Last summer, I wrote a piece titled “No Soup for You: When Surveillance Destroys Subjective Injury Claims”^[1], sparked by the client who would later be known, not so affectionately, in my office as “The Soup Lady.” A once-strong herniated-disc claim collapsed after discovery when my client swore she couldn’t “even stir a pot of soup,” then was caught on surveillance helping lift two sofas while moving, obliterating her credibility and leaving nothing to negotiate at mediation.

That story raises a larger question about fairness and timing in the production of surveillance evidence. One of our recent mediations brought that conversation back to life in a more pointed form. The plaintiff suspected she had been filmed. Defence counsel confirmed surveillance had been conducted. But no footage had been produced before the mediation. Plaintiff’s counsel urged that the reasonable inference was that the footage was favourable to the plaintiff. Defence counsel countered that they were entitled to hold surveillance back unless and until they intended to rely on it at trial, invoking the long-standing litigation trope of preserving “the element of surprise.”

That standoff goes to the heart of a live procedural question in Ontario law: when does surveillance move from a private investigative tool to producible evidence?

The Governing Rule: Intention to Use Triggers Disclosure

The leading case remains Iannarella v. Corbett, 2015 ONCA 110^[2], where the Ontario Court of Appeal held that surveillance is not automatically producible the moment it is obtained. Instead, disclosure is tied to the insurer’s intention to rely on the footage as evidence. Until that intention is made clear, surveillance is treated as privileged work product. But once a party signals that the surveillance may be introduced at trial, either in chief or even as part of a substantive impeachment strategy, the duty of production is triggered. The Court warned against a strategy of partial hints or selective disclosure, holding that once surveillance is even listed as a potential exhibit, it must be meaningfully shared with the other side to allow a fair opportunity to respond.

The Ambush Argument Meets Procedural Fairness

In Dugal v. Manulife Financial, 2011 ONSC 1785^[3], the insurer took the position that surveillance was purely impeachment material and therefore exempt from production until the moment of trial. Justice Strathy disagreed with that rigid approach, drawing a distinction between legitimate impeachment and trial by ambush. He affirmed that where surveillance speaks directly to the central issue of the plaintiff’s functional impairment, keeping it concealed until the last moment offends the principle of fairness embedded in modern civil procedure. The Court emphasized that litigation “is not a game of hide and seek,” and that evidence shaping the core merits must be disclosed with enough time for the other party to evaluate, test, and answer it.

Timing Matters: Disclosure Too Late Is Disclosure in Name Only

In Landolfi v. Fargione, 2006 CanLII 9692 (ON CA)^[4], the Court of Appeal confirmed that surveillance intended to be used to challenge credibility must be disclosed with enough lead time to allow a fair response, rejecting the notion that insurers can hold it back solely to preserve a tactical surprise.

The Court of Appeal confirmed that principle in Iannarella, making it clear that producing surveillance only at the trial stage—after months or years of discovery and mediation—may meet the technical rule of disclosure, but not its underlying purpose, which is to ensure fairness and meaningful response. In that case, while the surveillance was ultimately admitted, the plaintiff sought an adjournment and raised procedural prejudice, prompting the Court to warn that if a party intends to rely on surveillance, it must be produced in time for the opposing party to assess, test, and respond to it.

The Court did not prohibit late disclosure outright but emphasized that litigation is not a game of “trial by surprise,” reinforcing the functional rule: once surveillance is going to shape trial strategy, it must be shared rather than held in reserve for maximum tactical impact.

Surveillance as Leverage: Strategic Silence and Its Risks

Insurers often treat surveillance as a form of bargaining leverage. Silence allows one side to hint at damaging footage without committing to its production. But that ambiguity cuts both ways. Plaintiffs may choose to weaponize the absence of disclosure, as in the recent mediation I conducted, arguing that if the footage truly helped the defence, it would have been produced. Defence counsel, in turn, may hold fast to the idea that until trial strategy is locked in, surveillance remains privileged. The case law supports the right to hold back—but with a warning. The later the disclosure, the more risk of sanctions, adjournments, and cost consequences. In other words, strategic silence is lawful, but it is not without hazard.

The Mediation Lens: What Mediators Should Do When Surveillance Lurks in the Background

Mediation takes place in a procedural grey zone. Production obligations have not fully crystallized, but strategic narratives are already forming. When surveillance is suspected but not disclosed, mediators should recognize the psychological tension it creates. Plaintiffs may feel unsettled by the unknown. Insurers may feel emboldened by the possibility of a “gotcha moment” later. The mediator’s role is not to force disclosure, but to surface the risk calculation. If the footage is neutral or harmful to the defence, withholding it may backfire. If it is harmful to the plaintiff, delayed disclosure may foreclose a realistic settlement window. In caucus, the conversation becomes less about strict entitlement and more about strategic timing and risk tolerance.

A well-timed mediator question — “If this footage is as strong as you say, is there value in showing a representative clip today to break the impasse?” — can shift the entire dynamic without compromising trial posture.