Written By: William Harding and Cody Malloy, Student-at-Law
This decision confirms that there is a “very strict standard” a defendant must meet in order to withhold surveillance particulars from a plaintiff prior to a plaintiff’s examination for discovery. In Zeller, Justice Speyer applies the test from Ceci v. Bank, which states that if there is a “real likelihood that the plaintiff will tailor evidence if disclosure is made” the defendant may delay disclosure of surveillance particulars. 
In Zeller, the defendants had two surveillance reports regarding observations of the plaintiff. During the plaintiff’s examination for discovery, the plaintiff’s request for particulars of these reports was denied on the ground that defence counsel believed the plaintiff would tailor their evidence based on these particulars. Defence counsel’s position was that they could delay providing the particulars until after the plaintiff’s examination for discovery
Ruling of Justice Speyer
The defendant’s rationale for withholding particulars was that there were inconsistencies between the surveillance observations and three reports written by the defendant’s experts (two reports from a clinical neuropsychologist and one report from an occupational therapist). In comparing the neuropsychological reports to the surveillance reports, Justice Speyer found no sufficient reasons as to why the plaintiff would tailor their evidence. The neuropsychological reports pertained to the plaintiff’s cognitive abilities, whereas the surveillance reports pertained to the plaintiff’s physical abilities. Additionally, Justice Speyer found nothing “obviously inconsistent” between the occupational therapist’s report and the surveillance reports.
In conclusion, Justice Speyer found no real likelihood that the plaintiff would tailor their evidence if disclosure of the surveillance particulars was made. As such, the defendant was compelled to disclose the particulars of the surveillance reports.
 Ceci v. Bank, 7 O.R. (3d) 381 (Ont.C.A.)