In 2015, I was honoured to speak to Stieber Berlach’s clients on the then recent Ontario Court of Appeal decision and leading case on surveillance, Iannarella v. Corbett, 2015 ONCA 110 (CanLII) (http://canlii.ca/t/ggbk3). I was pleased to deliver a paper I had written on the topic of properly using surveillance evidence in litigation cases.
Fast-forward three years and this latest decision on the use of surveillance from the Ontario Superior Court of Justice shows that: (1) parties still disagree on when surveillance ought to be served and (2) defendants are finding themselves in a predicament when obtaining fresh surveillance close to trial: Jamieson v. Kapashesit, Abitong et al. 2018 ONSC 279 (CanLII), http://canlii.ca/t/hpsh4.
Fresh surveillance is helpful to the court because it can show the plaintiff’s current functional abilities and in a way that is understandable and relatable. On the other hand, defendants obtaining and serving surveillance too close to trial can be accused of engaging in trial by ambush and forced to pay costs thrown away.
In Jamieson, the Abitong defendants brought a motion four days before trial to use surveillance it had just acquired, had previously disclosed and produced, albeit the unedited video was produced days before trial.
Connell J. declared a mistrial and granted an adjournment such that neither the plaintiffs nor the defendants would suffer prejudice. The adjournment permitted the plaintiffs to review the surveillance, make informed decisions, and to properly prepare for trial. The adjournment permitted the defendants to make use of the surveillance evidence, if so advised. Connell J. held the defendants’ actions primarily necessitated that a mistrial be declared and that an adjournment be granted in order to avoid prejudice. Given the circumstances, the court ruled the Abitong defendants pay $11,300 in costs for the adjournment.