Syed v. Petrie, 2020 ONSC 664

Full Decision

The decision of Syed v. Petrie, 2020 ONSC 664 serves as an important refresher on the law of admissibility of surveillance at Trial for both Plaintiff and Defence counsel, particularly in relation to the late delivery of such reports.

Facts

The Plaintiff had suffered injuries in a motor vehicle accident and had commenced an action for damages.

Surveillance had been conducted on the Plaintiff since 2009 and many reports had been produced in advance of the scheduled Trial. The Defence served additional recent surveillance reports on Plaintiff’s counsel within seven days of the commencement of Trial. A Supplementary Affidavit of Documents was served by the Defendant following the delivery of these recent reports, listing them in Schedule “A”.

The Plaintiff had already prepared his witnesses based on the surveillance in his possession. He brought a Motion to exclude the recent reports from being used at Trial or for a three-month adjournment of the Trial in order to review the surveillance with the client and expert witnesses.

The surveillance reports in question showed the Plaintiff conducting various activities, including using a snow blower, shovel, and climbing a ladder. The Plaintiff argued that the surveillance depicted him participating in activities that were not previously disclosed, however, Justice Fowler Byrne determined that the surveillance had shown the Plaintiff doing similar activities in earlier surveillance reports that had been served (including mowing his lawn, moving and placing small pavers and putting soil in his garden).

Law on the Admissibility of Surveillance Reports

The Court reiterated that the test for the admissibility of surveillance reports, for whatever use and whenever produced, is relevance and materiality. Citing Ismail v. Fleming, 2018 ONSC 6311, relevant evidence is admissible unless the party objecting can show that its probative value is outweighed by the prejudicial impact of the report on the objecting party. An assessment of prejudice does not simply refer to whether the evidence is detrimental to the objecting party’s case, but instead, refers to whether the admission of that evidence will negatively impact the fairness and integrity of the proceedings.

The Court further reiterated that the Trial Judge serves a gatekeeper function and must determine the admissibility of the evidence through a voir dire in the absence of a jury, citing Nemchin v. Green, 2019 ONCA 634, Iannerella v. Corbett, 2015 ONCA 110, and Landolfi v. Fargione (2006), 2006 CanLii 9692 (ON CA). The Court must use a “discrete and granular approach” for each video excerpt that the defence wishes to use, as was done in Ismail.

As outlined in Nemchin and Iannerella, during a voir dire, the Trial Judge is to assess the video evidence by first examining the videographer to ensure that the video presents a fair and accurate depiction of the evidence to be admitted, and second by ensuring that the use of the video evidence will not impair trial fairness.

When the evidence is intended to be used for impeachment purposes, the voir dire should occur after the cross-examination of the witness, when the foundation has been laid, and before the conflicting evidence is put to them, following the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP). If, in the voir dire, it is established that the surveillance shows evidence contrary to what the witness has indicated, then the evidence will be admissible to impeach the witness.

When the evidence is intended to support a substantive trial position, then, as outlined in Nemchin, the question becomes whether the Plaintiff is unfairly taken by surprise by the admission of such evidence at Trial. When relevant surveillance is similar to evidence that was disclosed on time, late production is not sufficient to exclude relevant evidence. The Trial Judge can, however, determine a clip to be inadmissible following a voir dire if the Court determines, using the discrete and granular approach, that the evidence is new and that the Plaintiff was caught unfairly by surprise (and as such, that the probative value is outweighed by its prejudicial effect).

Findings

The Court determined that leave was not required to use the surveillance reports for impeachment purposes (as they were produced and listed in the Affidavit of Documents), but that it was required for substantive purposes (as they were previously privileged and not produced more than 90 days in advance of the Trial). A voir dire was required in order to determine whether the evidence was relevant and whether the probative value outweighed the prejudicial effect.

Rule 53.08 of the Rules of Civil Procedure outlines the circumstances in which leave should be granted. It states that leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so would cause prejudice to the opposite party or will cause undue delay in the Trial.

Justice Fowler Byrne considered the dates of surveillance, the length of video, the content of the evidence, and the timing of delivery, and held that a brief (five day) adjournment would be appropriate. This would allow the Plaintiff to have had the surveillance in his possession for 13 and 11 days respectively prior to the commencement of the Trial.

The Defendant was granted leave to use the surveillance reports for substantive purposes following a voir dire to determine if the evidence offered would impair trial fairness (which would render it inadmissible).

Justice Fowler Byrne granted a one-week adjournment of the Trial and provided leave to allow the Defendants to rely on the surveillance reports for substantive purposes. The admissibility of video evidence for any purpose, however, was subject to a voir dire and a mid-trial ruling on the admissibility.

Background Investigation Report

There was a further issue with respect to the disclosure of the intention of the Defence to serve a further Affidavit of Documents which would list, in Schedule B, a further background investigation report, which they did not intend to rely on at Trial.

The Court commented that, given that this report was privileged and that the privilege was not waived 90 days prior to Trial, the Defendant will require leave of the Trial Judge in order to use it at Trial, should it decide to rely on the report.

Jessica Golosky
Written by

Jessica joined Gluckstein Lawyers as an articling student in 2017 and is a graduate of the J.D. program from the Faculty of Law at Western University. She graduated on the Dean’s Honour List and was awarded the Law Society of Ontario Prize for academic excellence.

As a law student, Jessica worked as a Research Student for Professor Richard H. McLaren and contributed to various corporate and commercial publications. Throughout her time in law school, she was actively involved in the Western Journal of Legal Studies as both a Managing Editor and Senior Editor and volunteered as an Associate Caseworker with the Family Law Team at Western’s Community Legal Services clinic. She also participated in an exchange program during her final year of law school at Stockholm University.

Prior to law school, Jessica graduated from the University of Toronto with an Honours Bachelor of Science degree with High Distinction in the areas of Psychology, Sociology, and Urban Studies.