[21] At least ten of the photos appear to have been taken while the Plaintiff was in hospital, immediately following his dirt bike accident on July 23, 2006.
[22] The Plaintiff was examined for discovery on July 22, 2009. In the course of that examination, the Plaintiff undertook to provide photographs.
[23] The photographs were provided to Defendant’s counsel on October 30, 2015.
[24] On November 10, 2015, Defendant’s counsel was provided with an updated Affidavit of Documents which referred to “colour photographs”. No description of the photos or what they depict was provided.
[25] The Defendant submits that the Plaintiff has failed to comply with Rule 30.07, and requires leave to make any use of them in the course of the trial, by virtue of Rule 30.08. Leave should be denied.
[26] For his part, the Plaintiff says that he is not in breach of any Rule, having served the photographs 30 days before trial. I know of no rule governing proceedings in the Superior Court, where documents need only be produced 30 days before trial. Nor could counsel point me to any such rule.
[27] The Plaintiff additionally states that, even if he did run afoul of Rule 30.07, then the provisions of Rule 53.08 are engaged, and the Defendant must show prejudice in order for the Plaintiff to be denied leave to have the photographs admitted into evidence.
[28] I find that the Plaintiff failed to produce the photographs “in compliance with” the Rules.
[29] Firstly, the Plaintiff was under the obligation to produce the photographs, which appear to certainly have been in existence prior to the examination for discovery, within a reasonable period of time following the examination.
[30] Secondly, the nature and subject of the photographs should have been described in an Affidavit of Documents delivered within a reasonable time after the Plaintiff became aware that his earlier Affidavit(s) of Documents made no reference to photographs.
[31] That being said, in order to deny the leave sought, the Defendant must establish prejudice. There is no evidence of any prejudice caused to the Defendant as a result of the timing of the disclosure of the photos. The only prejudice is with regard to the use of the photographs during counsel’s Opening Statement, which I have already dealt with.
Conclusion
[32] The Plaintiff’s motion for leave to make use of photographs during his Opening, is denied.
[33] The Plaintiff’s motion for leave to make use of the photographs during the evidentiary portion of the trial is granted, subject to authentication of the photographs by way of the evidence of both the Plaintiff and whoever took the photos.