Lawyer's Weekly, January 2008

Under Rule 30 of Ontario's Rules of Civil Procedure, there is a requirement on every party in an action to disclose the existence of surveillance documentation in its Affidavit of Documents, including reports, photographs, videotapes, and DVDs that were or are in its possession, power, or control, relating to any matter at issue in the law suit.

Invariably, surveillance documents are, in the majority of legal proceedings, listed in Schedule "B" of the Defendant's Affidavit of Documents, subject to a claim of litigation privilege as having been prepared or created for the dominant purpose of litigation.

A party examined for discovery, while not under an obligation to produce the surveillance reports, videotapes, etc., must still provide detailed information of the surveillance undertaken, if requested by the Plaintiff, including all dates, times and precise locations of the surveillance undertaken; particulars of the activities and observations made; and the names and addresses of the persons who conducted the surveillance.

The Divisional Court in Walker v. Woodstock et al., [2001] O.J. No. 157, has clearly stated that a summary of the surveillance particulars during the discovery process must be disclosed, upon request, not only if the surveillance is to be tendered as substantive evidence, but also if its use is restricted to impeach the testimony of the party being observed.

Where a Defendant subsequently seeks to introduce the surveillance as substantive evidence at trial, they will be obliged to withdraw their claim of privilege (pursuant to Rule 30.09), by giving notice in writing to the Plaintiff and providing a copy of the surveillance documents, or by producing the surveillance documentation for inspection at least 90 days prior to the commencement of trial.

Alternatively, if the claim of privilege is not abandoned, the Defendant may not use the surveillance documents at trial, except to impeach the testimony of a witness, or with leave of the trial judge.

Once privilege has been waived and the surveillance documentation has been produced at least 90 days in advance of trial, it can be tendered into evidence by the Defendant, subject to meeting the test of admissibility, i.e. the surveillance reports and videotapes must accurately represent the true facts; must be depicted fairly without any intention to mislead the trier of fact; and must be verified under oath by a person capable to do so.

The trial judge may also, within his discretion, refuse to admit the surveillance documentation into evidence if he determines that the prejudice to the Plaintiff in allowing the videotapes outweighs their probative value.

Plaintiff's counsel should ensure they prepare their case for trial in order to limit the potential of any negative impact the surveillance evidence may have on the trier of fact.

Video surveillance tapes should, as a rule, always be viewed with the client. Where there is videotaped evidence that may be inconsistent with the Plaintiff's injuries and complaints as described in medical reports and at examination for discovery, the Plaintiff will have to explain the events depicted in the videotapes.

Counsel should check to see if the recorded surveillance dates can be linked to medical appointments, or other events attended by the Plaintiff. There may be occasions when physical activity, depicted on videotape, can cause the client to attend his or her family physician shortly thereafter with increased complaints of pain, i.e. the Plaintiff can then acknowledge during his examination in chief that he did engage in the activity depicted in the videotapes, but subsequently had to see his doctor as a result of that activity significantly increasing his pain level. The videotapes should also be sent to the Plaintiff's medical witnesses for their comments.

Plaintiff's counsel should examine the videotapes to ensure they are aware of how many hours of observation in total were undertaken of their client compared to the specific time limited activities that are depicted on the videotape. Plaintiff's counsel should determine whether the surveillance was conducted in consecutive days, or over a much broader period of time. The investigators should also be cross-examined to determine if there were significant periods of inactivity that were not recorded.

Counsel should ensure they receive copies of the investigator's field notes or handwritten diary entries to prepare for cross-examination, and to verify the entries are consistent with the information contained in the written report and videotapes. The brochures and websites of the surveillance firms should be scrutinized in order to demonstrate the investigator's bias in favour of his client when cross-examined at trial.

A jury should be made aware that conducting surveillance on behalf of insurance companies is a private investigator's "bread and butter", and that it has a strong financial incentive to provide the Defendant with a report and videotape that will be favourable to their position in the litigation, and that investigators are not retained to record observations of the Plaintiff that represent a true and accurate portrait of the Plaintiff's level of function.

In the writer's opinion, the most important technique Plaintiff's counsel should utilize at trial to minimize the impact of potentially damaging surveillance is to ensure that the client is properly inoculated.

Counsel can do this by introducing the surveillance evidence during the examination in chief of the Plaintiff (subject to the tapes being admissible), and in turn, give the Plaintiff an opportunity to explain what is being depicted on the videotapes. By adopting this technique you can limit the negative impact of the surveillance, and arguably maintain your client's credibility during the examination in chief and subsequent cross-examination.

As discussed earlier, Rule 30.09, also permits the use of undisclosed videotapes and surveillance reports to impeach a witness at trial. Under this Rule, the surveillance evidence will generally be admitted at trial if it is deemed to be relevant to the credibility of the Plaintiff on a material matter and where the probative value of the evidence is outweighed by its prejudicial effect.

Plaintiff's counsel should ensure that if the Defendant intends to use the videotapes for the purpose of impeachment that the Rule in Browne v. Dunn is followed requiring opposing counsel to cross-examine the Plaintiff on the specific facts depicted on the videos, and to afford the Plaintiff the opportunity to explain the content of the video surveillance.

Counsel should be prepared to call reply evidence, if warranted, to rebut the surveillance, and should ensure the trial judge instructs the jury in his charge that the videotapes should not be treated as substantive evidence.