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Juries (Civil) - Voir Dire

. Nash v. Aviva General Insurance Company

In Nash v. Aviva General Insurance Company (Div Court, 2022) the Divisional Court, in the course of responding to a ground of a LAT administrative appeal, made some useful comments on the case of Iannarella v. Corbett (Ont CA, 2015) and the admission of surveillance evidence in a civil jury trial:
[83] The Appellant relies on , 124 O.R. (3d) 523, 2015 ONCA 110 to submit that the Respondent’s surveillance ought not to have been admitted, as the Vice Chair did not go through the analysis to determine its admissibility.

[84] Iannarella is of limited application here as it involved production and use of surveillance in a personal injury action before a jury. In that case, the appeal was allowed because the trial judge erred in failing to hold a voir dire on the fairness, representativeness, and admissibility of the surveillance evidence, to view the material before it was played for the jury and used in the Plaintiff's cross-examination, and where the Plaintiff objected to the surveillance going before the jury. The Court of Appeal also found that the trial judge erred by not requiring the defendant's trial counsel to lay an adequate factual foundation that the surveillance evidence could be used to contradict. Finally, defence counsel's jury address made substantive use of the surveillance evidence, and the trial judge failed to give the jury a limiting instruction about its use.

[85] The Court set out the procedure under the Rules of Civil Procedure by which surveillance must be disclosed (and was not), and how the foundation should be laid for its introduction, in a civil action before a jury.


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