Iannarella v. Corbett et al., (2015) 331 O.A.C. 21 (CA)

• Jurisdiction: Ontario
• Judge: Laskin, Lauwers and Hourigan, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2015), 331 O.A.C. 21 (CA),2015 ONCA 110
• Date: 26 June 2014

Iannarella v. Corbett (2015), 331 O.A.C. 21 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. FE.007

Andrea Iannarella and Giuseppina Iannarella (plaintiffs/appellants) v. Stephen L. Corbett and St. Lawrence Cement Inc. (defendants/respondents)

(C55414; 2015 ONCA 110)

Indexed As: Iannarella v. Corbett et al.

Ontario Court of Appeal

Laskin, Lauwers and Hourigan, JJ.A.

February 17, 2015.

Summary:

The plaintiff was rear-ended by the individual defendant. The plaintiff and his wife sued the individual defendant and St. Lawrence Cement Inc. for damages for the plaintiff's personal injuries. A jury found that the defendant had not been driving negligently and the action was dismissed on liability grounds. General damages were provisionally assessed by the jury. The trial judge dismissed the plaintiff's claim for non-pecuniary damages on the basis that the statutory threshold for this type of injury under the Insurance Act was not met. Costs were awarded against the defendants. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal, set aside the judgment and substituted a finding of liability. The court ordered a new trial on the issue of damages.

Evidence - Topic 3686

Documentary evidence - Private documents - Photographs, movies, videotapes, etc. - Videotapes - The Ontario Court of Appeal reviewed generally how surveillance evidence was used in civil personal injury actions, including disclosure and production obligations and admissibility - The court stated that under the Rules of Court, the obligation to provide an affidavit of documents, which included listing privileged surveillance in the accompanying Schedule B, was mandatory - If the surveillance occurred before the affidavit of documents was served, the surveillance report had to be listed in the affidavit and requests for particulars had to be answered at examination for discovery - A party was also obliged to provide an updated affidavit of documents listing any new surveillance and to provide particulars upon request - The court stated that it was not suggesting that discovery or the requirement for an affidavit of documents could not be waived; however, an effective waiver should be express - See paragraphs 33 to 116.

Evidence - Topic 3686

Documentary evidence - Private documents - Photographs, movies, videotapes, etc. - Videotapes - The Ontario Court of Appeal reviewed generally the use and admission of surveillance evidence in civil personal injury actions - The court reviewed the procedure for admissibility where surveillance evidence was introduced for impeachment purposes - See paragraphs 77 to 100.

Evidence - Topic 3686

Documentary evidence - Private documents - Photographs, movies, videotapes, etc. - Videotapes - The plaintiff sued the defendant for damages for personal injuries sustained in a rear-end collision - Following a jury trial, the action was dismissed on liability grounds - General damages were provisionally assessed by the jury - The plaintiff appealed - The Ontario Court of Appeal allowed the appeal on the liability issue and ordered a new trial on damages because the improper use of video surveillance evidence led to trial by ambush - The trial judge did not require the defence to comply with the Civil Procedure Rules respecting the disclosure of the surveillance evidence and the provision of particulars - Leave should not have been granted to the defendant to use undisclosed surveillance evidence, even for the purpose of impeachment - Further, the surveillance evidence was not tested for admissibility for impeachment purposes - The trial judge did not exclude the surveillance evidence under rule 30.08, nor did he assess its relevance and require the defendant to comply strictly with the rule in Browne v. Dunn before admitting it - It was also impermissibly used for substantive purposes - There was no limiting instruction - See paragraphs 26 to 116.

Evidence - Topic 4717

Witnesses - Examination - Cross-examination - Displaying excerpts from expert reports on screen during cross-examination of witnesses - The plaintiff sued the defendant for damages for personal injuries sustained in a rear-end collision - Following a jury trial, the action was dismissed on liability grounds - The plaintiff appealed, arguing that the trial judge erred in permitting the defendant to project excerpts from medical reports on a screen in front of the jury during the plaintiff's cross-examination - The Ontario Court of Appeal allowed the appeal on other grounds, but discussed this form of cross-examination - The court opined that the defendant should not have been permitted to use the projected excerpts from the expert reports for a number of reasons - See paragraphs 117 to 134.

Practice - Topic 4597

Discovery - What documents must be produced - Particular matters - Surveillance tapes or reports - [See first and third Evidence - Topic 3686 ].

Torts - Topic 557

Negligence - Motor vehicle - Evidence and burden of proof - Rear end collisions - The defendant, who was driving a cement mixer in stop and go traffic on a major highway on a snowy evening, rear-ended the plaintiff, who was driving a pick-up truck - The defendant sued for damages for personal injuries - A jury found that the defendant had not been driving negligently and the action was dismissed on liability grounds - The plaintiff appealed - The Ontario Court of Appeal allowed the appeal - The trial judge erred in instructing the jury on the onus of proof applicable to rear-end motor vehicle collisions - The court reviewed the law on the onus of proof and discussed the jury charge to be used in rear-end collision cases - The court set aside the jury verdict and substituted a finding of liability against the defendant - See paragraphs 7 to 25.

Cases Noticed:

Toronto (City) v. Waite, [1954] O.J. No. 404 (H.C.), refd to. [para. 9].

Whiddon v. Wickstrom, [1948] O.J. No. 76 (C.A.), refd to. [para. 9].

DeCourcey v. London Street Railway, [1932] O.R. 226 (C.A.), refd to. [para. 9].

Beaumont v. Ruddy, [1932] O.R. 441 (C.A.), refd to. [para. 10].

Graham v. Hodgkinson (1983), 40 O.R.(2d) 697 (C.A.), refd to. [para. 11].

Hackman v. Vecchio (1969), 4 D.L.R.(3d) 444 (B.C.C.A.), refd to. [para. 12].

Martin-Vandenhende v. Myslik (2012), 287 O.A.C. 250; 2012 ONCA 53, refd to. [para. 13].

G.K. v. D.K. (1999), 122 O.A.C. 36; 38 C.P.C.(4th) 83 (C.A.), refd to. [para. 21].

Brochu v. Pond et al. (2002), 166 O.A.C. 353; 62 O.R.(3d) 722 (C.A.), refd to. [para. 23].

Vokes Estate v. Palmer et al. (2012), 294 O.A.C. 342; 2012 ONCA 510, refd to. [para. 23].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 45 O.R.(3d) 321 (C.A.), refd to. [para. 37].

Ceci et al. v. Bonk (1992), 56 O.A.C. 346; 7 O.R.(3d) 381 (C.A.), refd to. [para. 38].

Landolfi v. Fargione (2006), 209 O.A.C. 89; 79 O.R.(3d) 767 (C.A.), refd to. [para. 39].

Murray v. Woodstock General Hospital Trust et al. (1988), 31 O.A.C. 153; 66 O.R.(2d) 129 (Div. Ct.), refd to. [para. 41].

Machado v. Berlet (1986), 57 O.R.(2d) 207 (H.C.), refd to. [para. 41].

Beland v. Hill et al., [2012] O.T.C. Uned. 4855; 2012 ONSC 4855, refd to. [para. 42].

Arsenault-Armstrong v. Burke et al., [2013] O.T.C. Uned. 4353; 2013 ONSC 4353, refd to. [para. 42].

Niederle v. Frederick Transport Ltd., [1985] O.J. No. 1608 (H.C.), refd to. [para. 43].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 53].

Cromb v. Bouwmeester, 2014 ONSC 5318, refd to. [para. 57].

Marchese v. Knowles, [2009] O.T.C. Uned. 649 (Sup. Ct.), refd to. [para. 58].

Jones v. Heidel (1985), 6 C.P.C.(2d) 318 (Ont. H.C.), not folld. [para. 59].

McDonald v. Standard Life Assurance Co., [2006] O.T.C. 152; 34 C.C.L.I.(4th) 249 (Sup. Ct.), not folld. [para. 59].

Marchand v. Public General Hospital Society of Chatham et al. (2001), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), refd to. [para. 80].

Capela v. Rush et al., [2002] O.T.C. 257; 59 O.R.(3d) 299 (Sup. Ct.), refd to. [para. 85].

Burke v. Gauthier (1987), 24 C.P.C.(2d) 281 (Ont. H.C.), refd to. [para. 87].

Smith v. Morelly, [2011] O.T.C. Uned. 6834; 2011 ONSC 6834, refd to. [para. 89].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 95].

Lis v. Lombard Insurance Co., [2006] O.T.C. 580; 39 C.C.L.I.(4th) 108 (Sup. Ct.), refd to. [para. 98].

Ferenczy v. MCI Medical Clinics et al., [2004] O.T.C. 362; 70 O.R.(3d) 277 (Sup. Ct.), refd to. [para. 98].

Ferraro v. Lee (1974), 2 O.R.(2d) 417 (C.A.), refd to. [para. 131].

Pool v. Lehoux et al. (2007), 229 O.A.C. 33; 2007 ONCA 630, refd to. [para. 131].

Beck v. Blane et al., [1999] O.A.C. Uned. 29 (C.A.), refd to. [para. 131].

S & A Strasser Ltd. v. Richmond Hill (Town) et al. (1991), 45 O.A.C. 394; 1 O.R.(3d) 243 (C.A.), refd to. [para. 138].

Davies v. Clarington (Municipality) et al. (2009), 254 O.A.C. 356; 100 O.R.(3d) 66; 2009 ONCA 722, refd to. [para. 139].

St. Elizabeth Home Society v. Hamilton (City) (2010), 266 O.A.C. 136; 2010 ONCA 280, refd to. [para. 139].

McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 158 O.A.C. 214; 59 O.R.(3d) 97 (C.A.), refd to. [para. 139].

Statutes Noticed:

Rules of Court (Ont.), rule 30.03 [para. 55]; rule 30.03(1) [para. 52]; rule 30.03(2)(b) [para. 40]; rule 30.06, rule 30.07 [para. 55]; rule 30.07(b) [para. 55]; rule 30.08 [para. 34]; rule 30.08(1)(a) [para. 78]; rule 30.09 [para. 36]; rule 31.03(1) [para. 52]; rule 31.09 [para. 60]; rule 31.09(1)(b) [para. 55]; rule 31.09(3) [para. 78]; rule 48.04(1), rule 48.04(2) [para. 52]; rule 53.08 [para. 79].

Rules of Civil Procedure (Ont.) - see Rules of Court (Ont.).

Authors and Works Noticed:

Adair, Geoffrey D.E., On Trial: Advocacy Skills Law and Practice (2004), pp. 212 to 213 [para. 107].

Bangay, Brian M., Use of Surveillance at Trial, in Ontario Bar Association Insurance Law Newsletter (2007), No. 1, vol. 18, pp. 2 [para. 54]; 8 [para. 96].

Fuerst, Michelle, and Sanderson, Mary Anne, Ontario Courtroom Procedure (3rd Ed. 2012), pp. 954 to 956, 958 [para. 131]; 1043 to 1044 [para. 94].

McLeish, John A., and Oatley, Roger G., The Oatley-McLeish Guide to Demonstrative Advocacy (2011), pp. 249 to 250 [para. 92].

Mewett, Alan W., and Sankoff, Peter J., Witnesses (1991) (Looseleaf), pp. 14-30 to 14-31 [para. 107].

Morden, John W., and Perell, Paul M., The Law of Civil Procedure in Ontario (2nd Ed. 2014), para. 7.9 [para. 33].

O'Brien's Jury Charges (1998), generally [para. 8].

Sopinka, John, The Trial of an Action (2nd Ed. 1998), pp. 41 to 42 [para. 127].

Counsel:

David A. Zuber and Joseph Villeneuve, for the appellants;

Martin P. Forget, for the respondents.

This appeal was heard on June 26, 2014, by Laskin, Lauwers and Hourigan, JJ.A., of the Ontario Court of Appeal. Lauwers, J.A., delivered the following decision for the Court on February 17, 2015.