Nemchin v. Green  ONCA 634
The Ontario Court of Appeal recently provided further guidance on the use of surveillance and Facebook in personal injury cases in its decision of Nemchin v. Green, 2019 ONCA 634. The plaintiff, Nemchin, suffers from PTSD allegedly arising from a motor vehicle collision with the defendant, Green which has affected her daily activities. The main issue at trial was whether her PTSD was caused by the motor vehicle accident or an earlier sexual assault. The jury’s finding of causation and liability resulted in $700,000 of damages payable to Ms. Nemchin.
Appeal counsel for Ms. Green (who were not trial counsel) submitted that the trial judge erred in two ways that led to an unjust jury verdict. First, defence was not permitted to show surveillance evidence. Second, defence was not permitted to show 20 of Nemchin’s Facebook posts. Both of these items were intended to be used by the defence as evidence to establish that Nemchin’s activities of daily living were not impacted to the extent that she claimed.
The Court of Appeal first looked at the test for video evidence admissibility:
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.
The court’s task during the voir dire is to look at each piece of video evidence and use discrete and granular assessment to determine whether it is, in and of itself, admissible. This test is the same whether the evidence is to be used for impeachment or substantive purposes. The difference is that surveillance “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.”
At trial, the judge disagreed that the surveillance video showed any activity that was contradictory to the plaintiff’s evidence and was ruled inadmissible because of its minimal probative value. The Court of Appeal disagreed with that assessment, stating that “the evidence was arguably available to provide context and to qualify the plaintiff’s testimony as to her true functionality.”
The final round of surveillance was also ruled not admissible at trial due to its late delivery. The Court of Appeal again found that the trial judge had erred in her decision by failing to determine whether any meaningful or realistic concerns of the Plaintiff and her counsel would arise because of the late delivery. The surveillance was very similar to previous evidence, which had been disclosed in accordance with the Rules, so the surveillance was ruled admissible by the Court of Appeal.
Finally, the trial judge cited procedural reasons for concluding the video surveillance was inadmissible. She stated:
- Some video was time-stamped while some was not
- The investigator was unsure of exactly how the video had been edited and could therefore not verify that it was accurate
- The investigators report included his commentary on which video stills most described the plaintiff’s inconsistencies in testimony
- There were gaps in the footage
Lauwers J.A., in writing for the Court of Appeal, disagreed with that conclusion, stating:
None of the trial judge’s 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.
With respect to the Facebook admissibility, the parties had made an agreement during the course of litigation for the defence to access the plaintiff’s Facebook account, but any materials copied were to be provided to plaintiff’s counsel. The defence tried to put 20 Facebook posts to the Plaintiff in her cross-examination without having provided them “through inadvertence”. It was understood at trial that the posts were from the period of the agreement, so the trial judge ruled them inadmissible. The Court of Appeal agreed with that conclusion, further stating that “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.”
Despite the Trial Judge’s errors, the appeal was dismissed because the surveillance’s value would not have been significant enough to sway the jury’s verdict. The Nemchin case offers a valuable review of the fundamental issues associated with surveillance evidence at trial. It tells us that the Court must take a specific and granulated approach to determining admissibility, while looking at each bit of surveillance separately. Most importantly, it highlights that issues related to fairness and prejudice may be more persuasive than technical issues with the surveillance when determining its admissibility.