Lis v. Lombard Insurance illustrates a common difficulty with surveillance videotape. Under Rule 30.09 of the Rules of Civil Procedure, a “document” (which would include a videotape) on which privilege has been claimed, cannot be used at trial without leave of the trial judge unless the privilege is waived at least 90 days before the commencement of trial. The sole exception is if the “document” is used to impeach the credibility of a witness.
So, defence counsel armed with surveillance has two options. If privilege is waived on the tape and accompanying reports more than 90 days before trial, the surveillance can be used as substantive evidence, to show the plaintiff’s physical capability, daily activities, etc. (assuming that these are relevant issues). However, the defendant loses any element of surprise because the plaintiff will have seen the videotape prior to testifying at trial.
If the plaintiff has been examined for discovery and has been committed unambiguously to statements from which it would be difficult to resile at trial, the loss of the “ambush” factor might not be too important. The point is that once the privilege has been waived, defence counsel is no longer limited to using the surveillance for impeachment only.
The second possible approach is what was done in the Lis case: maintain the claim of privilege on the surveillance and attempt to introduce it as evidence under the “impeachment” exception in Rule 30.09. This is often risky, because one never knows until the trial whether the court will conclude that the surveillance can properly be used to impeach the trial testimony. In large measure, the answer to this question will depend on the plaintiff’s testimony on discovery and at trial. What is imperative for purposes of admissibility, is that the surveillance video contradict that testimony, in some substantial way.
Lis v. Lombard was an MVA case in which liability had been admitted. The nature and extent of the plaintiff’s injuries was in dispute. Counsel for Lombard sought to introduce surveillance of the plaintiff, conducted on seven different days. The purpose of the evidence was to impeach the plaintiff’s testimony on four specific points.
Mr. Justice Allan Bryant of the Ontario Superior Court, refused to allow the surveillance to be shown to the jury. His analysis is instructive for defence counsel. (Before he was appointed, Justice Bryant was a professor at the University of Western Ontario law school. He also happens to be the co-author of the leading Canadian text on the law of evidence.) Justice Bryant viewed the surveillance several times himself. He considered the four impeachment points that Lombard’s counsel was trying to establish and concluded that the surveillance was not sufficiently contradictory of the plaintiff’s evidence to allow it to be shown to the jury.
For example, the plaintiff had told one of the doctors who had examined her, that she avoided wearing higher-heeled shoes. The video showed her wearing a shoe with what was described as a “raised heel”. Justice Bryant had this to say:
[24] I viewed the videotape in chambers prior to the commencement of the voir dire with the consent of counsel. I viewed it on two more occasions during the voir dire. I focused my attention on the plaintiff’s footwear on the third review. The plaintiff’s footwear was not a stiletto-heeled shoe or a women’s high-heeled dress shoe. The heel was neither narrow nor thin but was a block type heel of considerable girth. It was not possible to determine the exact type of footwear Mrs. Lis was wearing.
[25] The plaintiff did not tell Dr. Hanick that she ‘never wore shoes with heels’ or she ‘could not wear shoes with heels’ or that she ‘only wore flat-soled shoes without heels.’ The plaintiff said that she “avoids” wearing “higher-heeled” shoes. She was not cross-examined as to what she meant when she told the psychiatrist that she avoided wearing “high-heeled” shoes or the type of shoes she wore when she shopped.
His Honour’s analysis was to similar effect in relation to the other three areas in which Lombard sought to impeach the plaintiff: he felt that no contradiction had been established and therefore, the jury should not view the tape. Had Lombard waived privilege on the surveillance more than 90 days before trial, it could probably have used the tape, albeit without the element of surprise. Whether or not to gamble on being able to use the video to impeach is the strategic decision that must be made in each such case.
One way to minimize this risk is through detailed examination for discovery. If the plaintiff can be committed to specific testimony about his or her activities or physical capabilities and if this evidence is contradicted by surveillance footage, counsel will know, going into the trial, that there is a contradiction that can be exploited. The trick then becomes, how to take advantage of the discovery evidence. Only if the contradiction emerges at the trial can the surveillance evidence be used to impeach. So, if the video contradicts the discovery testimony, there are three possible outcomes at trial:
- the plaintiff’s trial evidence is to the same effect as his/her discovery evidence. This would mean that the video also contradicts the trial testimony, allowing defence counsel to use it to impeach;
- the plaintiff’s trial evidence differs from his/her discovery evidence, but is more favourable to the defence. In that event, defence counsel might elect not to use the video, rather than undermining the favourable evidence.
- the plaintiff’s trial evidence differs from his/her discovery evidence and is less favourable to the defence. This would probably mean that the contradiction between the video and the oral testimony has become even more pronounced than at the discovery stage. The surveillance will probably be even more useful to impeach.
But all of these possibilities are only opened up by a comprehensive examination for discovery that, combined with the surveillance, gives defence counsel a contradiction to take into the courtroom. (Whether the examination for discovery should precede the surveillance or the other way around is a subject for another post…)