This is the final post in our series of “How to Best Leverage the Use of Surveillance and Investigation in Court”. In the previous posts we discussed obligations regarding the surveillance and investigative material before , during and after examinations, and before trial. In this blog post you will learn the final steps of using surveillance at trial.
USE OF SURVEILLANCE AT TRIAL
1. Using Privileged documents as Substantive Evidence
If a defendant wishes to use surveillance or investigative material as substantive evidence at trial, the defendant must comply with Rule 30.09, which sets out strict procedural requirements. Rule 30.09 requires the defendant abandon its privilege claim in writing, and provide a copy of the video, report or document to the plaintiff at least ninety days before the commencement of trial. Failure to comply with Rule 30.09 will limit the use of the material to impeachment purposes only, except with leave of the trial judge. The court has taken a strict approach to Rule 30.09 as can be seen in Youseef v. Cross, Giroux v. LaFrance and Smith v. Morelly.
2. Using Surveillance to Impeach
If the claim of privilege is not abandoned at least ninety days before trial, defence counsel will only be able to use the surveillance for the narrow purpose of impeaching the testimony of the plaintiff. If the Defendant has failed to provide surveillance particulars within this time frame, he or she risks adverse pre-trial orders, such as those issued in Sacrey v. Berdan, Murray v. Woodstock, Walker v. Woodstock, and Devji v. Longo Brothers.
In the event that the defendant does not advise of the existence of surveillance but seeks to use the surveillance to impeach the plaintiff at trial, counsel should be aware of the decision in Moore v. Canada Life. In that case, Canada Life retained investigators who conducted surveillance. The defendant did not provide particulars of surveillance, despite a request by counsel for the plaintiff at examinations for discovery. Three weeks before trial, counsel for Canada Life faxed his surveillance report to the plaintiff. At the outset of trial, when asked for the names of potential witnesses, counsel for Canada Life read out the names of three witnesses who had authored surveillance reports. The plaintiff moved to suppress the surveillance evidence based on Canada Life’s failure to provide timely disclosure of surveillance particulars. Canada Life argued that it should still be permitted to use the surveillance evidence for impeachment purposes. For the purpose of the motion, Justice Rivard assumed that the surveillance would show the plaintiff engaged in activities inconsistent with her alleged level of disability. He found that Canada Life’s failure to make timely disclosure of particulars deprived the plaintiff of the ability to make the evidence known to his own experts. Therefore, the defendant would have the unfair advantage of being able to discredit the plaintiff’s medical experts on the basis that their opinions were based on incorrect or incomplete information. Justice Rivard concluded that the prejudice to the plaintiff outweighed the value of the surveillance evidence in the assessment of the witnesses’ credibility. Consequently, he ruled that the surveillance evidence could not be tendered for any purpose.
In Smith v. Morelly, the defendant delivered surveillance several days before trial. The defendant sought to admit the evidence as substantive evidence, and sought leave to do so despite serving the tape after the expiry of the 90-day deadline. Justice Gilmore held that it would be unreasonable to permit the defendant to use the videotape as substantive evidence. However, Justice Gilmore held that the defendant would be entitled to use the evidence to impeach the testimony of the plaintiff. The plaintiff was granted the option of an adjournment in order to deal with the late disclosure. The plaintiff exercised this option and received significant costs of the motion and costs thrown away.
Before using surveillance to impeach the plaintiff, the defendant must comply with the rule in Brown v. Dunn. The rule requires an opposing party to give a witness an opportunity of explaining evidence which the cross-examiner intends to use later to impeach the witnesses evidence. Applying this rule to the use of surveillance as an impeachment tool, the defendant cannot use the video to ambush the plaintiff. The defendant must present the substance of the surveillance to the plaintiff and allow the plaintiff the opportunity to deny, explain or call evidence to rebut it.
In addition, the Defendant must satisfy the court that the surveillance satisfies the test for admissibility. In Landolf v. Farigone, the court set out the following test for the admissibility of surveillance for impeachment purposes:
“where evidence is tendered for impeachment purposes the admission of the evidence requires a showing of relevance to the credibility of a witness on a material matter and a further demonstration that the potential value of the proffered evidence to assist in assessing credibility outweights the potential prejudicial effect of the evidence.”
In the decision of Lis v. Lombard Insurance Co., the surveillance evidence tendered by the Defendant failed to contradict the evidence of the plaintiff. Bryant J. held:
¨A prior inconsistent statement or inconsistent/contradictory conduct is a well-recognized basis of impeachment. The plaintiff’s evidence at her examination for discovery and at trial is consistent concerning who did the shopping. The activity depicted on the videotape is consistent with her evidence given at trial concerning shopping on her days off. I find that the proffered surveillance videotape does not contradict Mrs. Lis’s answers made at discoveries or her evidence at trial. I find that the surveillance videotape is not admissible because it is not relevant to the credibility of the witness Mrs. Lis as to whether or not she suffers chronic pain as a result of the accident.¨
The use of material obtained from the internet or plaintiff’s social networking site is governed by the same rules of evidence and civil procedure as every other document sought to be introduced at trial.
Where a defendant wishes to use online investigative material at trial, over which privilege has been claimed, the defendant must have abandoned the privilege claim in writing and provided a copy of the material to the plaintiff at least ninety days before the commencement of trial, pursuant to Rule 30.09. If the claim of privilege is not abandoned at least ninety days before trial, defence counsel may only seek to use the evidence to impeach the testimony of the plaintiff.
Note that the photographs, entries, and other materials obtained from the internet (as opposed to the investigator’s report), would not satisfy the requirements for litigation privilege and ought to be have been disclosed under Schedule “A” of the defendant’s affidavit of documents. In the circumstances of late or non-disclosure, counsel may seek to rely on Rule 30.08 in an attempt to exclude the material.
Several decisions regarding the production and use of social networking content at trial are reviewed below:
In Kourtesis v. Joris, the defendant became aware at trial, after the plaintiff had testified, of a website controlled by the plaintiff which contained post-accident photographs of her. A mid-trial motion was brought before Justice Browne for production of the website material.
Justice Browne ruled that the defendant was permitted the defendant’s use of the photographs, with leave for the plaintiff to be recalled. Justice Browne’s findings may be summarized as follows:
- the photographs were not analogous to surveillance, of which the party is not aware, and over which she has no control;
- the photographs were “highly relevant”;
- the photographs had minimal probative value but they related to a material issue, namely the assessment of general damages;
- the images themselves were not prejudicial although there might be prejudice to the extent they were contrary to the plaintiff’s evidence, a prejudice that could be overcome by permitting the plaintiff to be recalled.
In Weber v. Dyck, the defendant brought a motion for production of certain photographs and video recordings from the plaintiff’s MySpace profile on the eve of trial. The defendant relied in part on the reasoning in the British Columbia case of Watt v. Meier, where the court held that where a plaintiff was claiming a significant disability, photographs from a vacation might be highly relevant to the question of the degree disability. In refusing to grant the defendant’s request in Weber, Master Pope held that the parties had consented to the action being set down for trial, but more importantly, the defendants had not requested production at the plaintiff’s examination for discovery, even though the photographs sought were from a trip the Plaintiff had taken the year before her discovery. Master Pope reasoned that the defendants must not have considered that material relevant. Master Pope further held that the plaintiff had testified that her injuries did not have any impact on her ability to travel and the photographs of her vacation were not relevant. Master Pope stated that the defendants had several images of the plaintiff from her MySpace profile with which they could cross-examine her at trial. Master Pope concluded that the defendant was not entitled to this form of further discovery.
In Nicholson v. City of Chattanooga, Tenn. the trial judge, while acknowledging that information obtained about the plaintiff from an anonymous blog appeared to be useful, questioned the origin and authorship of the material contained on it. He observed that it is possible to create a page on a social networking website or other online medium using another person’s name.
In Mayenburg v. Lu, the plaintiff claimed to have suffered soft tissue injuries in a rear end collision. Her claim included an amount for diminished earning capacity. During the trial, the defendant sought to introduce 273 photographs obtained from the Facebook “walls” of the plaintiff’s friends. The judge refused to admit those photographs which did not show her doing specific activities she said she had difficulty performing, since they had no probative value. This left 69 photographs which showed her hiking, dancing or bending. However, the judge ruled that even these did not undercut her credibility, since she had not said she could not do these activities, only that she would feel the consequence afterwards.
There are clear requirements for the disclosure of surveillance and on-line investigation which are set out under the Rules of Civil Procedure. However, the burden of ensuring timely disclosure of this material ultimately falls on plaintiff’s counsel. The plaintiff must be proactive and anticipate that surveillance and investigation will occur throughout the case. The plaintiff must make clear requests for this investigative material from an early point in the action and insist that the defendant comply with their obligations under the Rules to:
a) disclose the full particulars of surveillance and on-line investigation conducted up to the time of discovery;
b) provide an update affidavit of documents when surveillance and on-line investigation evidence is obtained;
c) provide the full particulars of surveillance and investigation conducted after examinations for discovery; and
d) provide the surveillance video at least 90 days before trial if the defendant intends to use the surveillance as substantive evidence.
Obtaining timely disclosure of surveillance and on-line investigation from the defendant will allow the plaintiff to know the case being built by the defendant and have the opportunity to respond to this material. Where a defendant has failed to comply with the disclosure obligations, a plaintiff may ultimately be able to exclude the material from a trial altogether, or at least significantly limit the use of the material by the defendant.
 May 11, 2006 (Ont. S.C.J.) (Court File No. 1355-98)
 2011 ONSC 6834 (S.C.J)
 (2006), 25 C.P.C. (5th) 9 (Ont. C.A.)
 (2006), 33 C.P.C. (6th) 120 (Ont. S.C.J.)
  O.J. No. 5539 (Ont. Sup. Crt.)
 Nicholson v. City of Chattanooga, Tenn 2005 WL 2657001 at 7 (E.D. Tenn. Oct. 18, 2005) cited in Brown, Mr. Justice David M., “Facebook, Cell Phone and Blackberry Transmissions” Presented at The Advocates’ Society Conference Tricks of the Trade 2010, January 22, 2010 at page 9.
 2009 CarswellBC 2580 (B.C.S.C.)