Law Times

Law Times • sepTember 13, 2010 BRIEF: PERSONAL INJURY PAGE 13 close to the maximum award available in a personal injury case that lawyers say highlights the overwhelming value of vid- eo evidence. Lester Davies of Davies McLean Zweig in Toronto rep- resented plaintiff Hui Jun Jia in the case. He notes the mat- ter was brought through the simplified rules, meaning the maximum award was $50,000. His client received $49,540. Davies emphasizes that the altercation leading to the pay- out was captured on videotape and suggests that type of evi- dence will play a growing role in personal injury matters. "The case did not have to turn on eyewitness testimony or 'he says, she says,'" Davies points out. "Almost all of the event was captured on surveillance video, and I think that's a trend more and more in society. People have cellphones with video cameras and are taking pictures of events. There are surveillance cameras in the lobbies of apart- ment buildings, in shopping malls, and grocery stores, et cetera. So a lot of incidents that you previously didn't have video evidence for, it's now becoming more common." The incident underlying Jia v. Toronto Standard Condo- minium Corp. No. 1479 took place on Jan. 31, 2007. It fol- lowed Jia's "forcible arrest and eviction" by Donald Keeley, a retired Toronto police officer who worked as the superin- tendent of the condo complex, according to the judgment of Justice Lois Roberts. Jia, a real estate agent with Re/Max Crossroads Realty Inc., went to the condo to meet a pair of clients who had sold a unit and needed to co-ordinate the retrieval of keys and take care of other matters following the sale. The clients became an- gry when they were unable to get access to the unit from a se- curity guard and were forced to get keys from the tenant, who no longer lived in the build- ing. With the security guard's permission, Jia remained in the lobby of the building while the clients left to get the keys. While she waited for them to return, Keeley asked Jia to leave. When she didn't com- ply immediately, he "physically ejected her from the inner lob- by," Roberts wrote. The judge agreed that Jia had suffered severe bruising, three broken ribs, and "significant emotional distress" due to the incident. The judge found the case hinged on a set of questions. To that end, she ruled Jia wasn't trespassing and that Keeley had no reason to ask her to leave or eject her from the premises. The judge also found the 230-pound Keeley Untitled-3 1 Condo injury case highlights expanding role of video O BY ROBERT TODD Law Times ntario's Superior Court of Justice has granted a woman used "excessive force" on Jia, who weighed less than half of that amount. In addition, Roberts de- termined Jia couldn't have expected her "mild resis- tance" to Keeley's request for her to leave would prompt the altercation. The judge went on to award Jia $30,000 for gen- eral damages, $8,500 in ag- gravated damages, and about $11,400 in pecuniary dam- ages. Davies says the existence of video evidence of the in- cident proved "dramatically powerful" in court. He was able to show it to the judge via projector through a lap- top computer, which allowed an easy, second-by-second demonstration of the events as they unfolded. "It was directly contradic- tory to Mr. Keeley's evidence," says Davies, who notes that without the video, the judge would have been forced to "The existence of the video of the incident was crucial to the case and it was crucial to the judge's decision," Davies says. Alf Kwinter, a founding partner of Singer Kwinter LLP, says video evidence has traditionally been of great use in certain personal injury cases, such as slip-and-fall incidents. He notes it can be of particular importance for plaintiffs who fall in an area where no witnesses are pres- ent. "In these slip-and-fall cas- 'The existence of the video of the incident was crucial to the case and it was crucial to the judge's decision,' says Lester Davies. weigh the demeanor of the wit- nesses on the stand. As a retired police officer, Keeley would have had a powerful voice in court, he points out. es, a lot of relevant evidence deals around the proper steps the occupier took to keep the premises either clear of ice and snow or not full of pot- holes and things like that," says Kwinter. "If you have video evi- dence to show what some- thing looked like, it's invaluable to the court as long as you can show that the tape has not been altered or in any way edited and it's a fair representation of what was taken." Having said that, Kwinter believes the judge in the Jia case would have ruled in the plaintiff's favour even in the absence of video proof. "The judge rightly took into account [the question of] why would this person who was waiting in a lobby . . . have any reason to get so upset? It didn't make any sense," says Kwinter. "It just didn't fit in with the character of this person either. She's a real estate agent waiting for a key." Michael Burgar of Adair Morse LLP in Toronto repre- sented the condo corporation and Keeley. While he says the case boils down to a "credibility dispute" between Jia and Keeley, he notes the defendants won't be appealing Roberts' ruling. "I'm sure that Mr. Keeley is disappointed by the court's findings about his testimony but accepts the result," says Burgar. LT www.lawtimesnews.com 9/8/10 11:02:37 AM

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