Defence lawyers will typically obtain surveillance of a Plaintiff throughout the course of a lawsuit. Surveillance evidence typically consists of video footage of the Plaintiff carrying out their daily activities and a compilation of the Plaintiff’s social media pages, if any. This article focuses on video surveillance.
The Defence lawyer’s goal is to obtain a video recording of the Plaintiff completing tasks that they have stated under oath being unable to do. Such surveillance will undermine the credibility of the Plaintiff in the eyes of the jury or judge and may significantly weaken his/her case.
Surveillance evidence is a key strategy employed by insurance companies and can have a devastating effect on a Plaintiff’s case.
The purpose of this article is to outline how it may be gathered, how it may be used at Trial, the requirements that must be met for surveillance evidence to be admissible as evidence, and tips to protect the Plaintiff’s case against surveillance.
How it May be Gathered
The defence will retain an investigator to surreptitiously follow the Plaintiff with a video camera and record the Plaintiff. Typically, the investigator will wait near the Plaintiff’s home and will tail the Plaintiff once he/she leaves the home. Investigators may record the Plaintiff while grocery shopping, attending appointments, attending family functions, going golfing, going to a bar or restaurant, going to the gym, and more. Essentially, wherever the Plaintiff goes, the investigator will follow.
How it May be Used at Trial
The use of surveillance evidence can be for substantive purposes or to impeach the Plaintiff and undermine his/her credibility.
Where the defence seeks to use surveillance for substantive purposes, the surveillance can be used as evidence of the Plaintiff’s capabilities and the defence will ask the jury to find that the surveillance is direct proof of the Plaintiff’s functioning and capabilities.
By contrast, when the defence seeks to use surveillance for impeachment purposes, the video surveillance is not evidence but is aimed at contradicting the Plaintiff’s testimony. The video surveillance will be played for the jury during the Plaintiff’s cross-examination and defence counsel will ask the Plaintiff questions about the footage and try to highlight contradictions amongst the Plaintiff’s evidence and the video footage. For example, a Plaintiff may testify that she can no longer use her left hand a certain way and yet video footage reveals her to use her left hand exactly in that manner. When used to impeach the Plaintiff, the jury should not view the video surveillance as direct evidence of the Plaintiff’s capabilities, and Defence counsel should not suggest the video surveillance is evidence of the Plaintiff’s capabilities in closing submissions but should limit submissions to credibility issues.
Disclosure Obligations Based on the Use of Surveillance
Depending on how Defence counsel wishes to use video surveillance, certain disclosure obligations apply.
If Defence counsel wishes to use video surveillance as substantive evidence of the Plaintiff’s capabilities, then Defence counsel must disclose the actual video evidence (and list it in the client’s Schedule A Affidavit of Documents) at least 90 days in advance of trial as per rule 30.09 (and 30.07(b)). This is of some benefit to the Plaintiff and Plaintiff’s lawyer as they can prepare their case in response and possibly deal with the surveillance in the examination in chief to lessen the sting than if it were presented in cross-examination.
If Defence counsel wishes to use video surveillance for impeachment purposes only, then the video surveillance itself remains privileged and need not be disclosed. Defence counsel must list the surveillance in Schedule B of the client’s affidavit of documents, and upon request, disclose particulars of the surveillance such as the date, time and location of surveillance, nature and duration of the activities depicted, and the names and addresses of the investigators/videographers (Iannarella et al. v Corbett et al (2015 ONCA 110). This too, is of some benefit to the Plaintiff as the Plaintiff and his/her lawyer will have a general idea of the surveillance, although they will not see the actual footage in advance of trial.
Where the Defendant has completely failed to disclose the surveillance evidence or any information about the footage, then the surveillance evidence should not be admitted for any purpose unless with leave from the trial judge (Iannarella et al. v. Corbett et al and Rules 30.08(1)(a)). Rule 53.08 is relevant to determining whether the trial judge will grant leave to permit use of the undisclosed video surveillance. Rule 53.08 indicates that leave shall be granted on such terms as are just with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or cause undue delay. In some cases, an adjournment to enable Plaintiff’s counsel to view the footage or be provided with the necessary particulars may be appropriate, whereas in other cases outright exclusion of the evidence may be necessary.
Where the Defendant completely fails to disclose information about the surveillance and the surveillance itself, the result is a trial by ambush. The discovery obligations in the Rules of Civil Procedure are intended to prevent exactly that, and Plaintiff’s counsel should vehemently oppose the introduction of surveillance for any purpose where it has not been properly disclosed. Trial judges may be reluctant to admit evidence in these circumstances as it may provide a viable ground of appeal.
Additional Requirements to be Admissible in Evidence
Even if the above disclosure obligations have been met, this does not guarantee the surveillance will be admissible at trial. Additional requirements must be met. The trial judge, during a voir dire, must conduct a granular assessment of each piece of video evidence and determine whether it is admissible. A trial judge should not apply blanket rulings to all surveillance but must conduct a piece-meal assessment of each clip in relation to the following criteria:
1. First, the evidence must be relevant. To be relevant, the evidence must prove or disprove a fact that is in dispute. Typically, video evidence of the Plaintiff’s abilities to engage in activities will have an impact on the issues in dispute and have probative value (Rumney v. Nelson, 2021 ONSC 5632). The Court of Appeal clarified that video surveillance does not become irrelevant and thus excluded simply because it is consistent with the Plaintiff’s testimony as to her functional capabilities (Nemchin v Green, 2019 ONCA 634 at paras 18-20). Video surveillance need not contradict the Plaintiff to remain relevant, it may be used to qualify and contextualize the Plaintiff’s evidence (Nemchin v Green, 2019 ONCA 634 at para 47).
2. Second, the video surveillance must be a fair and accurate depiction for the surveillance to be admitted and the videographer should be examined to confirm the content of the recording (Nemchin v Green, 2019 ONCA 634). Excerpts of video recordings are prima facie admissible as soon as it is established that it depicts the scene and has not been altered or changed (Nemchin v Green, 2019 ONCA 634 at 61). Video surveillance does not become inadmissible because raw unedited footage is split up into excerpts or compiled in chronological order.
3. Third, the trial judge must ensure that the use of the surveillance video will not impair trial fairness. This overlaps with the trial judge’s gatekeeper role to exclude evidence where its probative value is outweighed by its prejudicial effect. Prejudice may arise where the evidence has a detrimental impact on trial fairness, or where receiving the evidence would cause inordinate delay of the trial that is not commensurate with the value of the evidence, or where its reliability is outweighed by its potential to mislead the trier of fact (judge/jury) (Rumney v. Nelson, 2021 ONSC 5632).
An example of misleading surveillance evidence giving rise to prejudice is where investigators obtained surveillance of the Plaintiff on her wedding day. It is to be expected that the Plaintiff would exert out of the ordinary efforts on one important day, the wedding, and that this might leave the jury with an unfair and misleading picture of her typical capabilities (Rumney v. Nelson, 2021 ONSC 5632). Indeed, the investigators likely knew that the Plaintiff would exert out of the ordinary efforts on her wedding day and chose to film her on that day for that reason.
Another example of when the judge may exclude the evidence under the third criterion is when it was not shown to the Plaintiff during the trial, consistent with the Browne v. Dunn rule, which is intended to ensure fairness to witnesses. The rule in Browne v. Dunn has morphed throughout subsequent caselaw, but essentially the Plaintiff must be presented with materially contradictory evidence and be given an opportunity to explain that evidence. In other words, a witness should not be called a liar without being given an opportunity to explain the contradictory evidence (Nemchin v Green, 2019 ONCA 634 at para 31). As such, surveillance evidence that materially contradicts the Plaintiff’s evidence should be presented to the Plaintiff in cross-examination otherwise it may not be admitted.
A material contradiction may exist where the Plaintiff explicitly testifies being unable to perform a certain movement with his left hand and yet video surveillance captures the Plaintiff performing that exact movement with his left hand (Nemchin v. Green, 2019 ONCA 634 at para 29). But, where there is relatively little difference between the Plaintiff’s claimed functionality versus that which is shown on the surveillance, then the footage may be led by the defence without first showing it to the Plaintiff. This will be a matter for the trial judge’s discretion.
Under the third criterion, surveillance evidence may also be excluded where the way it was obtained might bring the administration of justice into disrepute. This may occur when the investigator has invaded the Plaintiff’s reasonable expectation of privacy, such as filming the Plaintiff in her own home through a window or where the Plaintiff is mourning the loss of her mother at a funeral. This may occur where the investigator was engaged in unlawful conduct while collective the evidence, such as speeding on a crowded highway (Taylor v. Durkee, 2017 ONSC 7358).
The test to admit surveillance evidence is the same whether it will be used for impeachment purposes or substantive purposes (Nemchin v Green, 2019 ONCA 634 at para 10).
How Will Surveillance Evidence be Presented?
When surveillance is used for impeachment purposes the defence lawyer will confront the Plaintiff with the video surveillance during cross-examination and ask questions about the footage and highlight how the video footage contradicts the Plaintiff’s evidence, if at all.
When surveillance is used for substantive purposes, the footage itself becomes evidence. Plaintiff’s counsel may choose to present the surveillance evidence to the Plaintiff in chief to mitigate its impact. Otherwise, the defence will present the evidence to the jury in cross-examination of the Plaintiff or through examination-in-chief of the videographer. However, leading the evidence through examination-in-chief of a videographer where it is not shown to the Plaintiff is subject to the Browne v. Dunn rule, discussed above.
How to Prevent Effective Surveillance Evidence from Being Gathered by the Defence
Surveillance evidence is typically gathered after a discovery examination as it is during this examination that the Plaintiff will provide evidence, under oath, as to his functional limitations.
The best defence against effective surveillance is complete honesty at every step of the proceeding including at the examination for discovery and throughout trial. If a Plaintiff accurately states his/her limitations, then there should be no surveillance evidence that will contradict the Plaintiff’s claims and undermine the Plaintiff’s credibility. No one is perfect, and there may be minor discrepancies caught on camera. However, minor discrepancies are easier to explain than major discrepancies.
If a Plaintiff is forthright about his/her limitations, then video surveillance will only reinforce the Plaintiff’s evidence. In such cases, the defence’s use of surveillance evidence may antagonize the jury against the defendant and the jury may sympathize with the Plaintiff who has been needlessly followed. They may also feel that the defence lawyer’s decision to present such evidence is a waste of time. Experienced Plaintiff’s lawyers know that credibility is the most important part of a Plaintiff’s case and will instruct the Plaintiff to provide honest and forthright evidence, which will limit the defence’s ability to obtain effective surveillance.
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