This (Ontario) C.A. decision came down on Feb. 17, 2015 (though page 34 of same [on CanLii at any rate] states it “Released: February 17, 2016” [emphasis added] – perhaps that’ll will be the S.C.C. release date if the case goes to the Big House?

Case: Iannarella v. Corbett, 2015 ONCA 110

Keywords: MVA, Surveillance Evidence

Issues: the appeal raises five issues *, of which one is noted here.

Basic facts: Mr. & Mrs. Iannarella are rear-ended by a concrete mixer “on a snowy February evening”, “stop and go traffic on Highway 427”. The truck driver says “accident was caused by ‘mother nature’ ”. Mr. Iannarella claims rotator cuff injury (had two surgeries on same later) and chronic pain. (Paras. 3-5)

Surveillance evidence: 130 hours over a 5-month period, including “the evening before the trial”. During cross of Mr. Iannarella, defence “tendered a video disc of the surveillance that was about 27 minutes long”. The trial judge permitted it be played (to the jury), made the video an exhibit, “though the [defence] had not disclosed the existence of surveillance in an affidavit of documents as required by the Rules and had not provided particulars of it”. (Paras. 26-27)

“… usual way in which surveillance evidence is handled…”: with reference to personal injury cases, the C.A. set out the following guide (in paras. 32-116), just the headings of which are as follows (ie required reading for personal injury & defence folks):

A. Factual Background

B. The Issues

C. Analysis

(1) The Liability Onus Issue

  • (a) The Law on the Onus of Proof
  • (b) The Trial Judge’s Treatment of the Onus
  • (c) The Jury Charge on Liability
  • (d) Disposition of the Liability Issue

(2) The Surveillance Issues

(a) Disclosure and Production Obligations under the Rules

  • (i) Disclosure Obligations for Privileged Documents
  • (ii)The Disclosure of Video Surveillance

(b) The Respondents did not meet their Surveillance Disclosure Obligations

  • (i) The Obligation to Serve an Affidavit of Documents is Mandatory
  • (ii) Subsequent Surveillance Must be Disclosed
  • (iii) The Right to Further Discovery
  • (iv) The Trial Judge Ought to have Granted a Remedy

(c) The Use of Surveillance Evidence at Trial

  • (i) The Trial Judge Should not have Granted Leave to the Appellants to Use the Surveillance Evidence
  • (ii) The Surveillance Evidence was not Tested for Admissibility for Impeachment   Purposes
  • (iii) The Surveillance Evidence was Impermissibly Used for Substantive Purposes
  • (iv) Disposition of the Surveillance Evidence Issues

(d) The Use of Experts’ Reports in Mr. Iannarella’s Cross-Examination

  • (i) Objections to Mr. Iannarella’s Cross-Examination
  • (ii) Analysis

(3) The Threshold Motion

(4) The Costs Disposition

D. Disposition 

Before noting:

  • that plaintiffs’ appeal counsel (Mr. Zuber) was not trial counsel
  • that the “trial judge enabled what amounted to a trial by ambush”
  • that defence “cannot be absolved of … disclosure obligations”
  • the C.A does “not excuse the lapse in good trial practice by [plaintiff] trial counsel…by failing to pursue…entitlement at an earlier stage” (para.70)

the C.A. looked at, and commented upon, the relevant Rules and authorities, as well as referencing recent articles on the topic, holding:

  • the liability appeal is allowed
  • substituting a finding of liability on the defendants (driver and employer)
  • new trial on damages (para. 141).

As to costs,

  • “…of the trial will be to the appellants in the cause on the second trial.”
  • of the appeal, to the appellants (paras. 141-142).

Counsel for the Appellants: David Zuber, Joseph Villeneuve (Zuber & Company LLP, Toronto)

Counsel for the Respondents: Martin Forget (Forget Smith Morel, Toronto)

Discuss on Canlii Connects

*  1. Liability onus to the jury

2. Use of surveillance evidence

3. Trial judge permitting expert reports projected on a screen for the jury during XE of the plaintiff

4. SABS analysis by the trial judge

5. Costs