The court’s decision in Dainov v. Lee, 2019 ONSC 5993, shows the value of dash cam footage in determining liability for an accident. Based on a dash cam video, Justice Koehnen was satisfied that the defendant driver was not liable for a motor vehicle accident.
The video showed that the defendant had the right-of-way at an intersection and that he kept a reasonable lookout and gave the plaintiff a reasonable opportunity to avoid a collision. Summary judgment was granted to the defendant, and the action was dismissed.
The decision shows that video evidence does not have to be perfect to be admissible. Referring to the Court of Appeal’s decision in Nemchin v. Green, 2019 ONCA 634 (a case in which our firm was counsel for the appellant), Justice Koehnen noted the following test for the admission of video evidence:
- The judge must be satisfied that the video is a fair and accurate depiction. Where only an excerpt of the video is tendered, the judge must be satisfied that it is fair, accurate and representative of the events it purports to depict.
- The judge must ensure that the video does not impair trial fairness.
The plaintiff argued that the video should not be admitted because it had been edited, it showed a limited field of view of the accident scene, and the original was no longer available. Justice Koehnen did not accept these arguments.
Technical arguments on the inadmissibility of video evidence will generally be rejected, consistent with the Nemchin decision.
When video footage is available, it is usually the most accurate depiction of an event. The perceptions of parties and witnesses are not always correct, and memories are fallible.
This case serves as a reminder to attempt to preserve any available video footage of an incident as soon as possible, before it is overwritten. This can include dash cam videos in motor vehicle accidents, potential security camera footage from nearby buildings, and CCTV videos in occupiers’ liability claims.