Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, allowing the introduction of video surveillance evidence despite counsel failing to disclose this evidence on their list of documents.
In today’s case (Karpowicz v. Glessing) the Plaintiff was involved in a collision and sued for damages. The Defendant “retained a private investigator and, on June 27, 2016, filmed a short video of the plaintiff at the Vancouver International Airport accompanied by his wife and children.” Plaintiff’s counsel was provided the video ahead of a mediation but the document was never listed on the Defendant’s formal list of documents. The Plaintiff objected to the video’s introduction at trial but the Court ruled the evidence was admissible as there was a lack of prejudice from the failed disclosure. In reaching this conclusion Madam Justice MacNaughton provided the following reasons:
 I have concluded that the video evidence should be admitted. While I agree that the defendant had a clear obligation under Rule 7‑1(9) to list the video as a document as soon as it came into his possession, I accept defence counsel’s representation that the failure to list the video was not for a tactical advantage at trial. Counsel frankly acknowledged that it was an oversight on her part, and as soon as the plaintiff raised the issue, the video was listed in the supplementary list of documents. The late listing of the video has not caused the plaintiff prejudice.
 If it had been listed in the summer of 2016, presumably it would have been done so as a privileged document. The plaintiff would have known of its existence, but not its content, as the video was not required to be disclosed until the defendant determined to rely on it at trial. On that determination, the video was disclosed to the plaintiff. The disclosure was in advance of the deadline for disclosure in Rule 12‑5(10).
 The plaintiff has had time to consider the video and to prepare to address it in his evidence at trial. The defendant had the right to investigate the plaintiff’s claims and the video is relevant to the issues the plaintiff has put before the court.
 As to the issue of privacy, the video was taken at Vancouver International Airport at the passenger pickup area. The plaintiff and his family had no reasonable expectation of privacy while at the airport. The video focuses on the plaintiff, and the plaintiff’s spouse and the children are incidental to that focus or in the background of the video. Counsel for the defendant has obscured the faces of the children so that they are not identifiable.
 In all these circumstances, I conclude that the video ought to be admitted.
Interesting reasons for judgement were released today dealing with the issue of whether a plaintiff in an ICBC tort claim has to produce materials from previous legal proceedings.
In this case the Plaintiff alleged injury as a result of a 2005 BC motor vehicle accident. The Plaintiff was involved in previous legal proceedings. The defence lawyer asked the court for production of 3 documents which were contested, specifically
(a) a copy of the medical report of Dr. Bloch requested by Ms. (the Plaintiff;s) counsel in a pervious proceeding unrelated to this motor vehicle accident (the “Great West proceeding”);
(b) a copy of submissions prepared by the plaintiff, dated July 11, 2005 and September 23, 2005, regarding a claim which she brought against Mr. Murray in the Surrey Registry of the Provincial Court of British Columbia;
(c) a copy of the transcript of the plaintiff’s examination for discovery in the Great West proceeding.
The court first dealt with the issue of whether the current defendant was entitled to the plaintiff’s examination for discovery transcript from a previous legal claim. The court reproduced paragraphs 51 and 53 of the leading Supreme Court of Canada Decision dealing with the ‘implied undertaking’ of confidentiality of examination for discovery transcripts, specifically:
51. As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant’s privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d’Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd, at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country. The effect of the Harman decision has been reversed by a rule change in its country of origin.
53. I would not preclude an application to vary an undertaking by a non-party on the basis of standing, although I agree with Livent Inc. v. Drabinsky that success on such an application would be unusual. What has already been said provides some illustrations of potential third party applicants. In this case the Attorney General of British Columbia, supported by the Vancouver Police, demonstrated a sufficient interest in the appellant’s transcripts to be given standing to apply. Their objective was to obtain evidence that would help explain the events under investigation, and possibly to incriminate the appellant. I think it would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant’s right to silence and the protection against self-incrimination afforded her by the criminal law. Accordingly, in my view, the present application was rightly dismissed by the chambers judge. On the other hand, a non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed. Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the [page187] message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose.
The court in this case refused the defendants motion to produce the plaintiff’s previous discovery transcript and the plaintiff’s previously obtained medico-legal report holding that
On balance, the plaintiff’s privacy interest outweighs the defendants “fishing expedition” as referred to by Binnie J.A. I am also of the view that the same must be said of the medical report of Dr. Bloch. That report was a document created for the previous proceeding. There is no evidence before me to indicate that it was incorporated into the record of that proceeding, in fact I am advised that the action settled before trial. In the absence of evidence to the contrary, I would expect that such report would have been created and received subjected to a claim of privilege; there is no evidence before me as to the waiver of such privilege. The defendants’ application for production of the discovery transcript and the medical/psychiatric report is dismissed.
The court however, did order that the transcript of the plaintiff’s previous submissions in a cmall claims court action be produced holding that:
The defendants’ application for a copy of the plaintiff’s submissions in the provincial court proceeding is, however, a different matter. That action went to trial; the plaintiff apparently made various oral submissions and representations to the court and, I assume, gave evidence. In addition she is said to have provided written submissions dated July 11, 2005 and September 23, 2005. In my view, any undertaking regarding those submissions was spent by their use in that proceeding.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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