Are you being watched?

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"I always feel like, somebody's watching me" a famous line from a song that has been covered by many artists. The odds are if you have suffered a personal injury and are seeking compensation (especially long term benefits) there will be someone watching you... the Insurance Company.

Surveillance is not only limited to movies and business places. Insurance fraud is a crime that has economical and societal impacts throughout the world. Aside from rebuffing false claims, an insurer still seeks to maximise profits and will examine claims with a fine tooth comb to ensure that money stays within the company. They have the added advantage of having a team of experienced and determined lawyers who do their best to ensure that the business is always profitable.

To many injured people, it seems unfair and ridiculous that an insurance company can essentially spy on them during this time of personal crisis. It is the insurance company's legal right and usually the norm in personal injury cases to do so, and the evidence is used for substantive and impeachment purposes. Whatever footage that has been collected has to be disclosed during the discovery process (and has to be categorized in terms of the evidence being able to substantiate a claim or refute it).

An insurance company can legally record your activities as long as they are in public. Taking walks, gardening, and activities undertaken at work can all be surveilled if they are in a public setting (done in the open). Most things beyond that are not legal and cannot be supported in court.

The "Personal Information Protection and Electronic Documents Act" (PIPEDA) and Guidance on Covert Video Surveillance in the private sector both seek to protect all Canadians' rights to privacy. In order for video surveillance to be acceptable in a court of law, there are a few standard rules that need to be followed. The surveillance footage has to have well documented dates, times, and locations. The names and addresses of the relevant people caught on camera need to be made available as well.

Case example

In the case of Scott Wigmore v. Anita Wyler, the question of whether or not acquired surveillance would be admissible for trial on impeachment and substantive purposes was addressed.

Surveillance of Wingmore (the plaintiff) began on December of 2006 and ended in September of 2014. Both parties agreed that all the evidence could be used for impeachment purposes but the discrepancy lay in specific surveillance taken in October of 2012.

The plaintiff believed that when the October 2012 surveillance was produced in January of the following year, only some of all the acquired footage to that date was presented. The defendant made no attempt to waive their privilege of the video within the ninety days mandated by the law before trial and therefore could use the video for substantive purposes.

According to the Rules of Civil Procedure, if a party fails to adhere to the guidelines concerning the disclosure of a document (whether or not it is in their favor), the party can be barred from using it at trial unless excused by a Judge.

In this case, the ruling Judge felt that the October tape should be allowed to be presented for both substantive and impeachment purposes but with agreed upon restrictions. It was seen that the evidence in question would not be highly prejudicial against the plaintiffs. They had been afforded time and would be afforded more time if necessary to have their experts review the elements that were beneficial to their case (at the expense of the defence).

The defence was not allowed to make use of any of the other surveillance evidence that was acquired throughout the investigative period (an arrangement that they initially offered with the intention of having the October footage made admissible as substantive evidence). All of the evidence could however be used by the plaintiff with the defence being able to cross examine only the evidence that has been presented by the plaintiff.

As in all legalities, honestly is the best policy as any infraction can hurt your chances in the uphill battle with an insurance company. Ensure that you are aptly represented by an experienced firm as soon as you are able to avoid any roadblocks to your compensation.


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