In January 2015, the Ontario Court of Appeal issued its decision in Iannarella v. Corbett. While the facts seem simple, the trial seems to have gone badly wrong for the plaintiffs. Lauwers J.A., writing for a three-judge panel, found much to correct and criticize. The judgment has been presented in the National Post as a clampdown on the use of surveillance evidence by defendants in auto collision cases.
At issue was the liability for a rear-end collision: a concrete truck driven by the defendant rear-ended the plaintiff’s vehicle on a snowy, icy night. Highway 427 was buffeted with mini-whiteouts and the traffic was stop-and-go. Mr. Iannarella suffered a rotator cuff injury and chronic pain, and has had two surgeries related to the accident.
Generally, the driver of the rearmost car must prove that his negligence did not cause the collision. However, the trial judge’s instructions to the jury had repeatedly pointed out Mr. Iannarella’s burden of proving, on a balance of probabilities, that Mr. Corbett was negligent. Trial counsel had moved for a directed verdict on liability, but the trial judge rejected this motion.
On the facts, the Court of Appeal substituted a finding of liability. Due to the trial judge’s error of law with respect to onus of negligence, Mr. Iannarella’s lawyer’s failure to object to the jury charge was not fatal to the appeal.
Other irregularities occurred as well. The plaintiffs had waived examinations for discovery and did not request an affidavit of documents. To sum, up here is what should have happened:
- The defendants should have provided an affidavit of documents, regardless whether one was requested;
- They should have disclosed the existence of video surveillance footage, even if it was created after the matter was set down for trial;
- If they did not disclose the footage’s existence or share it with the plaintiffs, the trial judge should have ordered at the trial management conference that the videos or a summary thereof be produced.
- If the affidavit of documents had not been produced, the evidence within it should only have been used to impeach a witness, or with leave of the court (requiring the trial judge to consider the impact of the footage on the trial’s fairness, and to refer to Rule 53.08).
- Defence counsel should have put to the plaintiff a detailed series of questions on each incident shown in the surveillance.
Almost none of this seems to have happened. The defendants did not disclose video surveillance footage in their affidavit of documents, contrary to Rule 30.08(1)(a). The plaintiffs had waived examinations for discovery and had not requested the affidavit of documents, and the trial judge refused to order production of the affidavit of documents or particulars of surveillance. The footage was not excluded, and instead, the plaintiffs’ lawyers were permitted to call the videographers and, effectively, to cross-examine them on the circumstances surrounding the surveillance. The defence’s address to the jury then used the video surveillance to invite the jury to draw substantive conclusions about the extent of Mr. Iannarella’s disability. After this, the jury instruction did not indicate that the surveillance evidence was to be used only to assess Mr. Iannarella’s credibility, and not as substantive evidence of Mr. Iannarella’s injuries and functioning.
These various errors were “serious and critically impaired the fairness of the trial”, in the Court of Appeal’s view (para 115). Furthermore, Lauwers J.A. commented that for waiver of discovery to be effective, it must be express – waiver cannot be inferred from the fact that the matter is being set down for trial.
The Court of Appeal also suggested modifications to the trial judge’s approach in dealing with the surveillance. The trial judge should have granted remedies in relation to several breaches of the Rules of Civil Procedure, as follows:
- Rule 30.03(1), by failing to serve their affidavit of documents;
- Rule 30.07(b), by failing to disclose surveillance conducted after matter was set down for trial; and
- Rule 31.09, by not meeting their obligation to correct answers given on an undertaking.
Irregularities and errors also occurred in the use of expert reports. Parts of reports from Mr. Iannarella’s orthopedic surgeon and physiotherapist were projected on a screen before the jury – sometimes even during cross-examination of the plaintiff. This was found to be prejudicial. The orthopedic surgeon’s report was included in the shared trial brief although the parties had agreed that no medical reports would be included.
To add injury to injury, the trial judge had ordered $255,000 in costs against the plaintiffs. They stood to lose their home due to this costs order, making the Court of Appeal feel that the order was punitive; however, they had not committed any egregious misconduct in the proceeding. The plaintiffs were granted their costs of the appeal, and costs on the new trial will go in the cause.
At first glance, this ruling is a great success for the plaintiffs: there is a finding of liability, the Insurance Act s.267.5 threshold ruling on the seriousness of Mr. Iannarella’s injuries was set aside, and the irregularities in the treatment of evidence were countered. Furthermore, an onerous costs award was set aside. But we should remember that, despite the finding of liability given by the Court of Appeal, Mr. Iannarella may still have to undergo a new trial on damages – some six years after the accident!