February 18, 2015 by Canadian Underwriter
The Court of Appeal for Ontario has overturned an earlier decision in a lawsuit arising from an auto collision, finding that the defendants breached the province’s Rules of Civil Procedure in making a video of surveillance of the plaintiff an exhibit – and cross-examining the plaintiff on its contents – without having disclosed the existence of surveillance in an affidavit of documents.
In a ruling released Tuesday, the province’s appeal court set aside a judgement of the Ontario Superior Court of Justice. The appeal court substituted a finding of liability against Stephen Corbett and St. Lawrence Cement Inc., who were sued by Andrea and Giuseppina Iannarella after a collision in February, 2008.
Andrea Iannarella was driving a pickup when he was rear-ended by the Corbett, who was driving a concrete mixer, on Ontario Highway 427, in stop-and-go traffic on a snowy evening.
“The jury found Mr. Corbett had not been driving negligently and the action was dismissed on liability grounds,” wrote Mr. Justice Peter Lauwers, of the Court of Appeal for Ontario, of the original court ruling in 2012. “Had liability been established, the jury would have awarded general damages of $32,000 and $40,571 as damages for past income loss, but would not have awarded damages for future income loss.”
The trial judge also dismissed Iannarella’s claim for non-pecuniary damages “on the basis that the statutory ‘threshold’ for this type of recovery” under Section 267.5 of Ontario’s Insurance Act was not met.
The issues on appeal included the trial judge permitting the defendents to use surveillance evidence.
In overturning the trial jury and ruling the defendants liable, the appeal court found Corbett “was plainly going too fast for the weather and road conditions and could have avoided the collision accident by exercising sufficient care.”
Justice Lauwers also noted that during the trial, defence lawyers played a video from surveillance of Iannarella and cross examined Iannarella on its contents.
Court records indicate that excerpts of the video shown to the jury “show Mr. Iannarella variously waving his left arm, carrying a garbage bag, driving and turning the steering wheel with his left hand, reaching with his left arm to the top shelf in a grocery store to retrieve an item, and driving on a 400 series highway,” Justice Lauwers wrote. The defendants “claimed at trial that these activities are inconsistent with Mr. Iannarella’s self-reported limits on his functionality caused by the collision.”
The defendents contended that the plaintiffs were “not entitled to an affidavit of documents or to surveillance particulars since they had not sought the affidavit and had waived examinations for discovery before the matter was set down for trial,” noted Justice Lauwers.
But the appeal court found the defendants breached three sections of the Rules of Civil Procedure: “rule 30.03(1) by failing to serve an affidavit of documents; rule 30.07(b) by failing to disclose surveillance conducted after the matter was set down for trial in an affidavit of documents; and, inferentially, rule 31.09 obliging the respondents to correct answers given on an undertaking ultimately leading to the provision of surveillance particulars.”
“The trial judge erred at the trial management conference,” Justice Lauwers added. “He ought to have ordered the respondents to serve an affidavit of documents disclosing the surveillance or at least to disclose such particulars as are ordinarily provided through a discovery undertaking.”
The other two judges hearing the appeal – Mr. Justice John Laskin and Mr. Justice William Hourigan – agreed.
They ordered a new trial on the issue of damages.
“Privileged documents must be included in a party’s affidavit of documents,” Justice Lauwers wrote. “Under rule 30.03(2)(b), video surveillance is typically identified in Schedule B to the affidavit of documents as a privileged document. The plaintiff then has the opportunity to seek full particulars of the surveillance from the defence at examination for discovery; the ‘particulars’ of surveillance that must be disclosed on request include the date, time and location of the surveillance, as well as the nature and duration of the activities depicted and the names and addresses of the videographers.”