



COURT OF APPEAL FOR ONTARIO

CITATION: Iannarella v. Corbett, 2015 ONCA
    110

DATE: 20150217

DOCKET: C55414

Laskin, Lauwers and Hourigan JJ.A.

BETWEEN

Andrea Iannarella and Giuseppina Iannarella

Plaintiffs (Appellants)

and

Stephen
    L. Corbett and St. Lawrence Cement Inc.

Defendants (Respondents)

David A. Zuber and Joseph Villeneuve, for the appellants

Martin P. Forget, for the respondents

Heard: June 26, 2014

On appeal from the judgment of Justice J. Patrick Moore of
    the Superior Court of Justice, sitting with a jury, dated April 11, 2012, with
    reasons on the threshold motion reported at 2012 ONSC 2253, and on the costs order,
    dated November 19, 2012, reported at 2012 ONSC 6536.

Lauwers J.A.:

[1]

The appellant Andrea Iannarella was rear-ended
    by the respondent Stephen Corbett. He and his wife, Giuseppina, sued for
    damages for his personal injuries. The jury found Mr. Corbett had not been
    driving negligently and the action was dismissed on liability grounds. Had
    liability been established, the jury would have awarded general damages of
    $32,000 and $40,571 as damages for past income loss, but would not have awarded
    damages for future income loss. The trial judge dismissed Mr. Iannarellas
    claim for non-pecuniary damages on the basis that the statutory threshold for
    this type of recovery under s. 267.5 of the
Insurance Act
, R.S.O. 1990
    c. I.8, was not met. He awarded the respondents costs of about $255,000 for a fifteen-day
    trial that extended over four weeks.

[2]

For the reasons set out below,
I would
set aside the judgment and substitute a finding of liability against
    the respondents. In relation to damages, a series of rulings resulted in a
    trial by ambush, contrary to the letter and the spirit of the
Rules of Civil Procedure
. I would order
    a new trial on the issues of damages
.

A.

Factual Background

[3]

The accident happened on a snowy February
    evening. It was stop and go traffic on Highway 427. Mr. Iannarella testified
    that it was starting to get dark, there was some snowfall, and wetness could
    have made the roads slippery. He testified that although it was stop and go
    traffic, he was able to slow and stop his pick-up truck before he was struck
    from behind.

[4]

Mr. Corbett testified that he was driving behind
    Mr. Iannarella in his concrete mixer (which weighed about 12 tonnes empty) in
    low gear, and that [i]t was snowy, dark and the roads were icy. Visibility
    was in and out and there were little whiteouts in bumper to bumper
    traffic. He was accelerating and was about to shift into second gear when a
    snowsquall, which he described as a whiteout, suddenly reduced his visibility
    to zero. He testified that at that point he had only two options: to brake or
    to keep going. After a delay of one-and-a-half seconds, he slammed on his
    brakes fairly hard. Despite traveling at an initial speed of at most eight kilometers
    per hour, his vehicle did not stop before sliding into the rear of Mr.
    Iannarellas pick-up truck. Mr. Corbett was adamant that there was nothing
    further he could have done to avoid the collision and repeatedly said that the
    accident was caused by mother nature. He told Mr. Iannarella at the scene:
    Sorry, but I dont control mother nature.

[5]

Mr. Iannarella claimed he suffered a rotator
    cuff injury to his left shoulder in the accident. He has since had two
    surgeries to his left rotator cuff. He also claimed to have developed chronic
    pain, which made him unable to return to any form of employment.

B.

The Issues

[6]

The appellants assert that the trial judge erred
    in explaining the liability onus to the jury; in permitting the respondents to
use
    surveillance evidence;
in permitting expert reports to be
    projected on a screen before the jury during Mr. Iannarellas
    cross-examination; in analyzing the statutory threshold for general damages
    under the
Insurance Act
; and in his costs award.

C.

Analysis

(1)

The Liability Onus Issue

[7]

The appellants argue that the trial judge
erred in instructing
    the jury on the onus of proof applicable to rear-end motor vehicle collisions. They
    ask this court to grant them judgment on this issue and to substitute a finding
    of liability. I consider the law on the onus of proof, the trial judges
    treatment of the onus, and the jury charge on liability.

(a)

The Law on the Onus of Proof

[8]

In charging a jury regarding the onus of proof for rear-end motor
    vehicle collisions,
trial judges often use a variation of the
    standard liability instruction from OBriens Jury Charges (1998), which
    provides:

A prudent motorist should drive at such rate of speed with his
    vehicle under such control that he is able to pull up within the range of his
    vision. If there is any difficulty in seeing because of weather conditions,
    then common sense dictates that he should travel more slowly. In other words,
    "if you can't see where you're going don't go". If the road is icy or
    slippery, then even more care should be taken. In a case where a vehicle is
    struck without the driver of the rear vehicle having seen it until it was too
    late to avoid a collision, then you should ask yourselves; (1) Was he keeping a
    proper lookout? (2) If he was keeping the best lookout possible, was he going
    too fast for the lookout that could be kept in the circumstances?"

Members of the jury, generally speaking, when
    one car runs into another from behind, in the absence of any excuse for such a
    collision, the driver of the rear car must satisfy you that the collision did
    not occur as a result of his negligence.

[9]

This jury instruction places the onus on the
    defendant to prove that he could not have avoided the accident by the exercise
    of reasonable care. As the annotation to the standard jury charge observes, a
    driver must stay a safe distance behind the vehicle ahead, keep a lookout and
    maintain a reasonable speed, so that he or she has sufficient time to stop if
    the vehicle ahead suddenly stops. These requirements reflect long-established
    basic principles: see
Toronto v. Waite
, [1954] O.J. No. 404 (H.C.J.);
Whiddon
    v. Wickstrom
, [1948] O.J. No. 76 (C.A.);
DeCourcey v.

London
    Street Railway
, [1932] O.R. 226 (C.A.).

[10]

In
Beaumont v. Ruddy
, [1932] O.R. 441
    (C.A.), at p. 442, this court explained the onus applicable to rear-end motor
    vehicle collisions: Generally speaking, when one car runs into another from
    behind, the fault is in the driving of the rear car, and the driver of the rear
    car must satisfy the court that the collision did not occur as a result of his
    negligence.

[11]

This principle was confirmed
in
Graham v. Hodgkinson
(1983), 40 O.R.
    (2d) 697 (C.A.), where the plaintiff was rear-ended by the defendant. This
    court set aside the jury verdict and substituted a finding of liability where
    the jury was not properly instructed about the defendants onus. The court
    held:

A defendant thus may be called upon to establish that he could
    not have avoided the accident by the exercise of reasonable care in certain
    situations, for example, where he collides with the plaintiff's car on the
    plaintiff's side of the highway or where, as in this case, he runs into the
    rear of the plaintiff's car. (Para. 22)

[12]

In
Graham
,

the court relied on the
    British Columbia Court of Appeals analysis in
Hackman v. Vecchio
, (1969),
    4 D.L.R. (3d) 444 (B.C. C.A.). At para. 11 of
Hackman
, the court observed
    that in icy conditions the defendant is obliged to show that he did not expect
    ice at that point, and that he had no reason to expect it, for if he ought to
    have foreseen it, he was bound to drive slowly enough to avoid skidding upon
    it. The appellants rely especially on the British Columbia Court of Appeals conclusion,
    at para. 13, that [o]n the respondent's own evidence it was impossible for a
    jury to come reasonably to the conclusion that he was taken by surprise by ice
    at the point where he skidded, because he speaks of the road throughout being
    slippery and icy.

[13]

This court recently addressed the onus issue in
Martin-Vandenhende
    v. Myslik
, 2012 ONCA 53. Justice Blair noted, at para. 31, that the common
    law principle from
Beaumont

does not automatically lead to
    liability for the driver who is following behind. Instead, [i]t simply states
    that
generally
speaking
this will be the case, and shifts the
    onus to the following driver to show otherwise.

(b)

The Trial Judges Treatment of the
    Onus

[14]

In a rear-end motor vehicle collision, such as
    the one at issue in this case, the onus is on the defendant to prove that he or
    she could not have avoided the accident through the exercise of reasonable care.
    This led the appellants trial counsel to move for a directed verdict on
    liability, which the trial judge refused. In argument on the motion, the
    appellants trial counsel argued that the onus was on the respondents to prove the
    collision was an inevitable accident. Mr. Forget, counsel for the respondents, correctly
    pointed out that the expression inevitable accident simply denotes a defendants
    lack of negligence. This understanding flows directly from this courts
    discussion in
Graham
, and the onus of establishing the absence of
    negligence remains on the defendant.

[15]

However, the trial judge took a different tack,
    stating that the defence applicable in this case was not one of inevitable
    accident. Instead, he characterized the accident at issue as nearer an
    emergent situation than an inevitable accident situation. He went on to explain
    his position in his ruling:

In the case of an inevitable accident, clearly the onus is on
    the defendant to establish on credible evidence the inevitability. In an
    emergency situation,
the onus is on the plaintiff to establish the emergency
    and to establish that theres no negligence on the part of the defendant
    leading to the emergency
, or until the emergency occurs. Then the law
    changes and the defendant is burdened not with perfection but with doing the
    best that a reasonable operator of a motor vehicle could be expected to do in
    the emergent situation. Thats different from inevitable accident, but it still
    puts a burden onto the defendant to put before the jury sufficient facts to
    establish that the emergency situation was not of his making and that he could
    not have avoided it and thats where the argument is going to fall. [Emphasis
    added.]

The trial judge appears to have misspoken
    when he used the underlined words.

(c)

The Jury Charge on Liability

[16]

The jury charge relating to negligence and
    liability extended over 13 transcript pages. The trial judge told the jury that
    the plaintiff has the burden of establishing on a balance of probabilities all
    of the facts necessary to prove the following issues, that he was injured and
    that the negligence of the defendant driver was the effective cause of his injuries.
    He pointed to the burden on the appellants multiple times. He also explained
    the law concerning an emergency situation in a manner consistent with his
    ruling on the directed verdict, summarized in the preceding paragraph. The
    trial judge referred to the section of the
Highway Traffic
Act
,
    R.S.O. 1990, c. H.8, that prohibits following too closely. He then reviewed the
    evidence of Mr. Iannarella and Mr. Corbett.

[17]

The trial judge concluded the jury charge on liability
    with the following words:

Remember this caveat, however, as you consider the evidence of
    Mr. Corbett.
The onus of establishing an emergency situation, and in
    measuring his conduct within it, isnt onus upon the defendant.
[Emphasis
    added.]

These words echo those he used in refusing
    to direct the liability verdict.

(d)

Disposition of the Liability Issue

[18]

There was, in my view, no good reason for the
    trial judge to have departed from the principle expressed in the standard jury
    charge, which is consistent with the established jurisprudence. To repeat, the
    standard charge provides:

Members of the jury, generally speaking, when one car runs into
    another from behind, in the absence of any excuse for such a collision, the
    driver of the rear car must satisfy you that the collision did not occur as a
    result of his negligence.

[19]

I would make one minor change to the wording of
    the standard charge: the phrase in the absence of any excuse for such a
    collision should be deleted. In my view, the driver of the rear vehicle might
    well have an excuse for the collision that satisfies the jury that the accident
    did not occur as a result of his or her negligence. Nonetheless, the duty to
    provide that explanation rests on the defendant, not the plaintiff. To put it
    differently, once the plaintiff has proven that a rear-end collision occurred,
    the evidentiary burden shifts from the plaintiff to the defendant, who must then
    show that he or she was not negligent. This analysis would apply even where an
    emergency situation is alleged, as in this case.

[20]

The trial judge did not provide an instruction
    resembling the standard instruction and did not advert to the shift in onus in
    his jury charge. Instead, he emphasized throughout the charge that the onus was
    on the appellants. With respect, the trial judges statement that [t]he onus
    of establishing an emergency situation, and in measuring his conduct within it,
    isnt onus upon the defendant, is simply incorrect.

[21]

The respondents point out that trial counsel for
    the appellants did not object to this element of the charge at trial and submit
    that the appeal on this issue should be dismissed on this basis. They point to
    the following comment by
Finlayson J.A. in
G.K v. D.K

(1999),

38 C.P.C. (4th) 83 (C.A.), at
    para. 15:

[I]n civil
    cases, failure to object  is usually fatal.

[22]

I would not give effect to this submission. Trial counsel made his
    position on the onus plain to the trial judge in the motion for a directed
    verdict, but the trial judge promptly rejected it. It was unnecessary for counsel
    to record an additional objection on the same basis. Where there is an error of
    law on the onus of proof, the failure to object has no relevance.

[23]

The respondents also assert that a new trial on this issue should
    not be ordered unless the interests of justice plainly require that to be done,
    in the words of this court in
Brochu v. Pond
(2002), 62 O.R. (3d) 722 (C.A.), at para 68. Another way to express
    this test is in the terms of s. 134(6) of the
Courts of Justice Act
,
    that the appellant must show that a substantial wrong or miscarriage of
    justice has occurred. (
Vokes Estate v. Palmer
, 2012 ONCA 510, at para. 7) The respondents argue that the test is
    not met since the jury
clearly accepted that Mr.
    Corbett had no choice but to apply the brakes, and therefore would have found
    that Mr. Corbett had not acted negligently regardless of the onus
.

[24]

I would not give effect to this submission. The respondents
    had ample opportunity at trial to put forward their best foot on the liability
    issue.
In my view, the respondents explanation falls
    short of establishing that there was no negligence on Mr. Corbetts part. His
    evidence fails to prove that he could not have avoided the accident by the
    exercise of reasonable skill or care. The road and weather conditions at the
    time called for a higher level of vigilance by all drivers. Mr. Iannarella was
    able to stop his vehicle without incident, as were other drivers. Mr. Corbett
    was accelerating when he lost visibility, but rather than immediately braking
    gently, he hesitated; he then slammed on the brakes. He broke traction and slid
    into Mr. Iannarellas vehicle. Mr. Corbett was plainly going too fast for the
    weather and road conditions and could have avoided the collision accident by
    exercising sufficient care.

[25]

The choice is between a new trial on liability
    and finding the defendants liable. We are justified in finding the defendants
    liable because, even accepting Mr. Corbetts evidence, he failed to disprove
    his negligence.
Given the circumstances and the law
    applicable to rear-end motor vehicle collisions, a new trial on liability is unnecessary.
    I would adopt this courts approach in
Graham
,
set aside the jury verdict and
    substitute a finding of liability against the respondents.

(2)

The Surveillance Issues

[26]

The accident happened on February 19, 2008. In
    preparing the defence of this action, the respondents engaged investigators who
    shot many hours of video surveillance over
the
    following time periods: November 20, 2009; May 4, 2010; November 9, 10, 12,
    2011; March 3, 4, 6, 8, 10 and 18, 2012. This final date was the evening before
    the trial began. According to counsel, the
investigators
    shot about
130 hours of surveillance, all well after
    the accident.

[27]

During Mr. Iannarellas cross-examination, the
    respondents tendered a video disc of the surveillance that was about 27 minutes
    long. The trial judge permitted counsel to play the video, cross-examine Mr.
    Iannarella on its contents, and make the video an exhibit, even though
the respondents had not disclosed the existence of surveillance in an
    affidavit of documents as required by the
Rules
and had not provided
    particulars of it.

[28]

The saliency of the surveillance evidence is
    that the excerpts that were shown to the jury, and that were filed with this
    court, show Mr. Iannarella variously waving his left arm, carrying a
    garbage bag, driving and turning the steering wheel with his left hand,
    reaching with his left arm to the top shelf in a grocery store to retrieve an
    item, and driving on a 400 series highway. The respondents claimed at trial that
    these activities are inconsistent with Mr. Iannarellas self-reported limits
    on his functionality caused by the collision. As a result, they argued the
    surveillance showed that his evidence was not credible and could be used to
    impeach him.

[29]

The appellants argue that the trial judge erred:

(i) in
refusing
    their pre-trial request to order production of the respondents affidavit of
    documents, or, at least particulars of the surveillance that the respondents would
    have been required to provide in answer to the customary discovery question on
    surveillance;

(ii) in
    permitting the respondents to use the surveillance evidence despite their
    failure to disclose its existence in an affidavit of documents, contrary to rule
    30.08(1)(a) and in refusing to order the respondents to provide the appellants
    with unconditional access to the full surveillance recordings;
and

(iii)
in failing
    to instruct the jury on the proper use of the surveillance evidence in their
    deliberations.

[30]

The respondents maintain that the trial judges rulings
    were consistent with the law and with the
Rules
.

[31]

Mr. Forget asserts that his failure to serve the
    affidavit of documents was inadvertent, but in his argument at trial and in
    this court he did not hesitate to capitalize on that failure. He submits that the
    trial judge properly found that the respondents should be permitted to use the
    surveillance evidence at trial, despite their failure to disclose the existence
    of surveillance evidence..

[32]

Before considering the legal basis for each of
    the appellants complaints, I describe the usual way in which surveillance
    evidence is handled in civil personal injury actions.

(a)

Disclosure and Production Obligations under the
Rules

[33]

The
Rules
are designed to require full
    disclosure of information in order to to prevent surprise and trial by ambush.
    (John W. Morden & Paul M. Perell,
The

Law of Civil Procedure in
    Ontario
, 2nd ed.
(Markham:
    LexisNexis, 2014), at para. 7.9) Documentary disclosure and production
    obligations are laid out in rule 30.02, and each party
s
obligation to swear and serve an affidavit of documents is imposed
    by rule 30.03. For the purpose of the
Rules
, a video disc containing
    surveillance is a document (see rule 30.01(1)(a)).

[34]

Rule 30.08 prescribes consequences for failing
    to comply with disclosure obligations. Rule 30.08(1)(a) provides that: If the
    document is favourable to the partys case, the party may not use the document
    at trial, except with leave of the trial judge.

[35]

As noted, the respondents did not serve an
    affidavit of documents as required by the
Rules
and did not provide
    particulars of the surveillance, before or after the appellants set the matter
    down for trial. I acknowledge that trial counsel for the plaintiffs did not
    request an affidavit, but, unlike under the old
Rules of Practice
, a
    request is not required.

(i)

Disclosure Obligations for Privileged Documents

[36]

Rule 30.09 addresses the disclosure and production
    of privileged documents. It provides:

Where a party has claimed privilege in respect of a document
    and does not abandon the claim by giving notice in writing and providing a copy
    of the document or producing it for inspection at least 90 days before the
    commencement of the trial, the party may not use the document at the trial,
    except to impeach the testimony of a witness or with leave of the trial judge.

[37]

This court explained the tension between the
    objectives of discovery and litigation privilege in
General Accident
    Assurance Co. v. Chrusz

(1999), 45 O.R. (3d) 321 (C.A.), at para.
    25:

The modern trend is in the direction of complete discovery and
    there is no apparent reason to inhibit that trend so long as counsel is left
    with sufficient flexibility to adequately serve the litigation client. In
    effect, litigation privilege is the area of privacy left to a solicitor after
    the current demands of discoverability have been met. There is a tension
    between them to the extent that when discovery is widened, the reasonable
    requirements of counsel to conduct litigation must be recognized.

[38]

In
Ceci v. Bonk
(1992), 7 O.R. (3d)
    381, [1992] O.J. No. 380 (C.A.), at para. 9,

Carthy J.A. took the
    position that the exception in rule 30.09, which permits the limited use of a
    privileged document to impeach credibility despite its non-disclosure, recognizes
    that parties cannot anticipate everything that an opponent may say at trial and
    be expected to relinquish privilege and give notice of documents on the mere
    chance that they may be used to impeach. The suggestion that rule 30.09 encourages
    trial by ambush was dispelled, in his view, by the obligations to include any
    privileged document in the affidavit of documents and to provide particulars of
    its contents on discovery, and by limiting the use of the document at trial to
    impeachment purposes.

[39]

In
Landolfi v. Fargione
(2006), 79 O.R.
    (3d) 767 (C.A.), this court
explained the distinction,
referred to in rule 30.09,
between
the use of evidence to impeach a witnesss credibility and as
    substantive proof.
Justice Cronk held,
at paras. 73-74,
that
a party can use surveillance as substantive evidence only if privilege
    was waived and it has been properly disclosed, but is limited to using it for
    impeachment purposes if the claim of privilege is maintained, as counsel
    asserts the respondents did in this case. I note, however, that the respondents
    did not assert the claim for privilege in the affidavit of documents, as
    demanded by the Rules.

(ii)

The Disclosure of Video Surveillance

[40]

As noted in
Ceci
, privileged documents
    must be included in a partys affidavit of documents.

Under rule
    30.03(2)(b), video surveillance is typically identified in Schedule B to the
    affidavit of documents as a privileged document. The plaintiff then has the
    opportunity to seek full particulars of the surveillance from the defence at
    examination for discovery; the particulars of surveillance that must be
    disclosed on request include the date, time and location of the surveillance,
    as well as the nature and duration of the activities depicted and the names and
    addresses of the videographers (for example, see
Landolfi
, at para.
    22).

[41]

This practice of disclosing particulars is
    consistent with the Divisional Courts finding in
Murray v. Woodstock
    General Hospital Trust
(1988), 66 O.R. (2d) 129 (Div. Ct.), where the
    court held, at para. 13, that a person examined for discovery must comply
    with the plain meaning of the words in rule 31.06(1) and answer questions about
    the contents of the surveillance even though to do so would require the
    disclosure of information contained in a privileged document. While the surveillance
    films themselves remain privileged, the facts disclosed by the films do not. (
Machado
    v. Berlet
, (1986) 57 O.R. (2d) 207 (H.C.J.), at para. 6)

[42]

As Howden J. held in
Beland v. Hill
,
    2012 ONSC 4855, at para. 50, the discovery rules are to be read in a manner to
    discourage tactics and encourage full and timely disclosure in order to
    encourage early settlement and reduce court costs. See also
Ceci
, at
    para. 10, and
Arsenault-Armstrong v. Burke
, 2013 ONSC 4353
, at para. 11.


[43]

Justice Osborne explained that a partys
    obligation to disclose the contents of surveillance, even if it has no
    intention of relying on that evidence at trial, comes from a broad view of the
    undertaking given on discovery and  the requirement of full disclosure
    emerging from a libera[l] interpretation of the new Rules of Civil Procedure. (
Niederle
    v. Frederick Transport Ltd
.
, [1985] O.J. No. 1608 (H.C.J.),

at
    para. 17)

[44]

Pre-trial disclosure of surveillance in a
    personal injury action is particularly important since the impact of video
    evidence can be powerful. (
Landolfi
, at para. 52) Disclosure also
    provides the parties with the opportunity to carry out a realistic assessment
    of their positions and therefore facilitates settlement. Justice Hambly
    explained the important role of disclosure in
Arsenault-Armstrong
:

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 it will be able to use to its benefit. (Para. 11)

[45]

However, the surveillance evidence can only
    serve to encourage settlement if it is disclosed in the affidavit of documents
    and the opposing party has the opportunity to seek particulars at examination
    for discovery. Here, for example, the appellants did not accept a substantial
    settlement offer; perhaps they would have accepted it, thus avoiding a lengthy
    and costly trial, had the respondents properly disclosed their surveillance
    evidence.

[46]

Given the interests of fairness and the
    objectives of efficiency and settlement, the court expects the parties to
    comply fully and rigorously with the disclosure and production obligations
    under the
Rules
.

(b)

The Respondents did not meet their Surveillance Disclosure Obligations

[47]

The arguments over what the respondents disclosure
    and production obligations were, if any, and the consequences of
    non-disclosure, began at the trial management conference the week before trial
    and continued during the trial.

[48]

The appellants position evolved in response to
    the trial judges rulings. At the trial management conference, the appellants unsuccessfully
    sought an order requiring the respondents to produce an affidavit of documents
    and to disclose the particulars of the surveillance. At trial, the judge
    rejected the appellants argument that the surveillance evidence should be excluded
    under rules 30.08 and 30.09.

(i) The Obligation to Serve
    an Affidavit of Documents is Mandatory

[49]

The respondents position did not change
    throughout and was largely accepted by the trial judge. Counsel argued that the
    appellants 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. This argument was based
    on rule 48.04, which provides that once a matter is set down for trial no party
    may initiate or continue any motion or form of discovery without leave of the
    court. Counsel draws particular comfort from the following underlined
    sentences found at para. 75 of
Landolfi
:

The question before the trial judge concerned only the
    application of rule 30.09 and whether Fargione, in the circumstances, could
    invoke the impeachment exception in that rule. Any prospect of prejudice to
    Landolfi by Fargione's effort to do so at trial was avoidable through the
    pre-trial informational discovery provisions of the Rules.
On this record, it appears that Landolfi elected not to engage
    the benefit of these Rules. While this was his right, he could not thereafter
    seek to resist Fargione's use of the video evidence at trial for impeachment
    purposes on the ground of inadequate disclosure.
[Emphasis added.]

[50]

That comfort is misplaced. The issue for the
    court in
Landolfi
was whether the defendant should be obliged to
    produce all of the video surveillance for review by the plaintiff. This court
    ruled that full production was not required when the video was only to be used
    for impeachment. In making the emphasized comment, Cronk J.A. was hearkening
    back to her earlier statements at paras. 70-72 of
Landolfi
, where she
    noted that if the plaintiff was not content with the quality of the particulars
    already provided by the defence, he should have brought a motion for further
    and better particulars or for additional oral discovery before trial.

[51]

The radical difference between this case and
Landolfi
is that the defendant in
Landolfi
had provided extensive particulars
    of the surveillance to the plaintiff, including the date, time and place of the
    videos, as well as the nature and duration of the activities depicted. None of
    this information was provided to the appellants in this case, despite repeated
    requests by the appellants counsel, and it should have been.

[52]

The trial judges implicit reliance on rule
    48.04 as the authority for refusing to make the order requested by the appellants
    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. Further, rule 48.04(1) specifically provides that
    even after a matter is set down for trial, a party is not relieved from its
    obligation under rule 30.07 to disclose documents subsequently discovered or
    that were not previously disclosed in an affidavit of documents, although rule
    48.04 (2)(b)(ii) assumes that an affidavit had previously been delivered in
    compliance with the
Rules
.

[53]

I am alert to the Supreme Court of Canadas call
    for a civil litigation culture shift to make the conventional trial process more
    timely and affordable, and the waiver of a partys strict rights can play an
    important role in expediting cases. (
Hryniak v. Mauldin
, 2014 SCC 7, [2014]
    1 S.C.R. 87, at para. 2) I do not suggest that a party cannot waive discovery. Discovery
    is often waived in rear-end motor vehicle collisions because the defendants
    liability is not disputed; where damages are the real issue, the individual defendant
    typically has nothing to provide by way of evidence. I also do not suggest that
    the requirement for an affidavit of documents cannot be waived. There may be
    simple cases where that makes good economic sense. However, an effective waiver
    should be express, rather than implied solely from the fact that the matter was
    set down for trial, as appears to have happened in this case.

(ii) Subsequent
    Surveillance Must be Disclosed

[54]

As noted, it is clear that if surveillance
    occurs before the affidavit of documents is served, the surveillance report must
    be listed in the affidavit and requests for particulars must be answered at
    examination for discovery. In his helpful article titled Use of Surveillance
    at Trial (
Ontario Bar Association

Insurance Law Newsletter
,
    Vol. 18, No. 1 (2007)), Brian M. Bangay observed, at p. 2, that it appears
    well settled that a condition precedent to the use of surveillance material at
    trial is disclosure. However, the respondents dispute the application of these
    disclosure obligations to surveillance conducted after the affidavit of
    documents is served, particularly where, as here, no affidavit was served.

[55]

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 short, rule 30.07
    offers the respondents no escape route from the obligation to disclose the
    existence of surveillance. In my view, rules 30.03 and 30.07 apply even where,
    as here, the party fails to serve an affidavit of documents, despite the
    opening words of rule 30.07 that the rule applies [w]here a party, after
    serving an affidavit of documents, because the rule assumes that the party has
    complied with rule 30.03 and has served an affidavit. The court should not
    reward non-compliance.

[56]

Several cases support this result. In
Beland
,
    Howden J. relied on rule 30.07(b) to find at para. 49, that the conduct of
    subsequent surveillance rendered the existing affidavit of documents
    incomplete and inaccurate. He concluded 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.

[57]

Similarly, in
Cromb v. Bouwmeester
, 2014
    ONSC 5318, Chappel J. ordered the defendant to provide a sworn affidavit of
    documents  and attend at cross-examination on the affidavit if requested 
    disclosing the existence of subsequent surveillance. The defendant in that case
    had only provided a draft affidavit of documents. See also
Arsenault-Armstrong
.

[58]

In
Marchese v. Knowles
, [2009]
    O.J. No. 1159 (S.C.), Cavarzan J. wrote, at para. 28: [S]ervice of a
    supplementary affidavit of documents is required pursuant to subrule 30.07(b).
    Although the [surveillance] notes themselves need not be produced, the
    plaintiff is entitled to know particulars from those notes.

[59]

I reject the respondents argument to the
    contrary, in which they rely on
Jones v. Heidel
(1985),
6
    C.P.C. (2d) 318,
[1995] O.J. No. 1317
(Ont. H.C.J.),
and
MacDonald v. Standard Life Assurance Co
.

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

(iii)

The Right to Further Discovery

[60]

Rule 48.04(1) provides that a party who has set
    a matter down for trial shall not initiate or continue any motion or form of
    discovery without leave of the court. Rule 48.04(2) sets out some exceptions.
    One is rule 31.09, which provides that a party must correct an incorrect or incomplete
    answer given on discovery and can be subject to further examination for
    discovery on request by an adverse party. Another exception to rule 48.04 is rule
    30.07. It does not expressly provide for further examination for discovery.

[61]

However, as the case law demonstrates, and as
    practitioners well know, there are routes that an aggrieved party can take to
    obtain disclosure of relevant information when a supplementary affidavit is
    served, even after a matter is set down for trial. Motions are brought as a
    last resort against intransigence, and are frequently settled.

[62]

It may be appropriate for a court to grant leave
    for the adverse party to cross-examine on the newly disclosed information. The
    defendants in
Cromb
served a draft affidavit of documents and assured
    the plaintiffs a sworn version was forthcoming. No sworn affidavit of documents
    had been served by the time the matter was listed for trial. Justice Chappel found,
    at para. 22, that the plaintiffs motion to order the defendants to serve a
    sworn affidavit of documents did not fall squarely within the exceptions to
    the leave requirement set out in Rule 48.04(2)(b). She ordered the defendants
    to serve a sworn affidavit.

[63]

Justice Chappel concluded that leave to
    cross-examine the defendants on the affidavit of documents under rule 30.06 was
    necessary since this relief did not fall within any of the exceptions listed in
    rule 48.04(2). She stated that refusing leave would be manifestly unjust
    because the subsequent surveillance constituted a change in circumstances (paras.
    33, 38-39).

[64]

Quite apart from supportive case law, a
    requirement that parties re-attend at examination for discovery or submit to
    cross-examination to address a supplementary affidavit of documents is
    consistent with the underlying objectives of the discovery rules generally and of
    rule 30.07 in particular. To conclude otherwise would invite the type of
    tactics this court condemned in
Ceci
, at para 9:

[T]he discovery rules must be read in a manner to discourage
    tactics and encourage full and timely disclosure. Tactical manoeuvres lead to
    confrontation. Disclosure leads sensible people to assess their position in the
    litigation and to accommodate.

[65]

Had the affidavit of documents been served in
    this case, and the obligation to update the schedule of privileged documents
    been met by the respondents, these remedies would have been available to the
    appellants.

(iv)

The Trial Judge Ought to have Granted a Remedy

[66]

The respondents breached the following rules:
    rule 30.03(1) by failing to serve an affidavit of documents; rule 30.07(b) by
    failing to disclose surveillance conducted after the matter was set down for
    trial in an affidavit of documents; and, inferentially, rule 31.09 obliging the
    respondents to correct answers given on an undertaking ultimately leading to
    the provision of surveillance particulars.

[67]

In fashioning the appropriate response to the appellants
    request for the affidavit of documents, given the respondents clear breaches
    the trial judge ought to have considered how this case would have developed if
    the respondents had complied with the
Rules
.

[68]

The respondents would have served an affidavit
    of documents disclosing the existence of any surveillance, as well as a
    supplementary affidavit of documents listing any surveillance that was subsequently
    carried out. The inclusion of the surveillance report in Schedule B of the
    affidavit would likely have prompted the appellants to seek particulars on examination
    for discovery, instead of waiving this right. With the surveillance particulars
    in hand, the appellants would have been in a position to properly evaluate the
    settlement proffered by the respondents. The appellants might well have
    provided the particulars of the surveillance to experts for consideration in
    the formulation of their opinions. Had the matter still proceeded to trial, the
    appellants counsel would have been in a position to better plan Mr. Iannarellas
    examination-in-chief in order to address the surveillance evidence. The
    entirety of this important pre-trial process was effectively foregone.

[69]

The trial judge erred at the trial management
    conference. He ought to have ordered the respondents to serve an affidavit of
    documents disclosing the surveillance or at least to disclose such particulars as
    are ordinarily provided through a discovery undertaking. He should have offered
    the appellants an adjournment of the trial, and dealt with the issue of costs thrown
    away, since the appellants were not without fault. This would have permitted
    the appellants to access at least some of the advantages of disclosure. Even a
    relatively short adjournment to permit counsel to plan Mr. Iannarellas examination-in-chief
    in light of the surveillance particulars would have been appropriate, in the
    event that the appellants did not want a lengthy adjournment. None of this was offered.

[70]

Instead, the trial judge enabled what amounted
    to a trial by ambush, which is completely inappropriate under the
Rules
(see
Ceci
, at para. 10). 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 (not Mr. Zuber), 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.

(c)

The Use of Surveillance Evidence at Trial

[71]

The trial judges refusal to order disclosure of
    the surveillance evidence left the appellants scrambling from pillar to post
    trying to salvage something from the surveillance evidence debacle,
    unsuccessfully.

[72]

Respondents counsel raised the issue of the
    admissibility of the video surveillance for impeachment purposes
towards the end of Mr. Iannarellas testimony
. The appellants trial counsel, Mr. Villeneuve, objected to the
    introduction of the surveillance evidence since it had not been disclosed in an
    affidavit of documents. He invoked sub-rule 30.08(1)(a), which provides that if
    an undisclosed document is favourable to a partys case, the party may not use
    the document at trial, except with leave of the trial judge.

[73]

Mr. Villeneuve asserted that at the trial
    management conference the trial judge had assured him: [W]hile I would not be
    entitled to an affidavit of documents, my friend would not be able to rely upon
    the documents that would otherwise have been included in Schedule A and B. The
    trial judge responded that his comment had only been with respect to using the
    surveillance as part of the plaintiffs case, which I interpret to mean using
    the surveillance as substantive evidence of Mr. Iannarellas functionality.

[74]

The trial judge treated the trial objection as a
    continuation of the argument at the trial management conference to be governed
    by the same principles. The trial judge asserted that: Mr. Forget is
    right. He is not obliged to produce the surveillance when its proposed use at
    the trial is with relation to a credibility issue. The trial judge concluded,
    with respect to the appellants request to examine the entirety of the
    surveillance footage, that he was not going to order that anything be produced
    during the course of the trial.

[75]

T
he surveillance
    cross-examination occupied about 50 transcript pages in a cross-examination
    extending over five days and covering about 350 pages.


[76]

The objection to the introduction of the
    surveillance evidence, in the context, gave rise to three distinct issues. The
    first was whether the trial judge should have given the respondents leave under
    rule 30.08 to introduce the surveillance despite the lack of disclosure, even
    if it was only to be used for the purpose of impeachment. The second was
    whether the respondents had laid sufficient groundwork for the admission of the
    surveillance for impeachment purposes, as required by the rule in
Browne v.
    Dunn
. The third was whether the respondents impermissibly used the
    surveillance evidence for substantive purposes.

(i)

The Trial Judge Should
    not have Granted Leave to the Appellants to Use the Surveillance Evidence

[77]

The respondents asserted that they wanted to use
    the surveillance evidence to impeach Mr. Iannarellas credibility. This is
    permitted by rule 30.09, which, as noted, allows a privileged document to be
    used to impeach a witness. [w]here a party has claimed privilege in respect of
    a document. But rule 30.03 requires a partys assertion of privilege to be
    made in the affidavit of documents; this mechanism serves to link the rules,
    which work together to require adequate disclosure. The link was severed in
    this case, to the appellants prejudice.

[78]

As noted, rule 30.08(1)(a) provides that if an undisclosed
    document is favourable to the partys case, the party may not use the document
    at the trial, except with leave of the trial judge. Rule 31.09(3) applies the
    same penalty for failure to update an inaccurate or incomplete answer given on
    discovery. These rules apply even if the undisclosed evidence will be used
    solely for impeachment. (
Beland
, at paras. 39-40)

[79]

Although both rules expose the non-compliant
    party to the risk of evidence being excluded at trial, rule 53.08 mitigates that
    risk somewhat. Rule 53.08 applies to rule 38.08(1) and rule 31.09(3), and
    provides that leave shall be granted on such terms as are just and with an
    adjournment if necessary, unless to do so will cause prejudice to the opposite
    party or will cause undue delay in the conduct of the trial.

[80]

In
Marchand (Litigation guardian of) v.
    Public General Hospital Society of Chatham
, (2000), 51 O.R. (3d) 97
    (C.A.), at para. 81, this court held that under rule 53.08: a trial judge must
    grant leave unless to do so would cause prejudice that could not be overcome by
    an adjournment or costs. This mandatory orientation is understandable, since
    relevant evidence, including surveillance, is ordinarily admissible. (
Landolfi
,
    at para. 52)

[81]

The respondents assert that the ordinary
    approach should apply, that their assertion of privilege should be given effect
    even though they failed to serve an affidavit of documents in which the claim
    of privilege is to be made, and that they should be permitted to cross-examine
    Mr. Iannarella to impeach his credibility. I disagree.

[82]

While it was open to the trial judge under rule 53.08
    to admit the surveillance evidence, despite the lack of disclosure, or to
    exclude it, upon due consideration of the test under the rule, he ought to have
    found that the assertion of privilege had not been properly made, to the
    appellants prejudice. Further, the trial judge did not advert to rule 53.08 or
    its accompanying test. Had he done so, it would have been apparent that the
    appellants had already suffered significant prejudice.

[83]

At the point in this jury trial where the issue
    of the admissibility of the surveillance arose, the main benefits that the appellants
    might have obtained through timely disclosure of the surveillance particulars
    were gone. The appellants did not have the benefit of considering the
    surveillance in assessing the possibility of pre-trial settlement, and their
    counsel had little time to prepare an appropriate examination in chief of Mr
    Iannarella. The prejudice was baked in and the trial was well under way. In my
    view the application of the test for leave to introduce the surveillance should
    have led the trial judge to refuse its admission even for the purpose of
    impeachment.

[84]

Several cases support this outcome. As noted
    above, in
Beland
, Howden J. refused to admit the undisclosed surveillance
    for impeachment purposes.

[85]

In
Capela v. Rush
(2002), 59 O.R. (3d)
    299 (S.C.), the undisclosed evidence was presented to the jury before the
    potential violation of rule 31.09(3) could be addressed. Justice Sutherland explained
    the approach he would have taken had the plaintiffs had the opportunity to
    object:

In the circumstances an adjournment would have been allowed,
    the jury may have been struck and an opportunity for additional discovery ...
    may well have been allowed. None of that happened and the result was severely
    prejudicial to the plaintiffs. (Para. 68)

[86]

Justice Sutherland went on to note, at para 69,
    that had there been the proper disclosure of the information  it is highly
    probable that the action would have been settled before trial. Since the
    evidence at issue had effectively been admitted at the trial, he concluded that
    there should be cost consequences.

[87]

In
Burke v. Gauthier

(1987), 24
    C.P.C. (2d) 281 (H.C.J.), the plaintiff stated at examination for discovery that
    although his neck bothered him, he was still able to engage in recreational and
    sporting activities. At trial, he unexpectedly testified that his pain had
    increased to the point that he could no longer participate in any of these
    activities and had trouble lifting. Justice Campbell noted that rule 31.09(1) required
    the plaintiff to update his answers to the discovery questions about his pain
    levels and functional abilities. Because he failed to do so until the middle of
    trial, Campbell J. excluded the new evidence, explaining at paras. 24-25, that:

[T]he plaintiff decided to move ahead into the teeth of the
    rule without trying to do anything to overcome the obvious unfairness and
    prejudice to the defendants at being met in the middle of the trial for the
    first time with a new case.

[88]

Justice Campbell added, at para. 19, that the
    obligation to update discovery answers had the goals of creating some
    incentive to the plaintiff to disclose a change in the evidence, discouraging trial
    by ambush and promoting the objects of discovery which include the
    encouragement of settlement, the narrowing of issues, and the basic rule of
    fairness that a party should have reasonable knowledge of the case he must meet.
    As noted above, these goals and objects were defeated in the case at hand by
    the tactics of the respondents. The trial judge erred by not considering or
    recognizing how this prejudiced the appellants.

[89]

In
Smith v. Morelly
, 2011 ONSC 6834,
    the defendant sought leave under rule 30.09 to abridge the time for service of
    surveillance videos taken of the plaintiff so that the surveillance could be
    admitted at trial as substantive evidence. Alternatively, she sought to use the
    surveillance to impeach the plaintiffs testimony at trial. Justice Gilmore
    refused leave to use the surveillance as substantive evidence but permitted it
    to be used for impeachment. The plaintiffs in
Smith

had the
    opportunity to view the surveillance videos before they were used for
    impeachment. This was an important factor in Gilmore J.s conclusion, at para.
    30, that the prejudicial effect of the surveillance did not outweigh its
    probative value. Further, Gilmore J. offered the plaintiff an adjournment.
    Neither of these circumstances occurred in the case at hand.

[90]

In this case the trial judge erred by failing to
    advert to and apply the rule 53.08 test in its entirety. As a result, the
    conditions for admissibility under the rule were not satisfied and it was an
    error for the trial judge to have admitted the surveillance.

(ii)

The Surveillance Evidence was not Tested for Admissibility for Impeachment
    Purposes

[91]

Assuming that the surveillance had been
    otherwise admissible for impeachment purposes, the trial judge did not hold a
voir
    dire
on the fairness, representativeness and admissibility of the
    surveillance evidence, nor did he view the material before it was played for
    the jury and used in Mr. Iannarellas cross-examination. He did not require the
    respondents trial counsel to lay an adequate factual foundation that the
    surveillance evidence could be used to contradict. These were errors.

[92]

Trial judges recognize that surveillance
    evidence is powerful evidence, as Cronk J.A. acknowledged in
Landolfi
.
Mr. Forget submitted to this court in argument that the
    surveillance evidence was not that damning, and not great surveillance.
    However, in argument to the trial judge, he more candidly asserted that it was
    powerful evidence. The power of surveillance comes from its nature as real
    demonstrative evidence  evidence from which the trier of fact can draw factual
    conclusions, as John A. McLeish and Roger G. Oatley note in
The Oatley-McLeish Guide to Demonstrative Advocacy
(Markham: LexisNexis, 2011), at pp. 249-50.

[93]

The trial judges gatekeeper function respecting
    surveillance has two dimensions, both of which are to be carried out in the
    context of a
voir dire
,
    in the witnesss absence.

[94]

First, the trial judge must be satisfied that
    the video is a fair and accurate depiction. This has to do with technical
    details, such as distortion and image speed. The relevant information can be
    led through the evidence of the videographers during the
voir dire
, whom the defence should make
    available if necessary. Where only an excerpt of the surveillance is tendered, the
    trial judge must also be satisfied that it is fair, accurate and representative
    of the events that it purports to depict. See Michelle Fuerst & Mary Anne Sanderson,
Ontario Courtroom Procedure
, 3rd ed. (Markham: LexisNexis, 2012), at pp. 1043-1044. For
    example, careful editing might have trimmed the video just before or after the
    witnesss grimace. Often these issues are resolved between counsel, but where,
    as here, the appellants counsel had utterly no information, this task is
    especially important and should require the trial judge to review the surveillance
    footage from before and after the excerpted selection.

[95]

Second,
the court in
Landolfi
noted,
at para. 65, that the
    defence must lay an adequate factual foundation before surveillance can be
    admitted to impeach the witness testimony. This requirement flows from the
    rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.).

[96]


In his article
    on surveillance, Mr. Bangay described the typical set-up for the use of surveillance
    for impeachment, at p. 8:

The witness ought to be closely cross-examined on limitations,
    disabilities and restrictions all with a view to establishing contradictions
    between the testimony of the witness in the box and the material which the
    examiner knows is disclosed within the surveillance material. Preferably this
    cross-examination on minutae will be conducted in advance of the
voir
    dire
thereby enabling the examiner, in the course of the
voir dire
to point out inconsistencies which ought to be put to the witness.

[97]

In
Machado,
Ewaschuk J. noted that counsel
    for the defence must first elicit from the plaintiff the nature of his or her
    injury with sufficient precision. He found, at para. 13, that defence counsel
    breached, though not totally, the rule in
Browne v. Dunn
. Although
    counsel put the activities depicted in the videos to the plaintiff, he noted
    that this was done in a very generalized and superficial way. Justice Ewaschuk
    held, at para. 14, that it was at least incumbent ... to put to the witness
    the fact that films had been taken of the plaintiff and to have particularized
    the films contents so as to afford the plaintiff an opportunity to explain his
    conduct as it related to his injuries.

[98]

In
Lis v. Lombard Insurance C
o.
(2006), 39 C.C.L.I. (4th) 108 (S.C.), Bryant J. discussed the procedure for
    applying rule 30.09 to a specific case. He used the decision of Dawson J. in
Ferenczy
    v. MCI Medical Clinics
(2004), 70 O.R.
    (3d) 277 (S.C.),

as a relevant example. In
Ferenczy
,
    the plaintiff testified that she could not hold a cup in her left hand, but the
    surveillance clearly demonstrated that her claim was false. Justice Dawson
    permitted the surveillance evidence to be used to impeach the plaintiff in
    cross-examination.

[99]

Accordingly, Bryant J. held, at para. 15 of
Lis
,

that to be admissible: the probative value of the surveillance videotape
    must be such that it is capable of contradicting, challenging or impugning the
    witness testimony. In a
voir dire
, Bryant J. obliged the defendant to
    identify with specificity which inconsistencies or contradictions in the
    plaintiffs testimony the surveillance would be used to impeach. He then
    analyzed each alleged inconsistency and ultimately concluded that the surveillance
    video did not contradict the witnesss evidence. As a result, he refused to
    allow the videos to be played for the jury.

[100]

Defence counsel made strenuous efforts over many hours to get a
    categorical statement from Mr. Iannarella about the functionality of his left
    arm. He was not clearly successful, which meant that each portion of the video
    excerpts had to be individually assessed. But counsel did not elicit from Mr. Iannarella
    the precise testimony as to his functionality that each surveillance extract
    would contradict, nor did he put an explicit and detailed formulation of a
Browne
    v. Dunn
challenge to him in respect of each incident depicted in the
    surveillance. More importantly, the trial judge erred by failing to determine
    whether the surveillance was relevant to Mr. Iannarellas credibility before
    admitting it into evidence, through the detailed analysis similar to Bryant J.
    in
Lis
. Instead, the trial judge permitted defence counsel to simply
    play the surveillance footage. This was an inadequate foundation for
    impeachment under rule 30.09 and worked unfairly to the prejudice of the appellants.

(iii)

The Surveillance Evidence was Impermissibly Used for Substantive
    Purposes

[101]

The overarching issue the respondents sought to address through the
    surveillance evidence was the functionality of Mr. Iannarellas left arm. The
    indirect route would have been to use the surveillance as evidence to impeach
    Mr. Iannarellas assertions about his functionality. The direct route would
    have been to use it as substantive evidence of that functionality. However, that
    route was not open to the respondents because they did not comply with rule
    30.09.

[102]

Despite the trial judges ruling that the surveillance could only be
    used for impeachment purposes, three elements combined to effectively dissolve
    the distinction between impeachment and substantive evidence in the minds of
    the jury. The first was the evidence of the videographers, the second was the
    respondents jury address, and the third was the jury charge.

The Appellants were Trapped into Calling the Videographers

[103]

The appellants trial counsel expressed concern that there might be
    other surveillance evidence beyond what was shown to the jury that would assist
    their case. The trial judge noted that the appellants had the right to have the
    videographers attend to be cross-examined:

Mr. Villeneuve: Well, if the video is being
    shown, our position is the minute it goes on the screen, the entire video needs
    to be produced to the plaintiff and that witness needs to come for examination.

The Court: No. Youre almost right. The minute it goes on the
    screen, the
videographer will have to attend

if you request it
and withstand your cross-examination on  on his involvement in taking the
    video. If you are feeling bullish, you may even require him to show more video
    that Mr. Forget proposes to show. Thats an opportunity that you would

    that you would have and

a risk that may arise from it

of seeing
    even more that you want to or dont want to see, but if youre going to show
    the video in the circumstances of  of this case, then youre going to have the
    videographer available
. [Emphasis added.]

[104]

The trial judges approach trapped trial counsel into requiring the
    videographers to be called as witnesses to testify before the jury, rather than
    in a
voir
dire
, in order to get access to the full surveillance.

[105]

The examinations-in-chief of the videographers by respondents were largely
    perfunctory and technical, as one would expect. Counsel argued, however, that by
    requiring the videographers to testify, the appellants opened the door and he
    was then able to examine them on their observations of Mr. Iannarellas
    functionality. This led to the following exchange with one videographer:

Q: And when you were observing him pushing the cart, did you
    notice any disability?

A: From my experience, I have  I did notice any pain in his
    face. He wasnt holding any extremities. He seemed to be moving in fluid
    motions. (sic)

[106]

Counsel asserted in argument that the videographers live
    observations constituted proper substantive evidence of Mr. Iannarellas
    functionality. I disagree; the evidence was substantive and its introduction was
    not permissible under rule 30.09.

[107]

In my view, this evidence was improperly led. It amounted to
    cross-examination of a witness who was not adverse in interest. See Geoffrey
    D.E. Adair,
On Trial: Advocacy Skills Law and Practice

(Markham:
    LexisNexis, 2004), at pp. 212-213, and Alan W. Mewett & Peter J. Sankoff,
Witnesses
,
    loose-leaf (Toronto: Carswell, 1991), at pp. 14-30 to 14-31.

The Defence Jury Address made Substantive use of the
    Surveillance Evidence

[108]

Respondents counsel maintains that he tendered the video
    surveillance only to impeach Mr. Iannarellas credibility relating to his
    functionality, not as substantive evidence to demonstrate his actual
    functionality.

[109]

There is no doubt that counsel strongly and repeatedly challenged
    Mr. Iannarellas credibility, as he was entitled to do.
However, in his closing jury address counsel suggested the
    surveillance could be used as substantive evidence of Mr. Iannarellas
    functionality:

Weve seen the waving four times in the surveillance. Not only
    did we see the waving, we see Mr.  not quite clear on this shot  but we see
    Mr. Iannarella smiling and weve heard from the investigators who have
    testified as to taking that video not one sign of disability. My friends going
    to stand up theyre not kinesiologists, theyre not doctors, which is true and
    were not suggesting they are, not one sign of disability, not a grimace, not a
    restriction, nothing. And hes waving completely gratuitously, absolutely
    gratuitously.

[110]

This statement explicitly suggested to the jury that the surveillance
    evidence could be used as proof of the extent of Mr. Iannarellas disability.
    Counsels submissions effectively erased
any distinction between the use
    of the surveillance for impeachment and for substantive purposes.

There was no Limiting Instruction on the Surveillance
    Evidence in the Jury Charge

[111]

I
n
Landolfi
, at para. 61, Cronk J.A. held that the risk a
    jury might use surveillance evidence admitted under rule 30.09 as substantive
    evidence with respect to a plaintiffs disability could be adequately addressed
    through a limiting instruction in the jury charge.  However, in this case the
    trial judge did not mention the surveillance, nor did he provide a caution about
    how the jury could use the surveillance evidence.

[112]

A typical example of a limiting instruction follows:

You saw a video of surveillance conducted by the defence on the
    Plaintiff. I made an order that it was admissible and as a result you saw this
    video. I need to remind you however as to the use that you can make of what you
    saw on the video. It is not admissible as substantive evidence of the
    Plaintiffs physical capacities. It has a limited purpose. It is to be used by
    you, the judges of the facts, to assess the Plaintiffs credibility as to his physical
    limitations following the accident. To repeat, you cannot use what you saw on
    the video to determine his physical capacities. You can only use what you saw
    on the video for the purpose of determining credibility  specifically it is
    your role as the triers of the facts to determine if there are inconsistencies
    between what he said during his evidence and what you saw on the video.

[113]

The trial judges failure to provide a limiting instruction was an
    error since it increased the risk that the jury would use the surveillance as
    substantive evidence of
Mr. Iannarellas functionality.
    In cases like this one, where surveillance is used to impeach a witness on a
    point that is also an issue
requiring
substantive proof for the purpose of the underlying action, the
    need for an adequate caution in the jury charge is particularly significant. The
    absence of a limiting instruction left the jury free to use the surveillance
    evidence for substantive purposes, contrary to rule 30.09.

(iv)

Disposition of the Surveillance Evidence Issues

[114]

In my view, the improper use of the surveillance evidence gave rise
    to a form of trial by ambush. This came about because the trial judge did not
    require the defence to comply with the
Rules
in relation to the
    disclosure of the surveillance evidence and the provision of particulars. The
    trial judge did not exclude the surveillance evidence under rule 30.08, nor did
    he assess its relevance and require the respondents to comply strictly with the
    rule in
Browne v. Dunn
before admitting it. He did not provide the
    jury with any instructions concerning the permissible use of the surveillance
    despite the defences problematic jury address, nor did he provide the jury
    with a limiting instruction.

[115]

In my view, the surveillance evidence was effectively admitted into
    evidence and used by the jury for its substantive content, and not just for its
    impeachment value. The trial judges errors, especially when taken together,
    were serious and critically impaired the fairness of the trial. The damages verdict
    cannot stand. I would set it aside and order a new trial on damages.

[116]

In
Chrusz
, at
    para. 25, this court acknowledged that 
[t]he modern
    trend is in the direction of complete discovery and there is no apparent reason
    to inhibit that trend so long as counsel is left with sufficient flexibility to
    adequately serve the litigation client. It is time to harness the power of
    surveillance evidence in the service of the civil litigation culture shift
    towards early disclosure, accurate case evaluation based on the totality of the
    evidence, settlement where possible, and fair adjudicative processes based on
    full information, as
Hryniak v. Mauldin
proposes
.

(d)

The Use of Experts Reports in Mr. Iannarellas Cross-Examination

[117]

The appellants argue that the trial judge erred in permitting the
    respondents to project excerpts from medical reports on a screen in front of
    the jury during Mr. Iannarellas cross-examination.
Since there is to be
    a new trial, there may be no need to rule on this complaint, but the prospect
    that this form of cross-examination may be taking root requires a response.

(i)

Objections to Mr. Iannarellas Cross-Examination

[118]

During the course of Mr. Iannarellas cross-examination, Mr. Forget
    projected an excerpt from a medical report on a screen in front of the jury.
    The report had been provided by Dr. Soon-Shiong, an orthopedic surgeon, and was
    contained in Exhibit 1. Mr. Forget was about to ask questions about an excerpt
    from the report when Mr. Villeneuve objected on the basis that counsel had
    agreed that the medical brief in Exhibit 1 would not contain any medical
    reports. Regrettably, Mr. Villeneuve had not checked to make sure that the
    briefs contents reflected his discussion with Mr. Forget before consenting to
    the admission of the exhibit. The report was, as he put it, buried halfway
    through the brief. Mr. Forget did not contest Mr. Villeneuves version of
    their understanding. He stated that he intended to call Dr. Soon-Shiong as a
    witness.

[119]

In the course of his response to the objection, the trial judge
    noted that if the report stayed in the brief it would go into the jury room
    with the jury. The trial judge expressed concern about this, stating:

[I]t will be, if they choose to read it, read by the jury
    during the course of their deliberations and it is very clear in law that in
    jury cases, its very unusual putting it mildly, its beyond frowned upon by
    most judges in jury trials to allow a doctors report to be filed and the
    doctor to give evidence.

[120]

The trial judge then ruled that if Dr. Soon-Shiong was to be called
    as a witness, his report should not be in Exhibit 1. He was prepared to permit counsel
    to read from the factual portions of Dr. Soon-Shiongs report as a lead in to
    questions, but only the parts of the interchange between Dr. Soon-Shiong and Mr.
    Iannarella, and not the doctors opinion.

[121]

After the lunch break, counsel resumed cross-examining Mr.
    Iannarella and again projected Dr. Soon-Shiongs report. Mr. Villeneuve again objected
    that it was unfair for counsel to put only selected bits of Dr. Soon-Shiongs
    evidence to the witness. The trial judge allowed respondents counsel to continue.

[122]

Mr. Villeneuve later objected to the continuation of what he called
    the slide show on the basis that counsel was departing from the factual
    details in Dr. Soon-Shiongs report and venturing into the doctors
    examination and opinion. Counsel responded that the Exhibit containing the
    report had gone in on consent.

[123]

After more skirmishing, respondents counsel said that he would stop
    projecting the report. The trial judge concurred, and noted that it would be preferable
    not to project additional reports so that whatever is on the written page
    above and below the proposition that you are focusing on wont be apparent to
    the jury. He also noted that [t]he difficulty always is that when doctors
    attend and give evidence from their reports, almost always, the reports do not
    complete the entirety of their evidence. Counsel then proceeded in the
    conventional way asking questions about Mr. Iannarellas visit to the doctor
    without projecting the report excerpts.

[124]

Respondents counsel was about to project a report from a
    physiotherapist when Mr. Villeneuve again objected. The trial judge noted
    that a physiotherapist is not a doctor and that his direction not to project
    doctors reports did not apply to her. The physiotherapists report was
    projected before the jury. The trial judge noted that he would later decide
    whether the physiotherapists report would remain in Exhibit 1 and go to the
    jury room for deliberations. (I observe that reports from doctors and
    physiotherapists fall within s. 52 of the
Evidence Act
, R.S.O. 1990,
    c. E.23. This section addresses the proper procedure for filing medical reports
    as evidence, and applies to a member of a College as defined in subsection 1
    (1) of the
Regulated Health Professions Act, 1991
,

which
    includes the College of Physiotherapists of Ontario.)

(ii)

Analysis

[125]

The trial judge did not adequately perform his gatekeeping function
    in relation to this evidence. I agree with the appellants that the respondents
    should not have been permitted to use the projected excerpts from the expert
    reports, for the following reasons.

[126]

First, when the appellants raised an objection to the unexpected
    inclusion of medical reports in the brief, the trial judge did not address the
    problem immediately and effectively. Although he ruled that Dr. Soon-Shiongs
    report could not be an exhibit, he allowed the jury to see it on the projection
    screen. He also failed to rule conclusively on the physiotherapists report.

[127]

It is commonplace in civil actions for counsel to prepare a trial
    document brief containing documents that are admitted as authentic and
    admissible. See
John Sopinka,

The
    Trial of an Action
, 2nd ed. (Markham: LexisNexis, 1998) at pp. 41-42.
    Counsel typically agree on a list of documents and one party attends to the
    briefs preparation. In this case, Mr. Forgets office assembled the respondents
    medical brief, which he tendered at the beginning of the trial and which became
    Exhibit 1.

[128]

It is regrettably not unusual, however, for counsel to differ on the
    precise basis on which a document in the brief is being tendered or whether it
    was to have been included, as the implications materialize in the course of the
    trial. That happened here, where the appellants thought no medical reports were
    to be included in the brief, but the respondents included the reports. The trial
    judge should have addressed the problem quickly and completely. Instead, by permitting
    cross-examination to proceed with the reports projected for the jurys view, the
    trial judge exposed the appellants to the potential for the jury to be
    prejudiced by the disputed reports.

[129]

Second, the projected words would have distracted the jury when
    their attention should have been on the witness. It is to be expected that the
    projected words from a medical report would carry great weight with the jury,
    who would naturally see them as likely to be true.

[130]

Third, the cross-examination implicitly relied on the hearsay value
    of the reports before they had been properly admitted. Counsel presented the
    words as true. This allowed the respondents to attack Mr. Iannarellas
    credibility in a manner that side-stepped their obligation to comply with the rule
    in
Browne v. Dunn
. The impression on the jury could not likely be undone
    either by an effective cross-examination of the practitioner or by a jury
    instruction, both of which would occur much later in the trial.

[131]

Fourth, this approach allowed the respondents to get around the usual
    requirement that, absent special circumstances, parties must choose between
    filing a medical report as evidence under s. 52 of the
Evidence Act
,
    and calling the practitioner as a witness. See
Ferraro v. Lee
(1974), 2
    O.R. (2d) 417 (C.A.), at para. 6;
Pool v. Lehoux
, 2007 ONCA 630, at
    para. 7;

Beck v. Blane
, [1999] O.J. No. 529 (C.A.), at para. 4;
    Fuerst & Sanderson, at pp. 954-956, 958. The jury effectively heard from
    Dr. Soon-Shiong twice, without consideration as to how this could impact the
    appellants.

[132]

There are circumstances when the projection of an image in front of
    a jury during cross-examination is helpful, for example when the witness is
    being examined on a pictorial image like a map, a photograph or a diagram. However,
    reports from medical practitioners who will also be called to testify give rise
    to unique concerns. The trial judge recognized some of these issues, stating:

The difficulty always is that when doctors attend and give
    evidence from their reports, almost always, the reports do not comprise the
    entirety of their evidence as you know. There are speaking points. Some things
    that are in the report never make it into evidence so better not to show the
    members of the jury that which may not become the evidence of those doctors.

[133]

Nonetheless, the trial judge permitted a number of reports to be
    projected before the jury. Regardless of whether or not the reports were
    ultimately formally admitted as exhibits, the slide show had already
    permitted the jury to view some of their contents. This could not be undone. As
    this court noted in
Pool v. Lehoux
, at para. 7,

there can be no
    hard and fast rule. However, the respondents use of medical and other report
    excerpts in cross-examining Mr. Iannarella in this trial should not have
    been permitted by the trial judge.

(3)

The Threshold Motion

[134]

Based on the entirety of the evidence at trial, the trial judge
    found that Mr. Iannarella had not proven that he had a permanent
    impairment of a physical or psychological function caused by the accident, and exercised
    his authority under s. 267.5 of the
Insurance Act
to dismiss the appellants
    claim for non-pecuniary damages. The trial was, however, unfair for the reasons
    set out earlier. It is not possible to discern whether the trial judges ruling
    was based solely on admissible evidence. The threshold ruling must be set
    aside.

[135]

The appellants make a number of specific complaints about the trial
    judges threshold ruling. Since there is to be a new trial, there is no need
    for me to rule on those complaints. It will be the task of the trial judge at
    the second trial to consider the threshold issues under s. 267.5 of the
Insurance
    Act
based on the evidence that is admitted at that trial if a threshold
    motion is brought.

(4)

The Costs Disposition

[136]

The
    trial judge
awarded the respondents partial indemnity costs to
    the date of their substantial offer to settle on March 12, 2012, and
    substantial indemnity costs thereafter. This was an award to the respondents of
    about $255,000 for a fifteen-day trial that extended over four weeks. The trial
    judge rejected evidence that the appellants were impecunious, noting that they
    had equity in their home.

[137]

Since the appeal is to be allowed, the costs disposition is to be
    set aside. I do, however, wish to make several observations about the trial
    judges costs disposition. The action was dismissed, and the defendants would
    ordinarily be entitled to no more than costs on a partial indemnity basis. But
    the costs award on a substantial indemnity basis was distinctly punitive to the
    appellants, who stand to lose their home.

[138]

The trial judge stated that he was exercising his discretion under
    this courts decision in
S.& A. Strasser Ltd. v. Richmond Hill (Town)
(1990),
    1 O.R. (3d) 243 (C.A.). In that case the court cited rule 49.13, which provides
    that notwithstanding rule 49.10, in assessing costs a court may take into
    account any offer to settle made in writing.

[139]

The development of this courts approach to awards of substantial
    indemnity costs has evolved since
Strasser
, as this court noted in
Davies
    v. Clarington (Municipality)
, 2009 ONCA 722,
100 O.R. (3d) 66
. Outside of rule 49.10, to make such an award as a matter of
    judicial discretion the court must find that the party has been guilty of egregious
    misconduct in the proceeding. See
St. Elizabeth Home Society v. Hamilton
    (City)
, 2010 ONCA 280, at para. 92 and
McBride Metal Fabricating Corp.
    v. H. & W. Sales Co.
(2002), 59 O.R. (3d) 97 (C.A), at para. 39. I can
    see no basis in this case on which the trial judge could have found such
    misconduct on the appellants part.

[140]

Moreover, the trial judge did not take into account the respondents
    breaches of the
Rules
, which should have attracted countervailing
    weight in the fixing of the trial costs: see
Capela
and
Beland
.

D.

Disposition

[141]

I would allow
    the appellants liability appeal,
set aside the judgment and
    substitute a finding of liability against the respondents. I would order a new
    trial on the issues of damages
.
The costs of the trial will be to
    the appellants in the cause on the second trial.

[142]

I would award the costs of this appeal to the appellants. If the
    parties cannot agree on the quantum they may file written submissions no more
    than five pages in length within 10 days of the date of this decision.

Released: February 17, 2016 JL

P.
    Lauwers J.A.

I
    agree John Laskin J.A.

I
    agree C.W. Hourigan J.A.


