Ontario Court of Appeal Corrects Car Crash Trial Judgement
In January 2015, the Ontario Court of Appeal issued its decision in Iannarella v. Corbett. While the facts seem simple, the trial seems to have gone badly wrong for the plaintiffs. Lauwers J.A., writing for a three-judge panel, found much to correct and criticize. The judgment has been presented in the National Post as a clampdown on the use of surveillance evidence by defendants in auto collision cases. At issue was the liability for a rear-end collision: a concrete truck driven by the defendant rear-ended the plaintiff's vehicle on a snowy, icy night. Highway 427 was buffeted with mini-whiteouts and the traffic was stop-and-go. Mr. Iannarella suffered a rotator cuff injury and chronic pain, and has had two surgeries related to the accident. Generally, the driver of the rearmost car must prove that his negligence did not cause the collision. However, the trial judge's instructions to the jury had repeatedly pointed out Mr. Iannarella's burden of proving, on a balance of probabilities, that Mr. Corbett was negligent. Trial counsel had moved for a directed verdict on liability, but the trial judge rejected this motion. On the facts, the Court of Appeal substituted a finding of liability. Due to the trial judge's error of law with respect to onus of negligence, Mr. Iannarella's lawyer's failure to object to the jury charge was not fatal to the appeal. Other irregularities occurred as well. The plaintiffs had waived examinations for discovery and did not request an affidavit of documents. To sum, up here is what should have happened:
- The defendants should have provided an affidavit of documents, regardless whether one was requested;
- They should have disclosed the existence of video surveillance footage, even if it was created after the matter was set down for trial;
- If they did not disclose the footage's existence or share it with the plaintiffs, the trial judge should have ordered at the trial management conference that the videos or a summary thereof be produced.
- If the affidavit of documents had not been produced, the evidence within it should only have been used to impeach a witness, or with leave of the court (requiring the trial judge to consider the impact of the footage on the trial's fairness, and to refer to Rule 53.08).
- Defence counsel should have put to the plaintiff a detailed series of questions on each incident shown in the surveillance.
- Rule 30.03(1), by failing to serve their affidavit of documents;
- Rule 30.07(b), by failing to disclose surveillance conducted after matter was set down for trial; and
- Rule 31.09, by not meeting their obligation to correct answers given on an undertaking.
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