ICBC Surveillance Barred From Trial For Late Disclosure

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering that no surveillance evidence is to be used at a trial where the existence of that evidence was not adequately disclosed.

In the recent case (Cavouras v. Moscrop) the Plaintiff was injured in a collision and sued for damages.  ICBC, the insurer for the Defendant conducted surveillance of the Plaintiff and this was not disclosed in a timely fashion in the course of litigation.  The Defendant conceded that they did not intend to use the evidence at trial but the Court, via a trial management conference, concluded it would be appropriate to go further and order that the evidence simply could not be used in these circumstances.

In reaching this decision Master Muir provided the following reasons:

[35]         Here, the defendant had failed to list promptly the video surveillance evidence obtained up to two years previously. Even when the defendant provided an amended list of documents after the TMC, it listed only the Investigation Reports and did not list the video documents that obviously exist.

[36]         Defence counsel have an obligation to know of any surveillance and ensure all such documents are included in an amended list of documents promptly after the documents are obtained. Failure to do so will, among other things, impair the ability to properly conduct trial management at a TMC and, as in Houston, without court order result in the surveillance being inadmissible.

…

[41]         In this case, the defendant did not list any investigators as witnesses in the defendant’s trial brief. An amended list of documents disclosing privileged surveillance reports produced in the last two years was provided only after the TMC had been conducted. No video was identified in the amended list of documents.

[42]         The time allocated for this trial is already completely consumed by the evidence anticipated, without consideration of surveillance.

[43]         Regardless of the assurance provided by counsel for the defendant that the defendant did not intend to use the surveillance at trial, as things stand, there is nothing preventing the defendant from revisiting that position and attempting to convince the court that later acquired evidence or even the earlier surveillance evidence should be allowed.

[44]         If that occurs, the trial will not be able to be completed in the time allocated.

[45]         The power to make orders at a TMC is broad. Rule 12-2(9) provides, among other things:

Orders at a trial management conference

(9) The judge or master presiding at a trial management conference may consider the following and, without limiting the ability of the trial judge or master to make other orders at trial, may, whether or not on the application of a party, make orders respecting one or more of the following:

…

(q) any other matter that may assist in making the trial more efficient;

(r) any other matter that may aid in the resolution of the proceeding;

(s) any orders the judge or master considers will further the object of these Supreme Court Civil Rules.

[46]         I conclude, in the circumstances of this case, that it is open to me to order that no surveillance evidence is to be used at the trial of this matter, and I so order.