IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140205

Docket: M095398

Registry:
Vancouver

Between:

Ann Chong

Plaintiff

And

Chi Yong Lee and
John Lee

Defendants

Before:
The Honourable Mr. Justice Pearlman

Oral Ruling on Application for Disclosure of Video
Surveillance Reports and Statements of Account

[1]            
THE COURT: In this motor vehicle accident action, the defendant
intends to lead videotape surveillance evidence and to call two private
investigators to give evidence with respect to video surveillance of the plaintiff.

[2]            
The plaintiff has served notice that she intends to oppose the
admissibility of the video evidence on the basis that it does not meet the
three‑part test in R. v. Creemer and Cormier, [1968] 1 C.C.C. 14
(N.S.C.A.).  That test has determined that the admissibility of this type of
evidence depends on its accuracy in truly representing the facts, fairness and the
absence of any intention to mislead, and verification of the video evidence on
oath by a person capable of doing so.

[3]            
The plaintiff submits that the report or reports of the videographers
and their statements of account will contain relevant evidence relating to the
dates and times of the surveillance performed.  The plaintiff seeks the disclosure
of those reports and statements of account in advance of the voir dire,
in order to assist in preparation for cross-examination of the private
investigators.

[4]            
The defence says that it would be unfair for the defendants to be
required to disclose these documents in advance of the witnesses testifying.  The
defendants rely upon the decision of Mr. Justice Bauman, as he then was, in Adamson
v. Charity, 2007 BCSC 671, as authority that they are not required to
produce surveillance reports in advance of their witnesses testifying.

[5]            
In Adamson, the plaintiff put forward three arguments against the
admissibility of video evidence on the voir dire held in that case.  The
first was a failure to meet the three‑part test in Creemer and Cormier. 
The second was a submission that the video evidence was inadmissible as a
result of the defendant’s late disclosure of its existence in its supplemental
list of documents.  The third ground was a submission that the video
surveillance evidence was inadmissible by reason of the defendant’s failure to
comply with what was then Rule 40(13), because the videotape evidence was
incomplete without the investigator’s surveillance logs and notes.

[6]            
Rule 40(13) has since been repealed and replaced by Rule 12‑5(10). 
That Rule provides that:

Unless the court otherwise orders
or the parties of record otherwise agree, no plan, photograph or object may be
received in evidence at the trial of an action unless, at least 7 days before
the start of the trial, the parties of record have been given an opportunity to
inspect it.

[7]            
In dealing with the third ground for objection in the Adamson
case, Mr. Justice Bauman at para. 225 said this:

As to the argument under Rule 40,
in my opinion that rule simply does not require the provision, in circumstances
like that at bar, of the logs and surveillance notes of the investigators as a
condition of admissibility under the rule.

[8]            
Adamson is binding authority for the proposition that the
provision of surveillance logs and notes of the investigators is not a
requirement or a condition for the admissibility of the video surveillance
evidence under what is now Rule 12‑5(10).  However, that is not the end
of the matter. Adamson is distinguishable from the case at bar because
here, unlike Adamson, the plaintiff has applied for disclosure of the
surveillance reports in advance of the voir dire to determine the
admissibility or otherwise of the video surveillance evidence.

[9]            
That raises the issue of whether the reports are privileged and whether,
by disclosing the videotapes, that privilege attaching to the reports has been
waived.

[10]        
I understand that all of the videotape has been disclosed to the
plaintiff and was disclosed prior to the commencement of this trial.

[11]        
The video surveillance evidence was commissioned by the defendants for
the purposes of this litigation, and for the purposes of this Ruling.  I accept
that the video surveillance evidence and the reports of the videographers
relating to that surveillance evidence were prepared for the dominant purpose
of this litigation, and would therefore be subject to litigation privilege.

[12]        
The test for waiver of privilege was discussed by Mr. Justice Cohen in B.M.P.
Global Distribution Inc. and others v. Bank of Nova Scotia, 2004 BCSC 1175. 
There the court at para. 43 cited the reasons for judgment of Madam Justice
McLachlin, as she then was, in S & K Processors Ltd. v. Campbell Avenue Herring
Producers Ltd., [1983] B.C.J. No. 1499 (S.C.) at para. 6:

Waiver of privilege is ordinarily
established where it is shown that the possessor of the privilege (1) knows of
the existence of the privilege, and (2) voluntarily evinces an intention to
waive that privilege.  However, waiver may also occur in the absence of an
intention to waive, where fairness and consistency so require.  Thus waiver of
privilege as to part of a communication, will be held to be waiver as to the
entire communication.

[13]        
Counsel’s submissions on this application were brief.  No authority was
cited to me in the course of argument, other than the Adamson decision.

[14]        
I have endeavoured to find additional authority that might assist in
resolving this issue and have had drawn to my attention the decision of Stewart
J. of the Nova Scotia Supreme Court in Green v. Clarke (1995), 143
N.S.R. (2d) 74.  That case involved an application for an order compelling the
defendants to produce to the plaintiff copies of all of the video surveillance
evidence and the reports arising from surveillance conducted on behalf of the
defendants in that case by private investigators.

[15]        
There, the court found that the surveillance videotapes and the
accompanying reports were privileged.  The court also found that some of the
video evidence had been disclosed to the plaintiff’s counsel by the defence,
apparently for the purpose of attempting settlement.  The court found that the
disclosure of those videotapes constituted a waiver of privilege.

[16]        
At para. 7, the court said this:

On the facts, I find the dominant purpose of the surveillance
reports, in the instant, is for use in litigation, and they are, therefore, privileged
from production. The same, however, cannot be said for the video tapes, given
that when they were partially disclosed to the plaintiff, the dominant purpose
would then have been for purpose of settlement. I am satisfied the contents of
the video surveillance tapes have been sufficiently divulged to the plaintiff
to cause the litigation or solicitor’s brief privilege to be waived. Manes and
Silver, in their text Solicitor-Client Privilege in Canadian Law
consider the issue of waiver where there is disclosure of part of a privileged
communication. At p. 192 they state:

1.04     Unless the communication is severable because it
deals with different subject matters, where there is a partial waiver of a
privileged communication, the whole communication must be disclosed.
Furthermore, a party is not entitled to disclose only those parts of a document
which are to the party’s advantage.

[17]        
Stewart J. went on to say this at para. 9:

Given the waiver of privilege,
full disclosure of the video tapes is now required under the rules and they are
to be produced for the plaintiffs’ inspection.

And at para. 10:

The three reports prepared contemporaneously with the video
tapes also form part of the documents that are to be produced by virtue of the
waiver of the privilege. In Nickerson (H.B.) Limited v. Sommerville Belkin
Industries Ltd. (1985), 72 N.S.R. (2d) 289 (T.D.), Nathanson, J. dealt with
waiver of privilege with respect to one document affecting another document at
p. 292:

…Waiver of the privilege with respect to one document may
affect the privilege covering other relevant documents. Phipson on Evidence
(13th ed.), page 306, states:

"If privilege is waived for one record of a particular
transaction, it is waived for all other relevant documents, whether of prior or
subsequent date, unless some further ground of privilege arises."

[18]        
In the result, the court in Green v. Clarke dealt with the issue
in this way at para. 11:

To the extent the contents or any
portion of the contents of the three reports may raise a separate or
independent basis for privilege, other than that associated with the waived
privilege in respect to the video tapes, that portion need not be produced,
unless this new basis for privilege has itself also been waived. In addition,
to the extent the reports may contain material unrelated to the tapes and,
therefore, to the privilege that was waived, they also need not be produced.

[19]        
Here, there has been a waiver of privilege with respect to the
videotapes.  The video surveillance reports deal with the same subject matter
as the videotape and, in my view, they are subsumed within the waiver of
privilege.

[20]        
The video surveillance reports and the statement of account of the
videographers should be produced to plaintiff’s counsel.  However, if there are
any portions of the surveillance report or the statements of account that deal
with matters unrelated to the video surveillance of the plaintiff, those
portions of the reports may not be produced.

“PEARLMAN
J.”