Court awards $11,300 in costs where late served surveillance leads to a mistrial and an adjournment.
Heard: Written Submissions | Full Decision [PDF]
This matter was scheduled for a two-week jury trial during the sittings commencing September 25, 2017. Four days prior to the commencement of trial, after a jury had been selected, the Abitong et al. defendants brought a motion seeking permission to use recently obtained surveillance evidence at the trial.
The surveillance sought to be introduced was conducted in May and June of 2017. The edited version of this surveillance was produced on August 30, 2017. On the same day, the Abitong et al. defendants disclosed that additional surveillance of the plaintiffs was conducted between August 10 and 14, 2017 and the edited version of this subsequent surveillance was also produced on August 30, 2017. The unedited version of the surveillance was requested by the plaintiffs and provided a mere ten days prior to the commencement of the trial.
The decision was made by all parties that an adjournment was necessary to permit the plaintiffs to review the surveillance and to properly prepare for trial. In determining the plaintiffs’ entitlement to costs thrown away, Justice Cornell considered Iannarella v. Corbett and noted that “the jurisprudence has made it abundantly clear that the days of surprise and trial by ambush are to be a thing of the past.” Justice Cornell found the Abitong et al. defendants failed to comply with rules 30.08 and 30.09 of the Rules of Civil Procedure. The Abitong et al. defendants argued that the real reason the adjournment was necessary was because the trial would not likely be completed within the scheduled two weeks. The Court rejected this argument and held the Abitong et al. defendants primarily necessitated that a mistrial be declared and that an adjournment be granted in order to avoid prejudice to any party. In these circumstances, it was appropriate that the Abitong et al. defendants pay the costs associated with such adjournment. Costs were fixed at $10,000 together with HST for a total of $11,300.
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