Surveillance evidence is commonly used in personal injury cases to either disprove a plaintiff’s case by showing his or her functional abilities, or call into question the plaintiff’s credibility at trial. However, defence counsel and insurance companies are somewhat limited in using surveillance footage as their tool, as established by the Ontario Court of Appeal in Iannarella v Corbett.[1]
First, counsel who plan on using surveillance as evidence must properly disclose it to the plaintiff, pursuant to Rule 30.09 of the Ontario Rules of Civil Procedure.[2] If counsel wishes to use surveillance footage as substantive evidence, they must produce it at least 90 days before the commencement of trial.[3]
When the purpose of using surveillance video is to impeach the plaintiff’s trustworthiness in front of the judge or jury, counsel does not need to produce the footage but must disclose it in their Affidavit of Documents that is provided to plaintiff’s counsel in advance of examinations of discovery.[4] However, disclosure of particulars is mandatory for surveillance obtained after discoveries and before trial, regardless of whether counsel wishes to use it as substantive or impeachment evidence.[5]
Generally, evidence not produced to the plaintiff in advance, according to the Rules, is inadmissible, unless this evidence meets the following three criteria:
- Accuracy in truly representing the facts;
- Fairness and the absence of any intention to mislead; and
- Verification on oath by a person capable of doing so. [6]
Furthermore, to be admitted, the probative value of the unproduced evidence must outweigh the prejudicial effect it may have on the plaintiff. [7]
If you have been injured and require legal advice, call the Jasmine Daya & Co. team at 416-967-9100 or contact us online to schedule a free consultation.
[1] 2015 ONCA 110.
[2] See Rule 30.09 of the Ontario Rules of Civil Procedure [Rules].
[3] Ibid.
[4] See Rule 53.08 of the Rules.
[5] Supra note 1 at para 52.
[6] Supra note 1 at para 94, Nemchin v Green 2017 ONSC 1321 at para 16; and Rolley v MacDonell 2018 ONSC 164 at para 12.
[7] Rolley v MacDonell 2018 ONSC 164 at para 13.
