No Replays Allowed: Court Refuses to Compel Production of Discovery Video Recordings
Johl v. Lingard et al, 2025 ONSC 5923
A recent endorsement from the Ontario Superior Court of Justice serves as a clear warning to litigators: if you want the video recording of an examination for discovery to be available for use at trial, you must secure consent or a court order before the examination — not after.
The Motion
In Johl v. Lingard, the plaintiff brought a motion under Rule 30.10 to compel a non-party court reporting service to produce the audio-visual files of two Zoom discoveries. The motion was brought after the examinations were conducted and the Plaintiff had not obtained consent or a prior order under Rule 34.19. The Plaintiff’s intention was to use the recordings at trial to impeach the witnesses based on their demeanour — including an alleged emotional reaction from one defendant and a nervous laugh from another.
The Court’s Reasoning
The Court dismissed the motion on several grounds.
The first is that the plaintiff used the wrong rule. A video recording of a discovery is not a “document” within the meaning of Rule 30.10. It is a record of evidence, not a contemporaneous record of the events underlying the litigation. The court expressed concern that treating such files as ordinary non-party documents would neutralize Rule 34.19.
The second is a matter of timing, which is built into Rule 34.19. Rule 34.19 exists as a means to produce a video or other recording of an examination into evidence. An order under Rule 34.19 is uncommon and is typically sought and obtained when there is a demonstrated need to preserve a witness’s evidence for possible use at trial, typically because the witness is elderly, in poor health, or unlikely to be available to testify in person. The consent-or-order for the use of a recording at trial must be sought before the examination and not afterwards as was done by the plaintiff in this case.
Finally, the court observed that demeanour is a fragile foundation. The plaintiff’s purpose of obtaining the recorded video of the examinations was to use the video at trial to proffer into evidence their non-verbal reactions to questions asked. Drawing on R. v. Norman, Faryna v. Chorny, R. v. S.(N.), and R. v. Rhayel, the Court emphasized that demeanour is only one — and an often unreliable — factor in assessing credibility. The transcripts already in counsel’s hands would assist in cross-examination and impeachment.
Conclusion
Rule 30.10 is not a workaround for Rule 34.19. The purpose of Rule 34.19 is to produce the audio-visual files of an examination in very limited circumstances – typically when a witness is elderly, in poor health, or unlikely to be available to testify in person. An audio-video recording of an examination is typically not to be used to determine credibility based on recorded visual cues as facial expressions and reactions are unreliable indicators or credibility. Transcripts from examinations remain the workhorse for impeachment during a trial. A better strategy is to build a case around inconsistencies and reliability in the evidence, not emotional expressions or nervous laughter.
Considering Using Discovery Evidence at Trial? Get Legal Advice Early.
If your case may involve recorded discovery evidence, witness availability concerns, or impeachment at trial, early legal advice can help avoid procedural missteps. Cambridge LLP assists clients with civil and commercial litigation strategy across Ontario, including examinations for discovery, evidentiary issues, and trial preparation.