Hide & Seek: When Surveillance Video Must be Disclosed

Paralegal Karen Fair summarizes a case that examines the issue of surveillance video disclosure.

In Arsenault-Armstrong v. Burke et al, 2013 ONSC 4353, the plaintiff in a personal injury case brought a motion for an order to compel the defendant to produce information on observations made during surveillance of the plaintiff.

Justice P.B. Hambly found that the defendant must provide the particulars of the surveillance even if the defendant does not intend to rely on it at trial. Justice Hambly determined that “[i]f the defendant intends to rely on the surveillance as substantive evidence at trial it must produce the surveillance report including a video tape pursuant to Rule 30.09.”

However, if the defendant intends to rely on the surveillance for impeachment purposes, the defendant is required to provide the full particulars of the surveillance. A report or video recording is not required. This position is supported in the Beland decision where Justice Howden did not allow the defendant to attempt to impeach the plaintiff with the surveillance evidence if the defendant had not disclosed the evidence to the plaintiff.

    Informs the Plaintiff

In addition to the defendant relying on the surveillance evidence at trial, Justice Hambly found that the disclosure has other purposes.

The surveillance evidence will assist the plaintiff in evaluating the strength of her case and arriving at her settlement position prior to trial. Even if the defendant will not be able to use the surveillance evidence for impeachment purposes, as a result of its non-disclosure, the defence will gain knowledge of the plaintiff from the surveillance evidence which will be able to use to its benefit. A requirement that the defence produce it even if it does not presently intend to use at trial is consistent with what the Court of Appeal said in Ceci v. Bonk (1992), 7 O.R. (3d) 381.

Justice Hambly reasoned that if the surveillance particulars are disclosed to the plaintiff, she can evaluate her case and perhaps avoid unnecessary costs.

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