Court excludes video surveillance from Trial after defence shares Plaintiff’s mediation brief with investigator. 

In a decision highlighting the strict protections surrounding settlement discussions, the Supreme Court of British Columbia ruled that video surveillance gathered by a private investigator could not be used at trial after defence counsel improperly shared the plaintiff's confidential mediation brief with the investigation firm. 

Background and Timeline 

The dispute arose during pre-trial preparations when both parties agreed to participate in a formal mediation set for May 28, 2025: 

On May 4, 2025 plaintiff’s counsel provided the defence with their mediation brief. On May 20, 2025 defence counsel abruptly informed the plaintiff that they would no longer participate in the scheduled mediation. 

On May 22, 2025 defence counsel retained a private investigation firm to conduct video surveillance on the plaintiff, providing them with background materials, including a complete copy of the plaintiff’s mediation brief. 

Following these instructions, the investigators conducted targeted video surveillance on the plaintiff. The plaintiff subsequently objected to the evidence, arguing it was obtained through a breach of settlement negotiation privilege. 

The Legal Framework 

Presiding over the case, Justice Funt emphasized that settlement negotiation privilege is a core common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. Protecting communications made for the purpose of settlement from disclosure encourages litigants to engage in honest and frank negotiations without fearing that their concessions or strategic disclosures will later be weaponized against them if talks fail. 

The court noted that while settlement privilege can be overridden, it requires a "compelling public interest" to do so. 

The Court's Ruling 

Justice Funt ruled that the video surveillance and any related investigator testimony were completely inadmissible at trial. 

The court agreed with the plaintiff’s argument that simply striking the brief was an insufficient remedy. By reviewing the confidential mediation brief, the investigators were not acting as neutral observers; rather, they became a "directed pair of eyes" specifically briefed on the plaintiff's expected testimony, claims, and limitations. 

Justice Funt stressed that allowing such evidence would undermine public trust in the mediation process across all areas of law and may engage sensitive financial information, technological advances, and personal health matters (including psychological and psychiatric matters). 

"Private investigations, including video surveillance, may be readily undertaken without an opposing party’s mediation brief. The Court will not admit evidence from the private investigation, including video surveillance ... [t]o do otherwise, in my view, would discourage litigants in engaging in freewheeling settlement negotiations for the fear of disclosure." 

Key Takeaway 

Sharing confidential mediation materials with third parties such as private investigators violates settlement negotiation privilege. Courts will enforce strict exclusionary remedies to ensure that parties can negotiate in good faith without the risk of their privileged materials being used to direct targeted surveillance or gather evidence.