Written By: William Harding and Ryan Marinacci, Student-at-Law
Whenever Plaintiff’s counsel conducts an examination of the Defendant, requesting particulars of any surveillance conducted by the Defendant in advance of the Plaintiff’s discovery is of paramount importance. Recently, certain defence counsel have attempted to withhold this summary of surveillance until after the Plaintiff is fully examined. Before allowing the Plaintiff to be examined, counsel should note that the test for withholding surveillance particulars is an exceptionally high one. The Defendant must establish a real likelihood that the Plaintiff will tailor his or her evidence if the disclosure is made. Simply asserting that there is evidence of inconsistencies is not enough to withhold surveillance particulars.
Justice Speyer in Zeller v Volpe-Scornaienchi, 2021 ONSC 813, recently ordered the disclosure of surveillance particulars to the Plaintiff and found that the Defendant did not meet “very strict standard” for withholding those surveillance particulars laid out in Ceci v Bonk, 1992 CanLII 7596 (ON CA). The Court in Ceci held that particulars of surveillance could only be withheld during examination for discovery where a Defendant established on the evidence “a real likelihood that the plaintiff [would] tailor evidence if disclosure [was] made.”
The Defendant in Zeller did not meet that standard. Her counsel refused during her examination for discovery to provide particulars of the surveillance conducted of the Plaintiff, and stated “I don’t wish to provide it before your client’s discovery takes place. It may cause him to tailor his evidence” and, “I’ve reviewed the medical reports and the surveillance and based on that, I fear that he may tailor his evidence.”
Accordingly, the Plaintiff brought a successful motion for the production of the surveillance particulars, which included the identity of the individual(s) who conducted surveillance of the plaintiff, the dates of the surveillance, a summary of what was observed during the surveillance and a description of what was depicted in any videos or photographs obtained during the surveillance.
The Court of Appeal in Iannarella v Corbett, 2015 ONCA 110, made clear that the Plaintiff was presumptively entitled to the information sought during the examination of the Defendant. Nonetheless, the Defendant attempted to resist production by arguing that the Plaintiff might tailor his discovery evidence should disclosure be made. In support of her position, the Defendant pointed to purported inconsistencies between the Plaintiff’s activities on the surveillance and the contents of insurer examination reports by a neuropsychologist and an occupational therapist. She also tried to rely on the decision in Salame v. Neilson, 1998 CarswellOnt 1375, 22 C.P.C. (4th) 295, where the Defendant met the test in Ceci and successfully withheld surveillance particulars.
Justice Speyer disagreed and found that nothing in the IE reports was inconsistent with the surveillance reports. Starting with the neuropsychologist’s report, Justice Speyer rejected the argument that the Plaintiff’s scores on the Structured Inventory of Malingered Symptomology (SIMS) or his over-reporting of emotional distress, somatic and complaints could meet the test under Ceci. Indeed, Justice Speyer noted that the neuropsychologist in these same reports went on to make a diagnosis and prescribe treatment. The neuropsychologist also concluded that the Plaintiff made a concerted effort to engage in the testing process and passed internal validity checks.
In Justice Speyer’s view, there was no basis in the neuropsychologist’s reports to conclude that the Plaintiff would tailor his evidence if made aware of the contents of the surveillance reports.
Likewise, Justice Speyer found that the occupational therapist’s report did not establish a real likelihood the Plaintiff would tailor his evidence because it contained no obvious inconsistencies with the surveillance reports.
By contrast, in Salame three different orthopaedic surgeons noted obvious inconsistencies in the Plaintiff’s physical limitations. The first found no evidence of any on-going physical problems, and concluded that the Plaintiff had recovered from the effects of the collision and required no further treatment. The orthopaedic surgeon continued,
At the present time, this lady complains of pain here, there and everywhere. She states that nothing has improved since the time of the accident. When one actually examines her physically, there is nothing to find. There is ample evidence of symptom exaggeration. She has a full range of movement in her knee and ankle. Her hysterical gait disappears when she walks on tiptoe.
The second found a number of inconsistencies in the Plaintiff’s history and physical examination, and wrote,
From Ms. Salame’s clinical presentation, I am limited by her inability to tolerate any discomfort and concur with Shelley Marchand’s interpretation that Ms. Salame’s tolerance levels are quite low. During my physical examination […] she became quite distraught with minor palpation of the abdomen. Because of this over-reaction I was reluctant to stress her injured shoulder.
The third noted that the Plaintiff’s physical examination revealed a healthy, young muscular female, and that her unusual gait while walking on her right tiptoes did not stop her from walking on her heels when requested.
Justice Cavarazan found that those inconsistencies established the real likelihood the Plaintiff would tailor her evidence after receiving the surveillance particulars required by Ceci to withhold disclosure until after discovery. Justice Cavarazan concluded,
There is evidence before me which suggests that the plaintiff exaggerates symptoms. On one physical examination walking with an altered gait disappears when she walks on her tiptoes. On a second examination by a different doctor, she has an unusual gait walking on her right tiptoes but could walk on her heels, presumably without difficulty. At a third examination, she became quite distraught with minor palpation of the abdomen.
At this stage, the fact that three different orthopaedic surgeons have expressed concern about symptom exaggeration, or about inconsistencies between the history given and physical findings on examination, weigh heavily in the balance.
The difference between the evidence in Salame and in Zeller was plain. Were a high score on the SIMS—with all its frailties—or quotes taken out of context from IE reports the standard, withholding surveillance particulars would occur frequently. However, that Salame is the one decision where surveillance particulars were successfully withheld in the nearly twenty-nine years since Ceci is indicative of how high a threshold a Defendant must meet in order to do so.
In the result, Justice Speyer ordered the disclosure of the surveillance particulars within seven days of the endorsement.