Opinions and Current Issues Blog

Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com

Video Taping an Examination #CDNlegal #litigation

camera picInteresting decision in the ORs today.  In J.M. v. Clouthier et al., 2013 ONSC 221, Hennessy J. allowed a motion to videotape a defendant‘s examination for discovery for potential use at trial.  The court held there was a risk the defendant might become unavailable, due to health issues, or that he could absent himself intentionally.

The defendant is a convicted sex offender and former priest and the plaintiff was his victim.

In the circumstances, the “win” for the plaintiff is satisfying.  Unfortunately, the court’s analysis of potential prejudice to the defendant is a bit light.

The court held prejudice would be minimal based on the degree of intrusion to the defendant and consideration of technical and cost issues.  However the court did not discuss the strategic advantage to the plaintiff of having the potential option of introducing videotaped evidence at trial.

Properly edited, video footage can be very powerful.  With hours of footage available, a litigant could choose unflattering clips that are not necessarily otherwise relevant.  Of course a judge would prevent any abusive conduct, but there is not a level playing field when one party controls how the other party is depicted.

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This entry was posted on April 3, 2013 by in Uncategorized and tagged , , , , , , .

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