Yes, and insurance companies often do hire a private investigator to investigate the legitimacy of suspected claims. Many companies offer private investigator services to insurance companies. Insurance companies often want to find evidence to undermine a plaintiff’s claim. Surveillance materials gathered through private investigations undertaken by defendant insurance companies are subjected to both the rules of evidence and civil procedure.

If you are a plaintiff in a civil proceeding a defendant insurance company can hire a private investigator to perform surveillance on you. They might do this to gather evidence to prove that you can return to work, or that the extent of your injury is not as severe as you claim. The best thing to do to is not to lie about or exaggerate the extent of your injuries. For example, if you are still able to run errands and go grocery shopping independently, do not claim that you are housebound.

Private investigators must conduct surveillance from public areas, where an individual would have no reasonable expectation of privacy. They are not allowed to trespass onto your property to conduct surveillance. However, they can observe your property from a public area, such as the street or sidewalk outside your home.

Does privacy legislation apply?

Nova Scotia does not have any provincial privacy legislation regulating the private sector. The Freedom of Information and Privacy Act only applies to public bodies. The Personal Information Protection and Electronic Documents Act (PIPEDA) does not apply to surveillance that is collected on a plaintiff for the purposes of defending a civil action. In 2010, the Federal Court ruled in State Farm Mutual Automobile and Assurance v Canada (‘State Farm’) that PIPEDA did not apply to investigation reports and related surveillance documents prepared by a defendant insurer for the purposes of defending a civil action, for such actions were not commercial in nature and fell outside the intended purpose of the legislation (State Farm at paras 98; 106).

What can the insurance company do with the surveillance?

They can use it as evidence to defend against your claim, but they can also use it to try and impeach you. Rule 94.09 of the Nova Scotia Civil Procedure Rules (CPR) allows for parties to withhold a document from disclosure if it is to be used for the sole purpose of impeaching the credibility of a witness. Under CPR 14.02 the definition of ‘documents’ also includes video footage and photographs. This means if the insurance company has gathered surveillance and plans to use it to impeach a plaintiff’s credibility then they do not have to disclose it. This would allow them to use the surveillance during questioning in discovery or even during cross-examination at trial to impeach a plaintiff’s testimony. However, CPR 94.09(c) limits this exception of withholding documents that are otherwise subjected to discovery strictly to impeaching credibility, they cannot be used to as substantive evidence to prove any other fact. For example, if a plaintiff has claimed or testified that he is unable to use stairs because of his injury, and there is footage of him walking down and back up the stairs of his house, then defendant counsel can use it in accordance to this rule to impeach the plaintiff’s credibility. However, an insurance company cannot withhold surveillance footage of the plaintiff using the stairs of his house for impeachment purposes, and then also use it to prove the extent of the plaintiff’s disability, or that the plaintiff will be able to return to work in the future.

Alternatively, a defendant insurance company might assert litigation privilege over the surveillance they have gathered if they are not planning to use it at trial. Normally, all relevant documents that pertain to a material fact to be proven at trial must be disclosed to the opposing party, this is called discovery. However, litigation privilege allows parties in civil proceedings to claim privilege over documents they have gathered primarily for the purpose of preparing for litigation, provided they are not going to use them at trial. Even if litigation privilege is claimed parties are still required to declare the existence of such documents within the affidavit of documents (an affidavit containing a list of all relevant documents). For an insurance company to claim litigation privilege over surveillance from a private investigation the dominant purpose of conducting the investigation must have been in reasonable contemplation of or preparing for either existing or anticipated litigation. If a defendant is not planning to use a document for impeachment purposes and does plan to use it as evidence at trial, then they must disclose it to the plaintiff following the regular rules of disclosure.

If your pain is severe but intermittent then be forthright. Surveillance evidence is often a brief snapshot of time and might not be completely representative, but can still undermine your credibility, or be used as evidence to refute the extent of your injuries. Never embellish the severity of your injuries because you think it might make you more sympathetic or believable.

Questions about a injury or disability claim?

Contact Jeff Mitchell for a free case review. Call toll-free: 1-855-670-1345 or 902-702-3452.

This is a guest post by Sara Gillett, Schulich School of Law