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Admissibility of Surveillance Evidence at Trial

 Feb 9, 2018 10:00 AM
by Vagmi Patel

In  Rolley v. MacDonell, the defendant brought a motion for leave to rely on surveillance video recordings as substantive evidence. Three rounds of surveillance were carried out over a period of one year.

For a surveillance video recording to be admissible as substantive evidence, it must satisfy the following three-part test:

  1. Accuracy in truly representing the facts;
  2. Fairness and the absence of any intention to mislead; and
  3. Verification on oath by a person capable of doing so.

(See Iannarella v. Corbett, 2015 ONCA 110, 331 O.A.C. 21, at para. 94 and Nemchin v. Green, 2017 ONSC 1321, at para. 16.)

In addition, the probative value of the evidence must outweigh its prejudicial effect.

The parties disagreed over whether the surveillance videos satisfied at the admissibility test.

With regard to the first part of the test, the judge found that there were various gaps in the surveillance video recordings that were frequent and significant. The recordings depicted anywhere from 15 to 27 to 50 percent of the time during which the plaintiff was engaged in an activity. As a result,they could not be considered fair, accurate, and representative of the events purported to be depicted in the recordings

In assessing the second prong of the test, the judge found that the investigator was forthright in his answers. The investigator was empathetic that it was not his intention to cast the subject in a light favourable to the client that was paying for the surveillance. He also emphasized the practicalities of carrying out surveillance, including the requirement to move about to be able to continue recording a subject. The judge concluded that the investigator did not have an intention to mislead. However, with respect to the second element of fairness, the judge did not find the video recordings to be fair.

For the third part of the test, the judge found that the investigator provided verification under oath of the surveillance conducted. Given that the surveillance evidence did not satisfy the first two parts of the test, the judge did not address the third issue in detail.

The judge did find that two of the videos satisfied the three-part test for admissibility, and considered the probative value versus the prejudicial effect of these recordings. With respect to both, he found that they depicted nothing that challenged, contradicted or impugned the evidence given by the plaintiff’s wife. He, therefore, concluded that both the videos had a minimal probative value.

The judge emphasized that a trial judge must be stringent in his or her gatekeeper role when dealing with surveillance evidence. The judge dismissed the defendant’s motion and denied any entitlement to rely on any portion of the surveillance video recordings as substantive evidence.

The decision suggests that careful consideration be given to the quality of the surveillance video recordings when deciding whether to attempt to rely on the recordings as substantive evidence at trial.




Judge Orders “Hard-Balling” Insurer to Pay Costs 12 Times the Amount of Jury Award

 Feb 2, 2018 10:00 AM
by Alexandra Wilkins

In Persampieri v. Hobbs, the Plaintiff was rear-ended by the Defendant and brought a tort claim for damages. Following a two week trial, the jury awarded net damages of $20,414.83. However, this case is significant for the costs award – roughly 12 times the amount awarded in damages!


Several months before trial, on March 21, 2017, the Plaintiff served a rule 49 Offer to Settle the action for $20,000.00, plus partial indemnity fees and disbursements. On May 15, 2017, about two weeks before trial, the Plaintiff served a further Rule 49 offer for $10,000.00, plus partial indemnity costs. Comparing the Offers to the jury award, the Plaintiff clearly “beat” the award. At the costs hearing, the Plaintiff sought the usual cost consequences under Rule 49.01(1). The Defence adamantly argued that to order costs as sought by the Plaintiff would be unreasonable and not proportional to the net award.


Justice Sanderson thought otherwise. According to Justice Sanderson, “to let proportionality be the overriding, or even the predominant factor, would be grossly unfair to the Plaintiff and would be to reward the uncompromising, and, (in the light of the jury verdict) unreasonable behaviour of the insurer.” She noted the Insurer took a hard line, despite admitting liability. From day one, the Insurer took the position that it had assessed the case on its merits and was not willing to offer even $1.00 towards settlement. The Insurer never budged from this aggressive stance.


Justice Sanderson noted that, in this case, the party trying to rely on the proportionality principle was a sophisticated insurer that had made a tactical decision to reject a Plaintiff’s Rule 49 Offer understanding the risk in costs that it was taking by doing so. Furthermore, because the Insurer had framed its defence in the manner that it had, it knew that the resolution of the issues at trial would involve the hearing of lengthy and costly evidence.


Ultimately, Justice Sanderson found no reason to depart from the usual cost consequences of Rule 49.01(1) and found the Plaintiff entitled to her costs on the partial indemnity scale to May 15, 2017, and to her costs on the substantial indemnity scale thereafter. The Court ordered costs of $237,017.50 – almost 12 times the net of the jury award!


This case is a serious warning to Insurers that “playing hardball” could well expose them to significant adverse cost consequences at trial, even where they are successful in limiting the plaintiff’s recovery to a very modest amount.


The decision is also notable for its thorough review of the case law on costs.

Alexandra practices insurance related litigation with a focus on accident benefits and bodily injury claims. 

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