In a decision that will be of great interest to the insurance industry, the Court of Appeal ordered a new trial in a personal injury action. The defence won on all three grounds of appeal: (a) the trial judge’s refusal to admit surveillance videotape; (b) inflammatory comments made in the course of the closing address to the jury by plaintiff’s counsel; and (c) the trial judge’s failure to provide the jury with a balanced view of the defence medical evidence.
Landolfi v. Fargione arose out of a motor vehicle accident. The defendant had gone through a red light and collided with the plaintiff’s vehicle. At trial, she did not deny that she had been negligent but she contended that the plaintiff had also been negligent. Damages were in issue too.
The plaintiff’s complaints were of neck and back pain. There was also evidence of a mild closed head injury and chronic pain syndrome.
The defence medical evidence was very strongly in the opposite direction. Two defence doctors actually expressed the opinion that the plaintiff was malingering. One said the plaintiff’s was “an Academy Award performance”.
Today’s decision of the Court of Appeal contains a detailed discussion of the proper use of surveillance videotape. Counsel for the defence had sought to use the surveillance footage to impeach the credibility of the plaintiff. The trial judge, Justice David Salmers, refused to let him do so. He gave several reasons for his ruling:
(i) the videos should not be used by the defence for impeachment purposes or seen by the jury, “unless they would be otherwise admissible as substantive evidence”;
(ii) the defence failed to prove, on a balance of probabilities, the accuracy of the videotapes “in truly representing the facts”, the “fairness” of the videos and the “absence of any intention to mislead”;
(iii) the quality of the videos, especially those made on December 5 and December 12, 2001, was inadequate because the videos were “somewhat grainy” and “otherwise unclear and make it impossible to observe Mr. Landolfi’s facial expression at any time. His facial expressions might show if Mr. Landolfi was or was not experiencing neck pain”;
(iv) the videos did not appear to be continuous or complete: “[T]he tape does not show what occurred. If the videotapes do not show everything, something relevant may be missed”; and
(v) the defence disclosure letters concerning the videos were deficient because they did not reveal that Landolfi’s facial expression could not be seen on the videos and that the videos did not always permit the determination of what Landolfi was doing at the time that he was videotaped, and no mention was made in the letters of Landolfi’s neck movements.
(It is important to know a bit of background about how surveillance is permitted to be used at trial. Litigation privilege can be claimed on the tapes or DVDs and accompanying reports. This means that the tapes and reports need not be produced to the plaintiff’s solicitor. If privilege is claimed, the defence must waive the privilege before the case is set down for trial or it will be precluded from using the tapes as substantive evidence (that is, to prove an affirmative proposition) without leave of the trial judge. On the other hand, the defence is entitled to use surveillance video at trial to impeach the credibility of the plaintiff. For that limited purpose, it is not required to waive privilege. In this case, it was the latter objective that was being pursued by the defence lawyer, but the trial judge still refused to allow the evidence to be shown to the jury.)
The Court of Appeal held that Justice Salmers had erred in refusing to admit the tapes. In excluding the videos, he had mistakenly relied on cases in which the defence had tried to use the tapes as substantive evidence, not just to impeach. Justice Salmers had also wrongly applied a more onerous test to the admissibility of video surveillance than to other evidence.
The Court of Appeal observed that “while the probative value fo the video evidence may not have been high, it was not trifling” and should have been put to the jury.
In his closing address to the jury, counsel for the plaintiff had accused the defence lawyer of “telling whoppers” at the trial. He also broadly and repeatedly intimated that “the real defendant” had substantial resources.
The court observed that although it is no longer the case that mentioning to the jury that the defendant is insured will automatically result in a mistrial, the conduct of plaintiff’s counsel here went beyond permissible bounds. In particular, the court felt that the “danger existed that the jury would believe that the ability of the ‘true’ defendant in the case to pay damages was relevant to its assessment of damages. This is an extraneous and improper consideration.”
The court went out of its way to condemn the ad hominem attacks by the plaintiff’s lawyer on defence counsel:
 There is also a further aspect of this case about which it is appropriate to comment. At trial, plaintiffs’ counsel resisted the defence mistrial motion, in part by seeking refuge in the premise that a civil jury trial is “not a tea party”. In addition, at the conclusion of trial, when he was properly (and somewhat mildly) chastised by the trial judge for his attack on defence counsel in his closing address, plaintiffs’ counsel made the remarkable response that trial counsel “have got to do what you have got to do”.
 These statements were disdainful of the court and of counsel’s obligations as an advocate and officer of the court, obligations that are owed to the court, the litigants and opposing counsel: see for example, R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.) at paras. 83-84. They were also misconceived. Although it is true, in the language coined by Riddell J. in Dale v. Toronto R.W. Co., supra, at p. 108, that, “a jury trial is a fight and not an afternoon tea”, a civil trial is not ‘open season’ for attacks on opposing counsel and litigants. This court recently stressed in Felderhof, at paras. 95 and 96, that the professional obligation of counsel to keep his or her rhetoric at trial within reasonable bounds has “nothing to do with trials not being ‘tea parties’ ”. Nor does a hard fought trial, like this one, license counsel to make inappropriate and prejudicial submissions to the jury, including those that cast aspersions on the integrity of opposing counsel.
(The Court of Appeal’s reasons were written by Madam Justice Eleanor Cronk, concurred in by Justices David Doherty and Jean MacFarland. Justice Cronk was formerly President of the Advocates’ Society, which has pressed for civility among lawyers. She seems to be continuing her efforts along these lines.)
The final ground of appeal was the trial judge’s failure to fairly review, in his charge to the jury, the defence medical evidence. Once again, the court agreed that the trial judge’s actions constituted reversible error:
In these circumstances, I conclude that the trial judge provided the jury with almost no assistance concerning the defence medical evidence and how it supported the defence claim of malingering by Landolfi. In effect, the defence case on damages was never squarely put to the jury.
The Court of Appeal concluded that the combined effect of the above factors had resulted in a miscarriage of justice sufficient to warrant a new trial.