In Lam v. Chui, the Plaintiff secretly recorded the Defendant acknowledging that the Defendant owed a debt to the Plaintiff. The Plaintiff then sought to adduce this evidence at trial, however counsel for the Defendant opposed this, stating that the admissibility of the recording would be too prejudicial. The Court, however, allowed the recording to be admitted as evidence. The Court stated that there was some probative value to admitting the tape recording, and that any prejudicial effect was not sufficiently significant such that the tape recording should be excluded from the trial.

 

[25]         So I am going to summarize the law I have referred to by saying that there is a discretion in the court to exclude evidence where the prejudicial effect outweighs the probative value. There are cases where the court has commented on the practice of recording household conversations between family members and described that as odious. The court has also referred to illegal tape-recording, that is, tape-recordings when no party to the conversation had consented to it being recorded.

[28]         I will summarize the factors in this case as follows. First, with respect to probative value, I will say that I have to refer to it for the purposes of considering admissibility and, at this stage, I am not weighing the evidence or making any comment about what weight, if any, should be given to the evidence. In my view, there may be some probative value to the tape-recording. There is some concern about the statement by Ms. Chiu, that, “But I tell you, you want to have the $100,000. No way because you treat me like that. That’s pay for it.”  There may also be other utterances by Ms. Chiu giving rise to concern, but that is the one that is most prominent, in my view.

 

[32]         This is a not a clear case. In my view, there is some probative value to admitting the full recording, and the concerns about prejudice are not sufficiently significant that the recording should be excluded from evidence, primarily because any concerns about them are clear on the recording itself.

An issue that occasionally arises in the context of ICBC injury claims is whether or not a secretly recorded conversation can be admitted as evidence at a trial. Although the recording itself is generally not illegal, the Court will generally not permit the recording to be used against another party at trial.

 

In Anderson v. Dwyer, the Plaintiff was injured in a rear end collision, and brought an ICBC claim for damages for pain and suffering, as well as other types of damages. During the course of the litigation, ICBC’S lawyer arranged for the Plaintiff to submit to an independent medical examination with one of ICBC’S doctors. The Plaintiff surreptitiously recorded the examination, and then counsel for the Plaintiff attempted to use the tape recording at trial. The Plaintiff had done so because she wanted something to refresh her memory with, and there also existed a great deal of mistrust between her and ICBC, so she wanted to have the transcript of the recording to fall back on should she need to. The Court, however, would not allow the tape recording to be admitted as evidence for the purposes of cross-examination.

 

[13]         Her explanation for this action was that she wanted an accurate record of everything that was said during the examination and was concerned that she would not be able to recall it herself without assistance. She felt she had been treated disrespectfully by representatives of the Insurance Corporation of British Columbia during a previous meeting about this litigation and, I gather, that as a result she was suspicious of how the examination would be conducted.

[14]         She maintained that she did not originally intend to use the recording in the litigation but that a friend had typed it up for her shortly before the trial so that she could refresh her memory and at that point she found discrepancies between the transcript and Dr. Locht’s report. She intended it to be used during cross-examination only if “the truth wasn’t coming out” in his evidence.

[49]         With respect to the plaintiff’s general credibility, I did not find her recording of the examination by Dr. Locht, her failure to disclose potentially relevant documents, or her “hands on” involvement in this litigation to be as significant as the defendant suggested. However improper surreptitious recording of medical interviews may be, it appeared to me that this recording was a reflection of the plaintiff’s suspicious and hostile view of ICBC and of her desire to protect herself from the unfair treatment that she expected to receive from its representative, rather than of any desire to manipulate the evidence. Her responses to questions about other potentially relevant documents that she still had in her possession mainly demonstrated her lack of understanding of her disclosure responsibilities. Finally, her intensive involvement in the preparation of this case is as consistent with a belief in the justice of her cause as with any desire to exaggerate or mislead.