Understanding the basic rules and procedures of civil litigation in Ontario ensures you are aware of civil laws and comprehend legal proceedings. However, keep in mind that the rules and procedures that guide civil litigation are constantly evolving.
One central concept to court cases is the process of discovery. Discovery occurs during the pre-trial phase. As the name suggests, it provides an opportunity for one side to ‘discover’ the evidence that the opposition intends to present at court. Each lawyer in a civil case can also interview, under oath, the opposing sides’ witnesses.
Affidavit of Documents
Prior to a civil trial, both the plaintiff and the defendant need to create an affidavit of documents. These documents contain all the evidence that is relevant to the case. The affidavit of documents is split into different sections, such as documents that will be shared with the opposing party and documents that are considered ‘private’. Overall, any piece of evidence that relates to the facts of the case will need to be disclosed.
Note: The rules regarding what must be shared have changed over time.
The rules regarding video evidence have recently changed. In Mir v. Allstate, which was delivered on Oct 19, 2017, reaffirmed that lawyers can no longer simply cite video surveillance evidence in their affidavit of documents. Instead, they have to list the particulars of that evidence in discovery.
That means that the plaintiff is entitled to the time, date, and location of when the video was recorded, as well as a full description of the video. A simple admission that such evidence exists is not adequate.
In an earlier case, Arsenault-Armstrong v. Burke et. al. 2013, it was determined that video surveillance evidence is ‘discoverable’ even if it is labelled as impertinent. For this reason, even if the surveillance is not used as evidence, it still may be relevant to both parties for understanding the case.
Updating the Affidavit of Documents
Furthermore, as Iannarella v. Corbett showed, if surveillance occurs after discovery then the party that has conducted the surveillance must provide an updated affidavit of documents – even if the opposing party waives examinations for discovery and does not request an updated affidavit of documents.
What Do These Changes Mean for You?
Discovery and the affidavit of documents are designed to help ensure a fair and fast trial. By allowing both parties access to the evidence that will be used in the trial should encourage parties to settle before going to trial, and if a trial does occur it ensures that it’s conducted fairly. The rules surrounding video evidence should mean that such evidence is not hidden before trial or used to ambush the other party at trial.
Regardless, personal injury lawyers should seek access to any video surveillance evidence early in the pre-trial process in order to present the strongest case possible.
Navigating the complex legal procedures that occur before, during, and after a trial – including video evidence – requires not just knowledge but also experience. At Zayouna Law we are a personal injury law firm with a track record of success. Contact our team of lawyers today!