Video evidence was allowed on appeal in Houston v Kline , 2011 BCCA 258
The respondent sued for damages arising out of a car accident.
The trial failed to complete after 5 days and was adjourned approximately 6 months for its continuation.
When the trial resumed the defendant attempted to introduce a videotape into evidence, and to call 10 witnesses who were not included in the original witness list filed with the court at the start of the trial.
The videotape was surveillance taken of the respondent`s behavior while she was on holidays, including Mexico.
The additional witnesses were investigation operatives and others who observed the respondent while she was on holidays.
The proposed video and viva voce ( live) evidence would have certainly challenged the extent, severity and duration of the injuries suffered by the respondent.
The trial judge concluded that the video and new viva voce evidence was inadmissible and awarded the respondent approximately $525,000.
The appeal was allowed and a new trial was ordered.
The Appeal court agreed with the trial judge that the admission of the videotaped evidence would prejudice the respondent, as the late disclosure would impair her ability to prepare for trial and prolong the proceedings.
The court also agreed that the respondent had failed to disclose the existence of the videos on a supplementary list of documents as required by the Rule 26(13) of the Supreme Court rules.
The appeal court however did disagree with the trial judge’s rejection of the viva voce evidence.
The court further disagreed with the trial judge that the names of the observers should have been included in the witness list was too restrictive, as the proposed witnesses were unknown to the appellants at the early stage of the trial.
The court emphasized the importance of determining the proceeding on its merits, rather than on expediency.
The Court of Appeal also held that the proposed viva voce evidence was critical in determining the award of damages, and as such a new trial was necessary to allow the appellants to challenge the respondents physical abilities.
In considering whether to exercise her discretion under Rule 26(14) to allow the video to be admitted into evidence, the trial judge referred at para. 15 of her evidentiary ruling to Stone v. Ellerman, 2009 BCCA 294, where the Court, at paras. 30-31, noted the four factors applicable to the exercise of discretion.
When applied to this case, these factors can be described as:
a) whether the plaintiff would suffer prejudice if the use of the document was permitted;
b) whether there was a reasonable explanation for the failure to disclose the document;
c) whether excluding the use of the document would prevent the determination of the relevant issue on its merits; and
d) whether, in the circumstances of the case, the ends of justice require that the use of the document be permitted.