Canadian Underwriter

Mixed result for motor vehicle injury plaintiff’s bid to quash surveillance evidence

August 25, 2021   by Greg Meckbach

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Insurers defending auto tort claims should think twice before surreptitiously filming plaintiffs on their wedding day.

This is among the takeaways from Rumney v. Nelson, released Aug. 19 by the Ontario Superior Court of Justice.

A construction firm is being sued by the driver of the car that was struck from behind Sept. 13, 2012. Also named as a defendant is the driver of the construction firm’s vehicle. Allegations against the defendants have not been proven in court. A trial is scheduled to begin this October.

The Aug. 19 ruling is on a series of motions the plaintiff is bringing to court. Among them are a request for the court to exclude 10 video surveillance clips taken by a private investigator on behalf of the defendant.

The plaintiff argues that private investigator trespassed on private property when the surveillance was taken during the summer of 2018. The plaintiff also argues the private investigator invaded the plaintiff’s privacy.

Justice Judy Fowler Byrne ruled partly in the plaintiff’s favour in her Aug. 19, 2021 decision. As a result, three video clips – taken at different times on Aug. 18, 2018 – are excluded as evidence. Aug. 18, 2018 was the day of the plaintiff’s wedding ceremony and picture taking. Two of those videos were taken from a golf club while a third was taken from the property of a private school. Although the plaintiff argued the photos invaded her privacy, that was not the reason Justice Fowler Byrne ruled those three videos inadmissible as evidence.

“The appearance of the plaintiff on one important day, where her activities and the efforts exerted by her are clearly out of the ordinary, may unfairly prejudice the plaintiff in that it could unfairly divert or misled the jury’s attention,” Justice Fowler Byrne wrote.

“The investigators knew that this was an important day and knew the Plaintiff’s activities would be beyond her normal day to day activities. It can only be assumed that the defence sought to take advantage of that situation.”

As for the other seven videos, the plaintiff argued the defendant’s private investigator was trespassing on private property while they filmed her. Admitting those videos as evidence, the plaintiff argued, would bring the administration of justice into disrepute.

Justice Fowler Byrne disagreed.

“Even if there was clear signage in 2018 that unauthorized persons were not permitted, I do not interpret parking in a school parking lot during non-school hours or parking at a place of worship when the facility was not in use, to be the type of unlawful conduct that would result in bringing the administration of justice into disrepute,” she wrote.

“With respect to the golf course, all golf courses, even private ones, anticipate visitors coming onto their property. People can attend to inquire about membership, purchase something in the pro shop or enquire about having their wedding at the facility.  The ‘no trespassing’ signs are clearly in reference to the greens and fairways. Accordingly, I would not consider parking in the parking lot of a golf course to be the type of unlawful conduct that would bring the administration of justice into disrepute.”

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