Canada: Case Summary: Nemchin v Green

The Ontario Court of Appeal held that a trial judge erred in refusing to admit a defendant's video surveillance evidence in a personal injury action but concluded that had the video evidence been admitted it would not have affected the jury's decision. However, the Court dismissed the defendant's appeal because even if the video evidence had been admitted, it would not have affected the jury's verdict on damages.  Facebook posts of the plaintiff were held to have been properly excluded as having been disclosed to the plaintiff's counsel just 2 weeks before the trial.

Nemchin v Green, 2019 ONCA 634, per Rouleau, Lauwers J.A.

Facts and Issues

The Defendant Green turned left at an intersection into oncoming traffic and collided with the Plaintiff Nemchin. At trial, the jury determined that Green was 90% liable for negligence and fixed damages owing by Green to Nemchin at $700,000.

The main issue at trial was whether Nemchin's post-traumatic stress disorder ("PTSD") was caused by the collision and was significant, or whether it was the result of an earlier sexual assault. She also had some residual physical complaints she claimed resulted from the collision.

The trial judge made two rulings regarding Green's evidence at trial which Green claimed on appeal had led to an unjust jury result. The trial judge decided not to permit Green's counsel at trial to:

1. Show video surveillance evidence to the jury to establish that Nemchin's daily living activities were not impacted by PTSD as much as she had led the jury to believe; and
2. Show the jury 20 of Nemchin's Facebook posts as evidence to the same effect.

With respect to the video surveillance evidence, the trial judge gave three substantive reasons and several process reasons for refusing to admit the video evidence:

1. That the evidence was not of probative value because it did not contradict Nemchin's own evidence;
2. That the jury could not be expected to interpret the surveillance evidence meaningfully without expert opinion evidence; and
3. That a portion of the surveillance was served on Nemchin too late (two weeks before trial).

The trial judge provided procedural reasons for not admitting the video surveillance evidence:

1. That some of the surveillance was time stamped and some of it was not;
2. That the investigator who filmed the video did not know precisely how the video had been edited, so he was unable to verify on oath that the video was accurate;
3. That the videography firm's support staff picked out "stills" from the video that were included in the body of the reports and the descriptions of the stills contained subjective elements; and
4. That there were gaps in the video footage which created an incomplete or inaccurate depiction of Nemchin's activities.

The trial judge refused to admit 20 of Nemchin's Facebook posts because admitting them at that point of time in the trial would have caused significant prejudice to Nemchin in terms of the preparation and presentation of her case.  Defence counsel advised the trial judge that the Facebook posts had come about as a result of an access agreement between counsel whereby the plaintiff's Facebook account was re-activated so as to allow review of the posts. In fact, defence counsel was in error. The posts were dated before the start date of the access agreement. The 20 posts were culled from six volumes of Facebook posts.

The Court of Appeal identified the following three issues on appeal:

1. Did the trial judge err in excluding all of the surveillance evidence?
2. Did the trial judge err in excluding the Facebook evidence?
3. Taking into account the trial context, the evidence and the arguments, did the trial judge make errors sufficiently grave to warrant a new trial?

The Defendant appealed.

HELD: Appeal dismissed; the trial judge erred in excluding all of the surveillance evidence, but did not err in excluding the Facebook evidence, and the errors did not warrant a new trial.

1. The Court of Appeal held that the trial judge erred in excluding all of the video surveillance evidence of Nemchin performing various physical activities.
   1. The test for the admissibility of video evidence in Ontario requires the trial judge to be satisfied that the video presents a fair and accurate depiction and that the use of the video will not impair trial fairness.
      1. The trial judge's task is to "look at each piece of video evidence that the defence wants to put to the jury, and determine whether it is, in and of itself, admissible. This usually requires a discrete and granular assessment" (para 12).
      2. The test for the admissibility of surveillance evidence is the same whether it is to be used for impeaching a witness' credibility, or for the substantive purpose of showing the plaintiff's true functionality in a personal injury action.
   2. The trial judge erred in her approach of assessing admissibility of the video evidence as a whole instead of taking a discrete and granular approach to each video excerpt Green's counsel wanted to put into evidence.
   3. The trial judge erred in each of her substantive and process grounds for refusing to admit the video evidence.
      1. The trial judge erred in concluding that video could only be shown to the jury if it contradicted Nemchin's evidence. The evidence was arguably available to provide context and to qualify her testimony on her functionality.
      2. The trial judge's analysis was lacking in failing to consider the necessity of expert opinion evidence on the video footage and failing to explain why she admitted a similar video tendered by Nemchin without requiring expert opinion evidence.
      3. The trial judge failed to assess the late-disclosed video surveillance to determine whether its admission would prejudice the plaintiff.
      4. The trial judge's process reasons for excluding the video surveillance were all matters of weight for the jury to consider, and not justifiable reasons for excluding the evidence.

2. The Court of Appeal held that the trial judge did not err in excluding the Facebook evidence:

[68]  On the facts as she understood them concerning the origin of the Facebook posts that the defence sought to put to Ms. Nemchin, the trial judge did not err in her ruling, despite the mandatory wording of r. 53.08. As noted earlier, this issue was canvassed in Iannarella, at paras. 77-90. Given that the issue of the admissibility of the Facebook posts did not arise until towards the end of Ms. Nemchin's cross-examination and given the confusion around their origin, which can only be laid at the feet of trial defence counsel, the trial judge's discretionary ruling was reasonable.

[69]  By way of aside, the approach that Leach J. took in relation to the late-produced surveillance in Ismail would otherwise have application. The trial judge was required to consider whether there were any realistic or meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise by the admission of such evidence at trial.

3. That said the Court of Appeal held that the trial judge's error in excluding all of the video surveillance evidence did not warrant a new trial.
   1. Even if the excluded surveillance evidence had been admitted, it likely would not have affected the jury's verdict on damages because it did little to contradict Nemchin's evidence about her physical or mental functionality or the PTSD that resulted from the collision.

Commentary 

This decision provides a review of the principles regarding the admissibility of surveillance evidence in personal injury actions. Of particular importance is the Court of Appeal's statement that a trial judge considering the admissibility of surveillance evidence ought to take a discrete granular approach in assessing each video excerpt a party seeks to put into evidence rather than considering the video evidence as a whole.

Additionally, as the Court notes at paragraph 61, quoting Michelle Fuerst & Mary Anne Sanderson in Ontario Courtroom Procedure, 4th ed (Toronto: LexisNexis Canada, 2016) at 1097: "A video recording is admissible as soon as it is established that it depicts the scene and has not been altered or changed – any other factors, such as the integrity of the recording or the identity of a speaker, are matters for the trier of fact and go to weight only, not admissibility."