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Surveillance and Its Use in Court

Are You Being Watched by the Defendant’s Insurer?

Surveillance and its Uses at Court

 As stated in the Supreme Court of Canada:

 “The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed”. See R v. Nikolowski [1996] (S.C.J. Number 122).

 If a Plaintiff advances evidence that they cannot participate or do certain activities which are ultimately observed on surveillance cameras, this can dramatically and irrevocably affect the judgement of either a Judge or Jury as to the credibility of any such Plaintiff. It is therefore absolutely imperative  that you as a Plaintiff be absolutely honest in describing your injuries or disabilities. Video surveillance can be used to impeach your credibility and to show to the Court that you are far more capable than you are representing. Defendants through their counsel can use surveillance if they comply with the Rules of Civil Procedure and more particularly Rule 30.03(1) and Rule 31.06.

The net effective result of these Rules is that the insurer’s counsel must list in their Affidavit of Documents and disclose surveillance or they may not be able to use it at Trial. However, a Trial Judge still has the ability to grant leave to use the surveillance at Trial. R.30 provides that surveillance may be used to impeach a witness’ evidence even if the report is privileged or not disclosed prior to Trial.

A variety of recent Court of Appeal Decisions has confirmed the above noted principles. Ianarello vs Corbett, Taylor vs Dourke and Ismail vs Fleming. Generally these cases confirm a Trial Judge’s duty to observe the video on a voir dire. On the voir dire the Judge must determine whether the probative value of the surveillance outweighs any prejudicial effect.

 

Conclusion

Above all when participating in a Personal Injury Lawsuit it is critical that Plaintiffs accurately and fairly describe their physical capabilities and conditions in the Court process (at Discovery and Trial).

You should also be aware that your activities on Facebook and other social media outlets will be monitored by Defendant Insurers.    Therefore, before posting activities on social media you should consult with counsel.