as an Associate in 2018, where she practices exclusively in the field of personal injury. Irina is passionate and committed to protecting the rights of her clients and fighting to secure the compensation they deserve. In her spare time, Irina enjoys giving back and volunteering within her community.