Surveillance Evidence In Personal Injury Cases Must Be Disclosed Before Trial

April 16^th, 2015

Recently  in Iannarella v. Corbett 2015 ONCA 110,  the Ontario Court of Appeal released an important decision regarding the disclosure of surveillance evidence in a personal injury trial.

Defence lawyers love to use surveillance videos at trial to show that accident victims are exaggerating, or even faking, their injuries. A good surveillance video can be devastating to a plaintiff at trial.

However, most cases with devastating surveillance never make it to trial and the plaintiffs facing such video may well settle for a lower amount long before trial. That is because the Rules of Procedure in Ontario require defence counsel to disclose surveillance particulars to injury victims well in advance of trial.

Our system does not allow “trial by ambush”. All significant pieces of evidence should be out in the open long before the trial so both parties are able to clearly address questions of, should we settle or should we try the case? Full and frank disclosure is critical to keeping our court system flowing, with only the really controversial cases using up courtroom time and space.

I’m not really sure how to explain how the lower court  Judge allowed into evidence, surveillance video that was never disclosed, nor vetted through a preliminary ruling on admissibility (voir dire). Suffice to say the Court of Appeal fixed that mistake and then went on to clearly set out the obligations of the parties for full and frank disclosure before trial.

All documents,  from all parties, must be disclosed in advance and the penalty of failing to comply should be to not allow such evidence to be presented to the jury. Hard to believe we needed the Court of Appeal to remind us of this.

Andrea Girones is a personal injury lawyer in Ottawa, visit her website at www.girones.ca