



COURT OF APPEAL FOR ONTARIO

CITATION: Nemchin v.
    Green, 2019 ONCA 634

DATE: 20190731

DOCKET: C63709

Rouleau, Lauwers and
    van Rensburg JJ.A.

BETWEEN

Tanya Nemchin

Plaintiff (Respondent)

and

Yvonne Green

Defendant (Appellant)

Stephen Ross, Brian Sunohara and Meryl Rodrigues, for
    the appellant

Joseph Obagi and Elizabeth Quigley, for the respondent

Heard: December 14, 2018

On appeal from the judgment of Justice Sylvia Corthorn
    of the Superior Court of Justice, sitting with a jury, dated April 5, 2017.

Lauwers J.A.:

[1]

Yvonne Green, the appellant and the defendant in this case, made a left
    hand turn at an intersection into oncoming traffic and collided with Tanya
    Nemchin, the respondent and the plaintiff. The jury assessed liability for
    negligence at 90% against Ms. Green, and 10% against Ms. Nemchin for
    contributory negligence, and fixed damages in the amount of about $700,000,
    payable by Ms. Green to Ms. Nemchin.

[2]

It is common ground that Ms. Nemchin suffers from post-traumatic stress
    disorder. The main issue at trial was whether her PTSD was caused by the
    collision and was significant, or whether it was the result of an earlier
    sexual assault. She also had some residual physical complaints. The jurys
    finding of causation and liability led to the determination of damages.

[3]

The trial judge made two rulings on the evidence that appeal counsel for
    Ms. Green (who were not trial counsel) submit led to an unjust jury verdict. The
    defence was not permitted to show the jury surveillance evidence in order to
    establish that Ms. Nemchins activities of daily living were not as much
    impacted by PTSD as she had led the jury to believe. The defence was not
    permitted to show 20 of Ms. Nemchins Facebook posts to the jury as evidence to
    the same effect. The appellant argues that the exclusion of this evidence,
    which would have presented a more accurate picture of Ms. Nemchins true
    capabilities, was wrong in law, and led to a miscarriage of justice requiring a
    new trial.

[4]

I would dismiss the appeal for the reasons that follow.

A.

THE ISSUES ON APPEAL

[5]

The court must address three issues: First, did the trial judge err in
    excluding all of the surveillance evidence? Second, did she err in excluding
    the Facebook evidence? Third, taking into account the trial context, the
    evidence and the arguments, did the trial judge make errors sufficiently grave
    to warrant a new trial?

B.

Issue one: Did the trial judge err in excluding the surveillance
    evidence?

(1)

The video surveillance evidence

[6]

The video surveillance was taken in three rounds: in May 2015, in
    September 2015, and in May 2016. The May surveillance and the September
    surveillance, and the related written reports, were disclosed in a timely
    manner in the summer and fall of 2015, respectively, well in advance of the
    trial. However, through inadvertence, the May 2016 surveillance video and
    report were not disclosed to the plaintiff until January 30, 2017. This was
    about two weeks before the trial began. This left two issues to be resolved
    regarding the surveillance. The first is whether the properly disclosed two
    rounds of surveillance were admissible on ordinary principles, and the second
    is about the effect of the delay in disclosure on admissibility of the third
    round of surveillance video.

[7]

The appellants factum states that the defence wanted to tender the
    surveillance as substantive evidence for the jurys consideration as part of
    its fact-finding process with respect to the extent of the Plaintiffs alleged
    limitations and functioning, and in assigning a monetary value to the Plaintiffs
    alleged pain and suffering, loss of enjoyment of life and loss of income.

[8]

The trial judge excluded all of the surveillance for the reasons
    reported at 2017 ONSC 1321,
7 M.V.R. (7th) 22
.

(2)

The governing principles

[9]

Video evidence can be compelling. As noted by the Supreme Court of
    Canada in
R. v. Nikolovski
, [1996] 3 S.C.R. 1197, at para. 21:

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. The trier of fact may review the evidence of this silent witness
    as often as desired. The tape may be stopped and studied at a critical
    juncture.

Recognizing this power, trial counsel for the
    plaintiff argued that the evidence should be excluded and the trial judge
    agreed.

(a)

The test for the
    admissibility of surveillance evidence

[10]

Contrary
    to the submissions of counsel, the test for the admissibility of surveillance
    evidence is the same whether it is to be used for impeachment purposes or for
    substantive purposes, and the approach to the assessment of the evidence in the
voir dire
must be the same.

[11]

The
    test for the admissibility of video evidence is set out in
Iannarella v.
    Corbett
, 2015 ONCA 110, 124 O.R. (3d) 523, at paras. 93-95. The video
    evidence must be assessed by the trial judge in a
voir dire
for two purposes.
    The first is to permit the videographer to be examined in order to ensure that
    the video presents a fair and accurate depiction for the surveillance to be
    admitted in evidence. The second purpose of the
voir dire
is for the
    trial judge to ensure that the use of surveillance video will not impair trial
    fairness. See
Iannarella
,
at paras. 95-99.

[12]

The
    trial judges task during the
voir dire
is to look at each piece of
    video evidence that the defence wants to put to the jury, and determine whether
    it is, in and of itself, admissible. This usually requires a discrete and
    granular assessment.

(b)

The key distinction
between the use of surveillance to
    impeach a witnesss credibility and as substantive evidence of a witnesss
    functionality

[13]

This
    appeal brings into sharp relief the relationship between the two traditional
    uses of video surveillance evidence: on the one hand, for the purpose of
    impeaching the witnesss credibility, and, on the other hand, for the purpose
    of showing her true functionality in substantive terms.

[14]

This
    court explained that surveillance video may not be used as substantive evidence
    if the defence has chosen not to disclose it to the plaintiff on the ground
    that it is privileged and hopes to use it in cross-examination for impeachment
    purposes, in accordance with r. 30.09 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194:
Landolfi v. Fargione
(2006), 79 O.R. (3d) 767
    (C.A.); and
Iannarella
.

[15]

However,
    where, as here, the surveillance evidence has been disclosed in accordance with
    the
Rules of Civil Procedure
(as this court strongly encouraged in
Iannarella
),
    it can play a dual role. A short video clip, for example, might show the
    witness doing a particular movement or activity that she testified she was not
    able to perform. It is open to the defence to use the excerpt in
    cross-examination to impeach the witnesss credibility, and then also to use
    that excerpt to show the witnesss true functionality for substantive purposes.

[16]

Here
    the defence did not intend to use any of the excerpts from the video evidence
    in Ms. Nemchins cross-examination to impeach her credibility or her testimony.
    Instead, the defence chose strategically to pursue the use of the surveillance
    for substantive purposes only and the trial judges ruling was confined to that
    use.

[17]

Conceptually
    the situation in this case is somewhat similar to two other recent cases,
Taylor
    v. Durkee
,
2017 ONSC 7358,
    and
Ismail v. Fleming
,
2018 ONSC 6311, both involving personal injury claims arising from car
    accidents.

[18]

In
Taylor
,
the plaintiff
    objected to the admission of surveillance evidence on the basis that it was
    not relevant to any issue at trial: at para. 11. As McKelvey J. noted at para.
    12, [t]he plaintiff argued that the surveillance evidence could not have any
    relevance or probative value given that the activities shown on the video are
    consistent with what she is able to do on a good day.

[19]

Such
    statements are often made by plaintiffs. Do they inoculate the plaintiff from the
    introduction of surveillance evidence for substantive purposes? The general
    answer is no. In
Taylor
,
McKelvey J. permitted the evidence to be led, noting, at para. 16:

In the present case,
    the plaintiff in her evidence at trial testified with respect to a number of
    significant physical impairments which include her right shoulder, neck and
    lower back. In my view, the fact that the plaintiff has acknowledged that on a
    good day she is able to perform the activities shown on the video should not
    lead to its exclusion as substantive evidence.

He noted, at para. 17, that the
    surveillance evidence was relevant to a fact in issue, specifically, the
    degree of impairment suffered by the plaintiff in her activities of daily
    living. He held: The fact that the plaintiff has given some evidence about
    her ability to do these activities on a good day does not mean that no other
    evidence may be introduced.

[20]

In the view of McKelvey J., at para. 17: There is a qualitative
    difference between the plaintiffs oral evidence on cross-examination and a
    video which actually shows her doing these activities. Relevant evidence on a
    critical issue should not be excluded. He pointed out that the jury would hear
    from a variety of sources apart from the plaintiff, including evidence from
    other family and friends about their observations as well as medical evidence
    based on an assessment by a qualified expert. He noted: It is ultimately a
    question of fact for a jury to weigh all of the relevant evidence and come to a
    conclusion about the nature and degree of any impairment. Jury instructions
    could be crafted to avoid impermissible jury reasoning.

[21]

I agree with McKelvey J.s reasoning in
Taylor
, which rests on principles of broader application.

[22]

In
Ismail
,
Leach J. decided
    a pre-emptive motion to exclude surveillance evidence for substantive purposes,
    brought by the plaintiff before any evidence was called and before any
voir
    dire
: at para. 5. The plaintiff objected to the surveillance evidence on
    various grounds: some of it had not been disclosed on a timely basis; the
    prejudicial effect of some of the video evidence outweighed its probative
    value; and the recordings represented only a very small fraction of the total
    time spent by defence investigators in their efforts to obtain surveillance
    video helpful to the defendants case: at para. 7.

[23]

Justice
    Leach did not fully accept these objections. He noted that his ruling was
    intended to provide general confirmation that the defendants will be permitted
    to tender, (if only through their own witnesses), a measure of surveillance
    video evidence relating to the plaintiff on various occasions: at para. 5.
    However, he made it clear that the admission of any actual surveillance evidence
    could be the subject of more specific rulings, if necessary: at para. 5.

[24]

In
Ismail
, Leach J. was plainly uncomfortable with the blanket nature of
    the motion. He took a prudent approach. Although he gave a provisional ruling
    dismissing many of the plaintiffs objections to the surveillance evidence, he
    withheld blanket approval and left open the possibility for more specific
    rulings with respect to any particular video evidence. He did not, as he said
    at para. 13, give the defendants carte blanche to introduce all of the
    surveillance video as substantive evidence, in whatever manner they chose. He
    noticed a number of potential concerns, albeit concerns [he] felt were capable
    of being addressed through more specific rulings and/or supportive contextual
    evidence and detail.

[25]

The
    cases note that there is a distinction between the use of video surveillance
    evidence to impeach the witnesss credibility, and for the purpose of showing
    her true functionality in substantive terms. Where does the distinction leave
    trial judges?

[26]

As
    noted earlier, the second purpose of the
voir dire
is for the trial
    judge to ensure that the use of surveillance video will not impair trial
    fairness. See
Iannarella
,
at paras. 95-99. This includes considering the application of the rule in
Browne
    v. Dunn
(1893), 6 R. 67 (H.L. (Eng.)). Few cases have received this courts
    attention as often. So I pause to recall what the rule, which is less a rule
    than a principle of fairness, is about.

[27]

In
    their text
Witnesses
, loose-leaf (2019-Rel. 2) (Toronto: Thomson Reuters
    Canada, 2017), Professors Mewett and Sankoff put the rule simply, at p. 12-63:
    To the extent that there is a rule in
Browne v. Dunn
, it requires a
    party to cross- examine opposing witnesses on any point he or she later intends
    to contradict by calling evidence to this effect or suggesting during closing
    submissions that the witnesss testimony should not be accepted. They identify
    the following as a caveat:

[M]ost courts seem to recognize that the primary objective of
    the rule is to ensure that a witness has the chance to address major contradictions
    so that their evidence can be assessed fairly.  In
R. v. Dexter
, [2013
    ONCA 744, 313 O.A.C. 226] the Ontario Court of Appeal made the same point,
    referring to
Browne v. Dunn
as a rule of trial fairness that requires
    counsel to give witnesses a chance to address contradictions in
    cross-examination. The rule was not violated by minor omissions, as only the
    nature of the proposed contradictory evidence and its significant aspects need
    be put to the witness [at para. 18].

[28]

As
    Watt J.A. noted in
R. v. Vassel
, 2018 ONCA 721, 365 C.C.C. (3d) 45, at
    para. 128: Confrontation on matters of substance is what is required. His
    earlier point, at para. 120, sets the scene:

The rule is one of fairness, thus not a fixed or invariable
    rule, much less a rule of admissibility. The extent of its application rests
    within the sound discretion of the trial judge, a discretion that is subject to
    significant deference on appeal:
R. v. Quansah
, 2015 ONCA 237, 125 O.R.
    (3d) 81, at paras. 76-77 and 80, leave to appeal refused, [2016] S.C.C.A. No.
    203.

[29]

The
    trial judge must decide whether the claimed contradiction warrants full-on cross-examination
    as a matter of trial fairness. Consider a continuum. At one end is a flat-out
    discrepancy between the plaintiffs claimed functionality and her actual
    functionality. An example would be the asserted inability to make a particular
    hand movement and surveillance evidence that shows the plaintiff able to do it.
    The plaintiff, in short, appears to be lying. This is the major discrepancy/impeachment
    end of the spectrum, where the witnesss credibility is being challenged.

[30]

At
    the other end of the spectrum, there is relatively little difference between
    the plaintiff's claimed and actual functionality. An example would be the
    situation in
Taylor
, where the plaintiff testified that she could do
    what the surveillance evidence depicted on a good day. This is the minor
    discrepancy end of the spectrum.

[31]

Trial
    judges must assess where the situation before them is to be placed on the
    spectrum. If it is more towards the major discrepancy/impeachment end, then
    trial fairness suggests that the evidence should be put directly to the witness
    in cross-examination. A witness should not be called a liar without being given
    an opportunity to explain the discrepancy. Assuming the surveillance evidence
    was properly disclosed, then the evidence is also capable of being used for
    substantive purposes.

[32]

However,
    if the situation presents as more towards the minor discrepancy end of the
    spectrum, then the surveillance evidence can be put in as substantive evidence
    without first being put to the witness for impeachment purposes. The assessment
    of where the situation falls is within the trial judges discretion, provided
    always that trial fairness is properly evaluated.

(c)

The timing of motions to exclude surveillance evidence

[33]

Taylor
and
Ismail
also address the timing of a motion to exclude
    surveillance evidence. In
Taylor
,
the motion was argued after the plaintiff had been set up during
    cross-examination to testify about what was shown in the surveillance evidence.
    In
Ismail
, the motion was brought before any evidence was adduced,
    leaving Leach J. with an even more limited context in which to decide the
    issue. In this case the motion was brought before cross-examination began,
    which limited the defences opportunity to set the issue up properly.

[34]

In
    my view trial judges need not be governed entirely by the actions of counsel in
    bringing motions to exclude surveillance evidence. In both
Ismail
and in
    this case, it would have been open to the trial judge to refuse the plaintiffs
    motion and invite it to be renewed at a more appropriate time. In the context,
    the approach taken by Leach J. in
Ismail
is generally preferable to an
    early and exhaustive ruling on the admissibility of surveillance evidence.
    However, pre-emptive wholesale attacks on surveillance evidence of the sort
    brought in
Ismail
and in this case should generally be avoided.

(3)

The trial judges surveillance ruling

[35]

To
    set the context of the

trial judges surveillance ruling
,
    part of the plaintiffs case to the jury was a video of a yoga retreat, which
    showed Ms. Nemchin in various yoga poses and doing various activities that she
    testified were somewhat limited as a result of the PTSD from which she was
    suffering.  Perhaps trial counsel led this video evidence pre-emptively to take
    some of the sting out of the anticipated defence surveillance.

[36]

The
voir dire
on the surveillance evidence took the better
    part of two days at trial. Ordinarily the
voir dire
would take place
    after the witness has been set up in cross-examination, as in
Taylor
.
    But in this case it occurred prematurely, at a break in Ms. Nemchins
    examination-in-chief, rather than after the stage had been set in her
    cross-examination.

[37]

Counsel for Ms. Nemchin launched a full-on challenge to the
    admissibility of any of the surveillance evidence.
The trial judge erred
    in accepting the approach taken by Ms. Nemchins counsel of dealing with the
    video evidence as a whole instead of taking a discrete granular approach to each
    video excerpt the defence wanted to put into evidence.

[38]

The trial judge issued a brief oral ruling and later released the
    written ruling (reasons reported at 2017 ONSC 1321, 7 M.V.R. (7th) 22). She gave
    three substantive reasons for refusing to admit the video evidence, and several
    process reasons.


[39]

First,
    she stated, at para. 65:

The defendant submits that the events and activities shown on
    the video footage are contradictory to the evidence of the plaintiff to date
    with respect to her physical limitations, psychological symptoms of
    post-traumatic stress disorder, and lack of comfort driving. I disagree.

The trial judge found the surveillance
    to be of minimal probative value and  therefore inadmissible (at para. 63),
    on the basis that to be
admissible, the probative value of the
    surveillance video [footage] must be such that it is capable of contradicting,
    challenging, or impugning the witness testimony: at para. 64. For this
    proposition she cited para. 99 of

Iannarella
, excerpted above.

[40]

Second,
    the trial judge accepted the plaintiffs argument that, in the context of Ms.
    Nemchins PTSD, the jury could not be expected to interpret the surveillance
    evidence meaningfully without expert opinion evidence. She noted, at para. 75:

[N]one of the experts, including the defence medical examiner,
    have reviewed the surveillance evidence and provided an opinion as to the
    significance of the activities depicted in the footage. The plaintiffs
    position is that absent expert opinion on the significance of the activities
    depicted, in particular in the context of a claim based on post-traumatic stress
    disorder, it would be prejudicial to the plaintiff for the defendant to be able
    to make submissions in closing argument as to the significance of those
    activities.

Nor does it appear that Ms. Nemchin provided the yoga
    video to the expert she retained before or at the trial, or to the defence
    expert.

[41]

Third,
    the trial judge found that the last round of video surveillance was not
    admissible because it was served on the plaintiff too late, citing para. 55 of
Iannarella
.

(4)

The principles applied

[42]

I
    address each ground of the trial judges reasoning in turn. I observe that
    there seems to have been a shift in the defence position between the trial and
    the appeal.

[43]

Appeal
    counsel played a short four-minute video clip for this court of images of Ms.
    Nemchin that he argues should have been left with the jury. (I infer that this
    is the most significant video out of about 2.5 hours of available video.) The
    video was played without commentary, and appeal counsel then made this
    submission:

At the trial the defendant sought to rely on this evidence as
    substantive evidence not for the purposes of impeachment, not because they said
    it directly contradicted anything she said, [but] for its ability to help the
    jury understand the nature and extent of the plaintiffs injuries and during
    that surveillance, as you may have appreciated, the plaintiff is captured
    active in public locations, physically capable with no visible limitations,
    socially engaged with others in both fairly intimate and more crowded settings.
    It wasnt the whole answer to the case, it was another brick in the wall. It
    was a bit of substantive evidence the jury should have had to consider the
    issues in dispute in this case which was clearly the nature and extent of her
    injuries.

[44]

This
    appeal submission takes a different tack than trial counsel took. It downplays
    the defence argument at trial, which the trial judge set out, at para. 65 of
    her reasons: [T]he events and activities shown on the video footage are
    contradictory to the evidence of the plaintiff to date with respect to her
    physical limitations, psychological symptoms of post-traumatic stress disorder,
    and lack of comfort driving.

[45]

It
    is interesting that the same evidence could be portrayed so differently. As
    explained by trial counsel, the evidence seemed to be more along the line of
    impeachment. In playing the video without prior cross-examination, the implicit
    defence submission to the jury would have been along these lines: How can someone
    like Ms. Nemchin who suffers from PTSD carry on as she does in this video? She
    must be malingering or exaggerating her PTSD related symptoms. But appeal
    counsel presented the surveillance as contextualizing evidence as in
Taylor.

[46]

As
    her first ground for refusing the admission of the surveillance evidence for
    substantive purposes, as noted, the trial judge did not agree that the events
    and activities shown on the video footage are contradictory to the evidence of
    the plaintiff to date with respect to her physical limitations, psychological
    symptoms of post-traumatic stress disorder, and lack of comfort driving: at
    para. 65.

[47]

However,
    the trial judge erred in concluding that it could only be shown to the jury if
    it contradicted the plaintiff. The evidence was arguably available to provide
    context and to qualify the plaintiffs testimony as to her true functionality,
    along the lines of the evidence in
Taylor
.

[48]

As
    her second ground, the trial judge also relied on the fact that the video was
    not put to the experts for their opinion on how it should be interpreted in
    light of her PTSD claim. This is a factor the trial judge could take into
    account in exercising her discretion to exclude the surveillance video. Her
    analysis is lacking in failing to consider why the yoga video was in a
    different category, or in considering whether the experts could have been
    consulted further to determine whether the video might have elicited further
    opinions and led to the need for testimony.

[49]

With
    respect to her third ground, the trial judge had discretion not to admit the
    late-disclosed surveillance video. The appellant invokes r. 53.08, which
    provides that if a party who has failed to disclose documents nonetheless seeks
    leave from the trial judge to adduce the evidence, 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. This issue was canvassed in
Iannarella
,

at paras. 77-90. Contrary to the
    appellants submission, r. 53.08 is not mandatory in an absolute sense. In the
    context of an ongoing civil jury trial an adjournment is often not a viable or
    reasonable response, and the trial judge can take that factor into account.

[50]

That
    said, however, the trial judge did not assess the late-disclosed surveillance to
    determine whether its admission would be prejudicial, in the sense noted by
    Leach J. in
Ismail
, at para. 13, which I borrow. The question is whether
    there were
any realistic or meaningful concerns about
    the plaintiff and her counsel being unfairly taken by surprise by the admission
    of such evidence at trial. Late production is usually not a good reason for
    excluding relevant evidence where it is similar to evidence that was disclosed
    on time, so that neither the plaintiff nor her counsel were unfairly caught by
    surprise.
The trial judge erred in not assessing whether the late surveillance
    evidence should be admitted considering fairness and surprise.

[51]

In
    my view, none of the three substantive reasons given by the trial judge for
    excluding the surveillance hold up under scrutiny.

(5)

The trial judges process reasons for refusing to admit the surveillance
    evidence

[52]

I
    now turn to consider the trial judges process reasons for refusing to admit
    the video surveillance. In order to understand the trial judges reasoning, it
    is necessary to distinguish three types of video recordings.

[53]

The
    first type is raw video, which is the data recorded by the cameras. The second
    type is edited video, which consists of the recordings compiled by the
    videography firm, some of which the defence wanted to show the jury. The edited
    video came from a larger set of video recordings, the third type, called the
    unedited video, which the defence did not seek to show to the jury in its
    entirety. However, the unedited recordings were not raw recordings, but had
    undergone some editing. Footage that did not depict Ms. Nemchin was excised. The
    investigator was using more than one camera from time to time, including his
    cell phone. He did not know exactly how raw footage was edited, but it appears
    that the unedited video was spliced together from the various sources of the raw
    video on a chronological basis. There was no surviving raw video.

[54]

The
    trial judge concluded at para. 47 that the video should not be admitted into
    evidence: The video footage, both edited and unedited, is not accurate in
    truly representing the facts. She gave four reasons, none of which are persuasive.

[55]

First,
    some of the video was time stamped and some of it was not. This was explained
    as the effect of zooming in past the time stamp. But there was no evidence that
    the zoomed in video was different from the unedited video from which it was
    derived. The actual timing, to the extent that it was relevant, would have been
    easy to establish.

[56]

Second,
    t
he trial judge found that because the investigator did not
    know precisely how the video had been edited, he was unable to provide
    verification on oath that the video was accurate, even though he filmed it. T
he
    editing undertaken by the videography firm was inadequately described in the
    investigators written surveillance reports. But that does not affect whether a
    particular sequence of images was accurate or not in what it depicted, or the
    investigators ability to authenticate it.

[57]

Third,
    the videography firms support staff picked out stills from the video that
    were included in the body of the reports. These stills were pictures that most
    describe the inconsistency or inconsistencies a staff member identified
    between the subjects asserted life limitations and the activities depicted in
    the video: at para. 40. The trial judge was troubled that some descriptions in
    the written surveillance reports contained subjective elements. She found, at
    para. 52: In my view, it is inappropriate for the investigator to include his
    personal, subjective observations of the plaintiff in the surveillance report
    in any way whatsoever. Nonetheless, the trial judge did not find the
    investigator intended to mislead, nor did she determine that the editing was
    biased: at paras. 57
, 60. In my view, the trial judge gave far
    too much weight to the written surveillance reports, perhaps assuming they
    would form part of the evidence before the jury. But the critical evidence was
    the video itself, not the surveillance reports, which could have easily been
    excluded or redacted if they contained questionable text.

[58]

Fourth,
    although there were many hours of footage, there were gaps. The trial judge
    picked out an example in which Ms. Nemchin was walking along Bank Street in
    Ottawa. She noted at para. 43 that [t]he video covers a total time of
    approximately 40 minutes, but has been edited to 12 minutes. She added that [t]here
    are other examples where a significant amount of time has been edited from the
    video footage, resulting in an incomplete and/or inaccurate depiction of the
    plaintiffs activities: at para. 44. While the trial judge found the
    investigators explanation for the gaps to be understandable she nonetheless
    found the video to be incomplete footage which does not accurately depict the
    plaintiffs activities: at para. 46.

[59]

With respect, there is no requirement that a video be continuous or
    complete before it can be said to accurately depict a witnesss activities.
    Lengthy surveillance is rarely played for a jury. Doing so would usually be a
    waste of valuable trial time. The key is to ensure that the excerpts played are
    fair and accurate.

[60]

As
    noted, the trial judges task was to look at each piece of video evidence and
    determine whether it was, in and of itself, admissible. She did not take this
    sort of granular approach to the video evidence, but dealt with it as a whole.
    This led her into error.

[61]

None
    of the trial judges process reasons for excluding the surveillance evidence
    hold up under scrutiny. They are all matters of weight for the trier of fact to
    consider. I agree with the observation made by Michelle Fuerst & Mary Anne
    Sanderson in
Ontario Courtroom Procedure
, 4th ed.
(Toronto: LexisNexis Canada, 2016), at p. 1097:
    A video recording is admissible as soon as it is established that it depicts
    the scene and has not been altered or changed  any other factors, such as the integrity
    of the recording or the identity of a speaker, are matters for the trier of
    fact and go to weight only, not admissibility.

C.

Issue two: Did the trial judge err in excluding the Facebook Posts?

[62]

At
    trial, in the latter part of Ms. Nemchins cross-examination the defence sought
    to put some 20 of her own Facebook posts to her. I infer that these posts would
    have formed the basis of a critical cross-examination that would have
    challenged Ms. Nemchins functionality in terms of her PTSD using the text and
    the pictures in the posts.

[63]

Defence
    counsel told the trial judge that these were Facebook posts obtained through an
    access agreement between counsel, under which the plaintiffs Facebook page was
    reactivated to allow defence counsel to retrieve information from it, but on
    the condition that the information would be copied and provided to plaintiffs
    counsel posthaste. The defence accessed the Facebook posts but then did not
    provide copies in breach of the access agreement, again, it is claimed, [t]hrough
    inadvertence.

[64]

Before this court, counsel for Ms. Green acknowledged that
    trial counsel for the defence had not retained a copy of the 20 specific
    Facebook posts that he wanted to put to the witness or to use as substantive
    evidence. It was a practice error on the part of trial counsel and the trial
    judge not to make these Facebook posts lettered exhibits in the
voir dire
on the motion. As the court noted in
1162740
    Ontario Limited v. Pingue
, 2017 ONCA
    52, 135 O.R. (3d) 792, at para. 14: 
The goal of a trial judge in
    supervising the assembly of a trial record is completeness and accuracy, so
    that the panel of this court sitting on the appeal can discern without
    difficulty exactly what was before her at any moment in the course of the
    trial.

[65]

Appeal
    counsel for Ms. Green filed a brief of Facebook posts with this court showing
    the plaintiff in various yoga poses and other situations that he asserted
    resembled the brief trial counsel sought to put to the jury.

[66]

The
    trial judge ruled, in reasons reported at 2017 ONSC 1403, that the Facebook
    posts could not be used as evidence on the basis that, in light of the six
    volumes of Facebook posts the defence wanted to file, the prejudice to the
    plaintiff, at [that] point in time, in the preparation and the presentation of
    her case [was] too significant, and so [the trial judge was] not going to allow
    [the defence] to cross-examine [the plaintiff] on the Facebook pages.

[67]

Before
    this court, appeal counsel noted that trial counsel was mistaken in advising
    the trial judge that the Facebook posts had come from the retrieved information
    covered by the access agreement. As it turns out, upon closer examination, they
    were actually from an earlier time that was not covered by the access
    agreement. They were, therefore, technically available for use as evidence. But
    this is not the situation that was presented to the trial judge for
    disposition.

[68]

On
    the facts as she understood them concerning the origin of the Facebook posts
    that the defence sought to put to Ms. Nemchin, the trial judge did not err in
    her ruling, despite the mandatory wording of r. 53.08. As noted earlier, this
    issue was canvassed in
Iannarella
, at paras. 77-90. Given that the issue
    of the admissibility of the Facebook posts did not arise until towards the end
    of Ms. Nemchins cross-examination and given the confusion around their origin,
    which can only be laid at the feet of trial defence counsel, the trial judges discretionary
    ruling was reasonable.

[69]

By
    way of aside, the approach that Leach J. took in relation to the late-produced
    surveillance in
Ismail
would otherwise have application. The trial judge
    was required to consider whether there were
any
    realistic or meaningful concerns about the plaintiff and her counsel being
    unfairly taken by surprise by the admission of such evidence at trial.

D.

ISSUE THREE: IS A NEW TRIAL WARRANTED?

[70]

I
    reach this issue on the assumption that the surveillance videos were admissible
    and that the trial judge erred in excluding them.

[71]

In
    a civil action, a new trial should not be ordered unless the interests of
    justice plainly require that to be done:
Brochu v. Pond
(2002), 62 O.R.
    (3d) 722 (C.A.), at para. 68. Another way to express the test is that the
    appellant must show that a substantial wrong or miscarriage of justice has
    occurred, in the terms of s. 134(6) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43:
Vokes Estate v. Palmer
, 2012 ONCA 510, 294 O.A.C.
    342, at para. 7. This is a contextual assessment, and the appeal court may
    consider the entire record, including counsels jury addresses:
Brisco
    Estate v. Canadian Premier Life Insurance Company
, 2012 ONCA 854, 113 O.R.
    (3d) 161, at para. 71; and
Berthiaume-Palmer v. Borgundvaag
, 2010 ONCA
    470, 273 O.A.C. 397, at paras. 15, 20.

[72]

In
    the context of this trial, would the video surveillance have made a difference
    to the outcome? Could the exclusion of this evidence have caused a miscarriage
    of justice?

[73]

This
    is a case-specific contextual assessment. The opening statements of counsel,
    the closing statements, the jury charge, and the jury questions identify the
    live issues. They were the liability for the collision itself, whether the
    collision caused a recurrence of Ms. Nemchins PTSD, and her ongoing physical
    and psychological functionality as a person with PTSD.

[74]

The
    critical live issue at the trial was causation: did the collision cause the
    PTSD from which Ms. Nemchin is now suffering, or was it caused by the sexual
    assaults that she had experienced as a younger person? The contest between the
    respective experts was clear, and the jurys award shows beyond doubt that it
    preferred the evidence of Ms. Nemchin and her experts.

[75]

The
    amount awarded was driven in part by the jurys assessment of Ms. Nemchins
    ability to earn income in the future, and this was related to the ongoing
    effects of PTSD. In brief, the defences position was that even with PTSD Ms.
    Nemchin could do more to earn a living than she was doing at the time of the trial.
    This issue was also hotly contested, with evidence marshalled on both sides by
    Ms. Nemchin and the defence. Again, the jury clearly preferred Ms. Nemchins
    evidence.

[76]

The
    minor persisting physical injuries or psychological issues injuries pose some ongoing
    problems for Ms. Nemchins functionality but did not loom large in the trial. Ms.
    Nemchin played a video of a yoga retreat which showed her completing some
    challenging poses and socializing. The video excerpts shown to this court that
    the defence wanted to play for the jury as substantive evidence of her
    functionality do not add much to, or subtract much from, the video of the yoga
    retreat. The surveillance video posed no real contradictions and little grist
    for cross-examination, as the trial judge observed, on Ms. Nemchins evidence
    about her physical or mental functionality as a result of the collision and her
    PTSD.

[77]

I
    would find that even if the excluded surveillance evidence were to have been
    admitted, it was not so significant that the evidence would have affected the
    jurys verdict on damages.

E.

Disposition

[78]

I
    would dismiss the appeal and award costs to the respondent in the amount of
    $44,000, all-inclusive, as agreed.

Released: P.L. July 31, 2019

P. Lauwers J.A.

I agree. Paul Rouleau
    J.A.

I agree. K. van
    Rensburg J.A.


