Plaintiffs’ Entitlement to Surveillance Particulars Bolstered, Supplementary Affidavit of Documents Requirements Muddled

In Iannarella v. Corbett 2015 ONCA 110, released February 17, 2015, the Court of Appeal has bolstered the right of plaintiffs to obtain surveillance particulars, but in doing so it seems to have unnecessarily created a serious problem: it held that a party is obliged by a combination of rules 30.06 and 30.07(b) to provide an updated affidavit of documents listing any surveillance reports (and therefore presumably any privileged documents) created after the party’s affidavit of documents has been sworn. Lawyers may be kept busy preparing updated affidavits of documents.

In this personal injury/rear-end motor vehicle accident case, the action was dismissed. The jury found no liability, the trial judge dismissed the claim for non-pecuniary damages based on the threshold, and the jury assessed a modest amount for past income loss and nothing for future income loss. The plaintiffs appealed. The Court of Appeal overturned the jury’s verdict on liability (see our related article about rear-end collisions), and ordered a new trial on damages, because surveillance had not been disclosed by the defence (among other reasons).

Investigators for the defence had shot about 130 hours of surveillance video.  None of the surveillance was disclosed before trial. There were two unusual features of the case:

1. defendant’s counsel had never served an affidavit of documents, and plaintiff’s counsel had not required one before setting the action down for trial; and
2. plaintiff’s counsel had never conducted an examination for discovery of the defendant, and therefore had not made a request for particulars of surveillance at discovery.

As the trial approached, plaintiff’s counsel did request the particulars of any surveillance, and defendant’s counsel refused to provide them. At a trial management conference the week before the trial started, the plaintiffs “unsuccessfully sought an order requiring the [defendants] to produce an affidavit of documents and to disclose the particulars of the surveillance.” The trial judge apparently accepted the defence position 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.”

The Court of Appeal pointed out that the obligation to serve an affidavit of documents is mandatory:

The trial judge’s implicit reliance on rule 48.04 as the authority for refusing to make the order requested by the [plaintiffs] because they had set the action down for trial was misplaced. Unlike rule 31.03(1), which provides that a party “may” conduct an examination for discovery, rule 30.03(1) provides that a party shall serve an affidavit of documents. The obligation to provide an affidavit of documents, which includes listing privileged surveillance in the accompanying Schedule B, is mandatory. This is the way in which a claim to privilege is to be asserted for the purpose of rule 30.09.

The trial judge also rejected the plaintiff’s argument that the surveillance evidence should be excluded under subrules 30.08 and 30.09. The Court of Appeal described the remedies the trial judge should have considered, including an order that the defence serve an affidavit of documents and particulars of the surveillance, and perhaps an adjournment with costs to the defence, since the plaintiffs “were not without fault.” The Court expressed strong disapproval:

Instead, the trial judge enabled what amounted to a trial by ambush, which is completely inappropriate under the Rules…  In the circumstances, the respondents cannot be absolved of the disclosure obligations set out above. I do not excuse the lapse in good trial practice by appellants’ trial counsel … by failing to pursue the appellants’ entitlements at an earlier stage. However, the weight of the disclosure obligations falls on the respondents, and rule 48.04 does not provide them with an escape route.

The Court of Appeal also held that the trial judge should not have granted leave to the defence to use the surveillance, and was critical that the surveillance was used not just for impeachment but also for substantive purposes. As indicated, a new trial on damages was ordered.

The problem

I do not quarrel with any of the above. It is rare that defence counsel will attempt what was done here, not to mention risky, as at a minimum there was a large risk that the trial judge would exclude the surveillance in its entirety in such circumstances. The defence investment in 130 hours of surveillance could thereby have been wasted.  The problem, however, is that the Court of Appeal also held that a party is obliged to provide an updated affidavit of documents listing new surveillance obtained after its first affidavit of documents is served. As the defendant had not served an affidavit of documents, the fact situation did not require the Court to weigh in on this issue,[1] but the argument had been included by the defendant/respondent, and Justice Lauwers squarely stated:

In my view, a party is obliged by a combination of rules 30.06 and 30.07(b) to provide an updated affidavit of documents listing the new surveillance. Further, the party must disclose the particulars of this subsequent surveillance upon request under rule 31.09(1)(b). These disclosure obligations are fundamental and extend to surveillance obtained after the original affidavit of documents is served.

In making this ruling, Justice Lawyers held that the “or” found between clause 30.07(a) and 30.07 (b) was disjunctive. In full, the subrule states:

30.07  Where a party, after serving an affidavit of documents,

(a) comes into possession or control of or obtains power over a document that relates to a matter in issue in the action and that is not privileged; or

(b) discovers that the affidavit is inaccurate or incomplete,

the party shall forthwith serve a supplementary affidavit specifying the extent to which the affidavit of documents requires modification and disclosing any additional documents.

Justice Lauwers was of the view that both Jones v. Heidel,[2] and MacDonald v. Standard Life Assurance Co.[3] were incorrect.  He said:

In my view, the analysis in both cases is mistaken, since the judges focused exclusively on rule 30.07(a) and ignored the disjunctive “or” that leads to the obligation to provide an updated affidavit of documents under rule 30.07(b) even for privileged documents.

However, with respect, Justice Lauwers’ interpretation denudes the phrase “and that is not privileged” in clause 30.07(a) of any meaning.  These words become completely surplus under Justice Lauwers’ interpretation.  Indeed, the entirety of clause 30.07(a) would be unnecessary.  This interpretation therefore offends the rule of statutory interpretation that every word and every provision of an enactment is to be given effect.[4]

Justice Lauwers’ interpretation would presumably work both ways. For example, a medical report obtained by the plaintiff after service of an affidavit of documents would have to be disclosed in a supplementary affidavit of documents, even if privileged and even if the plaintiff does not intend to rely on it. However, in the personal injury and insurance area, the obligation to continue to disclose the existence of privileged documents after serving an affidavit of documents will undoubtedly disadvantage defendants more heavily.

The word “forthwith” in 30.07 (b) also needs to be given effect. It now appears that a party must forthwith serve a supplementary affidavit of documents whenever a new relevant document is created, because the affidavit becomes “incomplete” each time a new relevant document is created, whether the document is privileged or not.  Justice Lauwers does not deal with the timing of service of the supplementary affidavits of documents. He quotes from Howden J.’s 2012 costs decision Beland v. Hill,[5] in which it was said that the defendants “were required to serve a supplementary affidavit disclosing the additional document, i.e. the surveillance record, in a timely manner before trial” (emphasis added). Technically, however, Justice Howden’s description does not satisfy the requirements of Rule 30.07(b).

Recall also the 1990 decision of Master Sandler in Waxman v. Waxman[6] and the decisions which have followed it,[7] which have held that parties may be compelled to particularize schedule B of their affidavits of documents, “to list separately, and date where appropriate, each and every document”, and the description is to include the “function, role, and status of the receiver and sender of each document in question, and their relationship to the party to the action.”[8] If Justice Lauwers is correct, and if parties insist on a fully particularized schedule B, lawyers would need to be constantly serving supplementary affidavits of documents, each time they create or receive a relevant privileged document after serving an affidavit of documents.

In practice, I expect that most counsel will comply with this rule by disclosing the existence of significant privileged documents once received, and that the current usual practice of not particularizing privileged correspondence will remain.[9] Query, however, whether plaintiff’s lawyers can now insist that a supplementary affidavit of documents with a particularized Schedule B be provided forthwith for each newly created privileged document. Would defence counsel have to serve a supplementary affidavit of documents upon sending a letter of assignment to an investigator? This would undermine the defence’s ability to gather surveillance, as the plaintiff would be alerted to each documented communication to an investigator. This is clearly not sensible, and likely not what the Court of Appeal intended, but this area of our procedural law has been muddled.

Does disclosure of surveillance encourage settlement?

The Court of Appeal in Iannarella also accepted the conventional wisdom that requiring disclosure of surveillance will encourage settlement. In my view, this is not self-evident. I think many plaintiff lawyers will say that disclosure of surveillance does encourage settlement, and many defence lawyers will say that it does not.

I do agree that if surveillance is particularly devastating to a plaintiff, its disclosure will encourage settlement; however, in those cases the defence will often produce the full surveillance video recordings in order to ensure their admissibility as substantive evidence of the plaintiff’s abilities. Indeed, the defence will often disclose surveillance videos because they think the videos will encourage settlement.

When surveillance is not devastating, its disclosure does little or nothing to encourage settlement. Typical surveillance shows the plaintiff running errands. The defence will consider it revealing in that it shows someone who appears to be moving, behaving and living normally. On the other hand, the plaintiff will not see it as inconsistent with anything he or she has said. The parties will disagree on its value. If it is disclosed, the plaintiff will have the opportunity to tailor his or her evidence to accord with the surveillance. Furthermore, typically the defence has no practical way to learn what the plaintiff’s response to the surveillance will be, which provides the plaintiff with the opportunity to ambush the defence with an unexpected explanation.

[1] It therefore seems that this holding was obiter, albeit obiter of high authority.

[2] (1985), 6 C.P.C. (2d) 318, [1995] O.J. No. 1317 (Ont. H.C.J.)

[3] (2006), 34 C.C.L.I. (4th) 249 (Ont. S.C.)

[4] As was held by the Court of Appeal recently: “It is a principle of statutory interpretation that every word that is used in a statute is to be given meaning and that “when a court considers the grammatical and ordinary sense of a provision, that ‘[t]he legislator does not speak in vain’”: Young Men’s Christian Association of Greater Toronto v. Municipal Property Assessment Corporation, 2015 ONCA 130, at para. 14, citing Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, at para. 37.  See also Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012): “If possible, every word and every provision [of an enactment] is to be given effect…. None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.”

[5] 2012 ONSC 4855

[6] Waxman v. Waxman, [1990] O.J. No. 871, 42 C.P.C. (2d) 296.

[7] For example: Segnitz v. Royal & SunAlliance Insurance Co. of Canada [2003] O.J. No. 78, 29 C.P.C. (5th) 359, related decision at 2004 CanLII 34357 (ON SC); Lin (Litigation Guardian of) v Belair 2009 CarswellOnt 8215; Apotex Inc. v. Richter Gedeon Vegyeszeti Gyar 2010 ONSC 4070.

[8] Master Sandler did allow for the possibility that listing categories of documents is sometimes appropriate.  He said: “Everything depends on the circumstances, and sometimes, the use of categories for certain types of documents might be appropriate, so long as such use is not a stratagem to avoid revealing documents that ought to be revealed.”

[9] At least this is the usual practice in the insurance and personal injury bar in Central East Region.