In the recent decision of Mir v Allstate, delivered on Oct 19, 2017, Master Brott has confirmed that the particulars of any surveillance conducted by the defence should be disclosed in the Affidavit of Documents. It is not enough to simply list the existence of surveillance in schedule “B”.
The Plaintiff is entitled to the date, time and location of the surveillance, as well as a description of the nature and duration of the activities depicted. The Plaintiff is also entitled to the names and contact information of the investigators.
The Court rejected Allstate’s contention that the defendant could wait to disclose the particulars until the examination of a representative of Allstate. The Court relied upon Ianneralla and held that the Rules require early and complete disclosure.
The lesson for Plaintiff’s counsel is to insist upon a sworn Affidavit of Documents early in the litigation and to demand that it include the particulars of any surveillance. It is no longer appropriate for Defendants to sit on surveillance until their client has been examined or until after the Plaintiff’s discovery.
This is a critical tool to help plaintiff’s counsel prepare their client for the discovery. With the details of the surveillance the client won’t be caught off guard and will be in the best position to give accurate testimony.
This decision is also particularly important where the Defendant was never examined, as is often the case with UIM Defendants. The Decision also clarifies that the obligation to provide an up to date Affidavit of Documents and to provide full particulars of any and all relevant surveillance survives setting the action down for trial. The Defendants cannot use rule 48.04 to shield themselves from their obligations.
Every plaintiff’s lawyer should be asking for an updated Affidavit of Documents immediately prior to trial. Obviously, it is in the plaintiffs interest to avoid trial by ambush and this is a critical tool to make sure all of the facts are known before evidence is called at trial.
In order to discuss this issue or disclosure obligations with respect to surveillance or any other questions regarding a personal injury claim. Feel free to contact D. Joel Dick at 416-572-3516, djdick@hshlawyers.com or Michael Henry at 416-361-0889, mjhenry@hshlawyers.com.
