Iannarella v. Corbett – Reverse Onus and Disclosure of Surveillance
In February of 2015, the Court of Appeal released its decision in Iannarella v. Corbett. In particular, this case clarifies the burden of proof requirement when it comes to rear-end collisions. It also reinforces defense counsel’s ongoing disclosure requirements regarding surveillance.
In this case, the defendant and respondent, Corbett, was driving a concrete mixer when a snow squall caused Corbett to lose visibility and ultimately rear end the plaintiff and appellant, Andrea Iannarella, who was directly in front of him. Following a 15 day trial, the jury found that the respondent was not driving negligently and the action was dismissed on the ground of liability.
On appeal, the Honourable Peter Lauwers confirmed that when it comes to rear-end car accidents, the obligation to provide an explanation for the accident rests on the defendant, not the plaintiff. Lauwers states, “Once the plaintiff has proven that a rear-end collision occurred, the evidentiary burden shifts from the plaintiff to the defendant, who must then show that he or she was not negligent. This situation would apply even where an emergency situation is alleged.”
Further, a significant amount of surveillance was obtained of the plaintiff. This was never listed in the defendant’s affidavit of documents. Lauwers stated that serving an affidavit of documents is mandatory under the Rules, even where one hasn’t been requested. Also, there are ongoing disclosure requirements of surveillance throughout the litigation process. Surveillance will only be admitted at trial if it is properly disclosed in an affidavit of documents. This decision serves as a reminder to defense lawyers that it is possible to have surveillance excluded, even for the purposes of impeaching credibility, if they do not comply with the disclosure obligations.