Videotaping Examinations for Discovery

In what circumstances will a court permit examinations for discovery to be videotaped?

J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)

This action arose out of allegations of historical sexual assault.  The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues.  The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial.  The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse.  A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial. 
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.


Justice Hennessy allowed the motion.  Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts.  There was a higher than normal probability that the defendant would not be available at trial given his age and health status.  The video was permitted under r. 34 rather than r. 36. 

Amendments to the Minimum Maintenance Standards - Part 6

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 6:  Sidewalks

The MMS were amended in February 2010 to require annual inspections of sidewalks for surface discontinuities and required treatment of surface discontinuities that exceeded two centimetres.  The standard has been amended to expressly provide that a surface discontinuity is deemed to be in a state of repair if it is less than or equal to two centimetres.  The standard also provides that sidewalks are deemed to be in a state of repair between annual inspections, provided that the municipality does not acquire actual knowledge of a surface discontinuity in excess of two centimetres.  It will be interesting to see the extent to which the constructive knowledge provision is applied in sidewalk cases.

Amendments to the Minimum Maintenance Standards - Part 5

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 5:  New Ice Formation and Icy Roadways Standard

The MMS previously required municipalities to treat icy roadways within a prescribed time after becoming aware that the road was icy.  This remains the standard for roads that have become icy but is now part of a larger, more comprehensive standard for ice prevention and treatment. 

The standard for prevention of ice formation requires municipalities to monitor the weather and patrol as described above.  If, as a result of these activities, a municipality determines that there is a substantial probability of ice forming on a roadway, it must treat the road to prevent ice formation within a specified time, starting from the time it determines is appropriate to deploy resources for that purpose.  Treating a road means applying material, including but not limited to salt, sand or a combination. 

The ice prevention standard provides that roads are deemed to be in a state of repair until the time that the municipality becomes aware that the roadway is icy or the applicable time for ice prevention expires, whichever is earlier.  This should be read in conjunction with the constructive knowledge provision.  The icy roadways standard has also been amended to provide that roads are deemed to be in a state of repair until the applicable time for treatment expires.

As with the snow accumulation standard, the ice prevention standard is a response to the narrow interpretation of the icy roadways standard in Giuliani.  The discretion afforded to municipalities to determine when to deploy resources to prevent ice formation may be subject to challenge in future claims.  Nonetheless, compliance with the standard will assist in defending claims where it is alleged that a municipality failed to anticipate icy road conditions.

What You Need to Know Before Becoming a Volunteer

On Sept. 16, 1997, the Volunteer Protection Act of 1997 became effective. Concerned that volunteers have been deterred from offering their services to nonprofit organizations because of liability concerns, Congress went to work to enact a law that would limit volunteer liability. This federal law is good news for all those who volunteer, or have always wanted to volunteer, for nonprofit organizations.

I’d like to volunteer for a nonprofit organization. Am I protected from liability?

Yes. The Volunteer Protection Act provides liability protection for harm a volunteer may cause as long as:

1. the volunteer was acting within the scope of his or her volunteer responsibilities;
2. the volunteer was properly licensed, certified or authorized for the activity which caused the harm (if required or appropriate);
3. the harm was not caused by the willful or criminal misconduct, gross negligence or conscious, flagrant indifference to the rights or safety of the person harmed; and
4. the harm was not caused by the volunteer while operating a motor vehicle, vessel, aircraft or other vehicle for which the state mandates the operator or owner to be licensed or to maintain insurance.

Are there exceptions to volunteer immunity I should know?

The Volunteer Protection Act will not provide immunity if the volunteer has engaged in misconduct that:

1. constitutes a crime of violence or an act of international terrorism;
2. constitutes a hate crime;
3. involves a sexual offense;
4. violates a federal or state civil rights law; or
5. if the volunteer was under the influence of alcohol or drugs at the time.

Do I qualify as a volunteer under the act?

A “volunteer” is defined under the act as an individual performing services for a nonprofit organization or a governmental entity who does not receive compensation (other than reasonable reimbursement or allowance for incurred expenses) or any other thing of value in lieu of compensation, in excess of $500 per year. The term includes a director, officer, trustee or other direct service volunteer.

I volunteer as a director of a nonprofit organization. Can I expect my homeowners insurance policy or umbrella policy to extend coverage for harm I may cause as a volunteer?

No. A homeowners policy shows little promise of providing a director or officer any protection in the event that a lawsuit arises.

The reason? The typical directors and officers lawsuit involves a wrongful act that inflicts financial injury to someone, whereas a homeowners policy covers an insured whose negligence causes an accident that produces bodily injury or property damage to a plaintiff. The homeowners policy, if so endorsed, also may provide coverage for personal injury offenses, such as libel or slander.

The Volunteer Protection Act of 1997 is a big step in the right direction to providing volunteers with immunity; however, because there are still some limitations and qualifications on immunity, check with our agency to be sure you have the appropriate insurance coverage.

Are you a volunteer and want to see if you are covered or do you run a non-profit and want to make sure your volunteers are protected? Contact Us Today! You can call or email us at 888-565-2212 or info@bryanagency.com Ask us for our free report that you need to have as  volunteer - "Top 5 Questions You Need To Ask Your Volunteer Organization Before Lending a Hand"

Amendments to the Minimum Maintenance Standards - Part 4

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 4:  New Snow Accumulation Standard

The MMS previously required municipalities to clear snow within a prescribed number of hours after becoming aware of the fact that specified snow accumulation depths were reached.  This part of the standard is essentially unchanged, though it now requires municipalities to “address” snow accumulation and “reduce the snow depth” rather than “clear” the snow.   

However, there have been several additions to the standard.  The most significant addition is a provision which states that if the depth of snow accumulation on a roadway is less than or equal to the specified depth for that class of roadway, “the roadway is deemed to be in a state of repair with respect to snow accumulation”.  This provision is clearly intended to address the restrictive interpretation of the snow accumulation standard in Giuliani and should provide municipalities with a strong defence in cases where the standard is met.  The standard also sets out how the depth of snow accumulation on a roadway may be determined and how it may be addressed. 

The requirement that municipalities address snow accumulation after becoming aware of it must be read in conjunction with the constructive knowledge provision in section 1 of the MMS, which provides that a municipality is deemed to be aware of a fact if circumstances are such that the municipality ought reasonably to be aware of the fact.