In the June 24, 2013 decision of Arsenault-Armstrong v Burke, Mr. Justice Hambly of the Ontario Superior Court ruled on the obligation of a defendant to produce surveillance evidence. The defendant conducted surveillance of the plaintiff and agreed to provide the date of the surveillance report, the dates of the surveillance, the name of the investigator, the number of pages in the report, the number of photographs and minutes of video taken. However, the defendant refused to provide particulars of the actual surveillance if the defendant did not intend to rely on the surveillance at trial. The plaintiff brought a Motion for an Order requiring the defendant to produce the particulars of the observations.
Justice Hambly summarized the previous law on disclosure of surveillance:
- If a defendant intends to rely on the surveillance as substantive evidence at trial, the defendant must produce the surveillance report including a video tape.
- If a defendant intends to rely upon the surveillance evidence only for impeachment purposes, the defendant must still produce full particulars of the surveillance although the defendant need not produce the actual report or a video tape.
Justice Hambly ruled that a defendant must produce the particulars of surveillance evidence even if the defendant does not intend to rely on it. The rationale was that the surveillance evidence would assist a plaintiff in evaluating the strength of their case and arriving at a settlement position prior to trial. The Court emphasized that the discovery rules must be interpreted in a manner that discourages tactics and encourages full and timely disclosure.
Justice Hambly's decision reflects the judiciary's desire for full disclosure for a trial in an effort to encourage parties to settle their cases to avoid against potential disastrous cost consequences subsequent to a trial. However, one queries whether there was an unfair tactical advantage in not disclosing the particulars of surveillance that the defendant did not intend to rely upon at trial.
If a defendant intends to rely on surveillance as substantive evidence at trial, it must be fully disclosed in advance of trial. If the defendant intends to rely on the surveillance for the purposes of impeachment only, particulars must be disclosed in advance of trial. It is not surprising that once the plaintiff becomes aware of such evidence, it would assist any plaintiff in evaluating the strength of their case and arriving at a settlement position prior to trial.
If a defendant elects not to rely on surveillance evidence, one would presume the surveillance evidence is not of assistance to the defendant's case. Presumably, that would bolster the plaintiff's position about the strength of their case. A plaintiff may under those circumstances call the defence investigator to disclose the particulars of the surveillance to the Court in support of the plaintiff's position.