Law Times

Page 4 March 2, 2015 • Law Times www.lawtimesnews.com Court highlights disclosure obligations for surveillance evidence NEWS Re-Elect Barbara Murchie Re-Elect Barbara Murchie For Sensible and Effective Regulation For more, go to: electmurchie.wordpress.com A bencher committed to: ¾ A competent, honourable and diverse profession with higher entry standards ¾ Proportional, fair and effective regulation ¾ Increased access to justice through support for soles and smalls and increased legal aid ¾ Support for local libraries A bencher with a track-record for: ¾ Taking her duties as a bencher and LawPro director seriously ¾ Sitting as an adjudicator on panels hearing discipline matters ¾ Supporting the advancement of women and working on competence initiatives BennettJones-BarbaraMurchie_LT_Mar2_15.indd 1 2015-02-25 12:13 PM CBA to lobby government on end-of-life issues BY YAMRI TADDESE Law Times he Canadian Bar Association will lobby the provincial and federal govern- ments to put systems in place that will clarify the rules around end-of-life decision-making in light of the Supreme Court's decision in Cuthbertson v. Rasouli. Citing a "lack of clarity" around the issue, the association passed a resolution at its recent mid-winter meeting that would, if successful, see health-care stakeholders de- velop a framework that respects a list of principles it outlined. Among the principles is the notion that when health-care providers offer more than one medically appropriate course of treatment to a competent patient or a substitute decision-maker, they may "decide the course of treatment even if it is not the course of treatment recommended by the health providers." Another principle says patients may not demand a treatment not offered to them because an ethical and competent medical professional doesn't find it's medically ap- propriate or in their best interest. The CBA also wants to see patients and their substitute decision-makers have quick access to the courts or specialized boards when the parties can't resolve disputes. "What we wanted to do is to emphasize the importance of the person, the adult, and their wish and being able to communicate their wishes but at the same time talk about the obligation of the medical community to provide all the options that are available," says Kelowna, B.C., lawyer Geoffrey White, who was part of the committee that worked on the resolution. White says the CBA also wants to highlight the proper interaction between an adult patient and a medical provider, "specifically [that] it's not the job of the medical pro- vider to tell the patient what to do but to give them the options and the adult patient will be able to select from those options." Human rights lawyer Hugh Scher, who was an intervener in Rasouli, says the resolu- tions are helpful. "I was pleased that they're not getting into euthanasia and assisted sui- cide because I don't think that would be helpful. The Supreme Court made its ruling, so I don't think it's up to the CBA to take a position on that subject," says Scher. The association may, however, be able to assist in terms of the implementation of the recent assisted-suicide ruling in order to guard against abuse, he adds. White says the CBA has been working on another resolution on laws around as- sisted suicide that didn't receive enough support to pass. He notes the committee will continue to work on that resolution in order to deal with questions such as whether a physician could opt out of participating in assisted suicide. White says if doctors can opt out, the committee is considering whether they should have to make a referral to another physician. Scher warns against revisiting some of the issues the top court has already answered, including the question of doctors' ability to unilaterally terminate ongoing life support and other treatment without consent from substitute decision-makers or the oversight of the Consent and Capacity Board. "There are some who are promoting a revisiting of this question. It would be ill advised and inappropriate for the bar to be effectively suggesting a revisiting of that issue, which I think the Supreme Court dealt squarely with." LT T BY YAMRI TADDESE Law Times he Ontario Court of Appeal has highlighted the rules around the use of surveillance evidence in personal injury matters to avoid what it called "trial by ambush." The decision will be "the leading case" on the issue for some time to come, according to Lenczner Slaght Royce Smith Griffin LLP partner Ryan Breedon. In Iannarella v. Corbett, the court re- cently ordered a retrial in a case in which the defendants had collected dozens of hours of surveillance evidence to show the plaintiff had use of his left hand contrary to his claim. The defendants didn't disclose the surveillance evidence in an affidavit of documents, effectively robbing the plain- tiffs of the chance to reconsider a settle- ment or prepare sufficiently for cross- examination, the court found. "The trial judge's refusal to order disclosure of the surveillance evidence left the appellants scrambling from pillar to post trying to salvage something from the surveillance evidence debacle, unsuccessfully," Justice Peter Lauwers wrote on the court's behalf. He added: "In my view, the improper use of the surveillance evidence gave rise to a form of trial by ambush. This came about because the trial judge did not re- quire the defence to comply with the Rules [of Civil Procedure] in relation to the disclosure of the surveillance evidence and the provision of particulars." By the time the issue of admissibility of the surveillance evidence arose in the jury trial, the appellants had already lost the benefits they might have otherwise had if the other side had disclosed the particulars of the surveil- lance to them in advance, according to Lauwers. "The appellants did not have the benefit of considering the surveil- lance in assessing the possibility of pre-trial settlement, and their counsel had little time to prepare an appropri- ate examination in chief of [the plaintiff ] Mr. Iannarella." The court also found the defendants hadn't met the test for admitting the surveillance evi- dence, one of which is the claim of privilege. The defendants could have only claimed privilege during the disclosure of the evi- dence, something that never happened, ac- cording to the court. "But Rule 30.03 [of the Rules of Civil Procedure] requires a party's assertion of privilege to be made in the affi- davit of documents; this mechanism serves to link the rules, which work together to require adequate disclosure. The link was severed in this case, to the appellants' preju- dice," the court said. While the defendants' counsel claimed the failure to include the surveillance evi- dence in the affidavit of documents was "in- advertent," the court found the lawyer "did not hesitate to capitalize on that failure" during the trial. Breedon says the decision clarifies the state of the law in an area that's often subject to much scuff le. "The conduct of the defendant is not that uncommon, I think. So there was some ambigu- ity about what would be produced and there'd of- ten be skirmishes about whether and how the surveillance evidence can be used because it can be quite important in personal injury trials," says Breedon. "It certainly will be an important decision for anybody who practises in this area to understand. It's really the best and clearest statement of what the parties' obli- gations are with respect to the evidence." In addition to invoking a stricter ap- plication of the rules around disclosure of surveillance evidence, the court also restricted the use of it for the purpose of discrediting a witness. "The trial judge's failure to provide a limiting instruction was an error since it increased the risk that the jury would use the surveillance as substantive evidence of Mr. Iannarella's functionality," the court said. According to lawyer David Share, that's the part that made things worse for the defendants in this case. "[The defendants' lawyer] had made reference to the surveil- lance as evidence in his closing argument," says Share. "When [surveillance evidence] is allowed on that basis, it is supposed to be al- lowed solely for the purpose of impeaching the credibility and here it went beyond that." The appeal court acknowledged the plaintiffs hadn't requested an affidavit and was somewhat critical of that fact. Still, the absence of such a request doesn't remove the disclosure obligation, Lauwers found. "I am alert to the Supreme Court of Can- ada's call for a civil litigation 'culture shift' to make the conventional trial process more timely and affordable, and the waiver of a party's strict rights can play an important role in expediting cases. I do not suggest that a party cannot waive discovery. "Discovery is often waived in rear-end motor vehicle collisions because the defen- dant's liability is not disputed; where dam- ages are the real issue, the individual defen- dant typically has nothing to provide by way of evidence. I also do not suggest that the requirement for an affidavit of documents cannot be waived. There may be simple cas- es where that makes good economic sense. "However, an effective waiver should be express, rather than implied solely from the fact that the matter was set down for trial, as appears to have happened in this case." LT 'It certainly will be an important decision for anybody who practises in this area to understand,' says Ryan Breedon. T

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