If you are pursuing a personal injury claim, you may be surprised to learn that insurance companies and defence lawyers often use surveillance as part of their litigation strategy. Surveillance can take many forms, ranging from private investigators recording your activities in public to monitoring your social media presence. While this practice is lawful within limits, it can feel intrusive. Knowing how surveillance works, why it is used, and how to protect yourself can help ensure your claim is assessed fairly.
Why Insurance Companies Use Surveillance
The primary purpose of surveillance in a personal injury case is to test the credibility of the injured person. Insurers and defence counsel look for evidence that suggests a claimant’s reported injuries or limitations are inconsistent with their day-to-day activities. For example, if someone reports difficulty walking or lifting but is later filmed carrying groceries or attending social events, the defence may argue that the injuries are exaggerated.
Surveillance can also be used strategically during settlement negotiations or at trial to challenge a claimant’s testimony. That said, surveillance does not automatically harm a case. In some circumstances, it can support a claim by confirming genuine physical limitations or restricted activity levels. The real issue is how the footage is interpreted and presented.
How Surveillance Is Conducted
Surveillance is typically carried out by private investigators who observe and record claimants in public spaces. This may include filming outside a person’s home from a public vantage point, following them to medical appointments, or observing activities in parking lots, stores, parks, or sidewalks. Investigators are not permitted to trespass on private property, peer through windows, or record inside a home, as doing so would violate a person’s reasonable expectation of privacy.
In addition to physical surveillance, insurers increasingly monitor social media accounts. Photos, videos, comments, and even tagged content can be reviewed for anything that appears inconsistent with reported injuries.
Legal Limits and Disclosure Requirements
Ontario law places important limits on how surveillance may be conducted and used. While observation in public spaces is generally permitted, surveillance that amounts to harassment, trespass, or intrusion into private life may be challenged.
Equally important are the disclosure rules. The Ontario Court of Appeal’s decision in Iannarella v. Corbett, 2015 ONCA 110, clarified that all surveillance must be listed in the defendant’s affidavit of documents, even if it is claimed to be privileged. If the defence intends to rely on surveillance as substantive evidence, the actual footage must be produced at least 90 days before trial. Surveillance must be disclosed in terms of its existence and particulars. These rules exist to prevent unfair surprise and to ensure procedural fairness.
Surveillance evidence is not automatically admissible. Courts will assess whether the footage fairly and accurately reflects the person’s real-world abilities and limitations. In cases involving chronic pain or other invisible injuries, courts have recognized that brief video clips often provide an incomplete and potentially misleading picture.
Practical Advice for Injury Claimants
If you are involved in a personal injury claim, it is safest to assume that surveillance may occur at any time, particularly around medical assessments, examinations for discovery, mediations, or trial dates. The most effective approach is honesty and consistency. Accurately describe your abilities and limitations to your doctors, insurer, and lawyer. Do not exaggerate but also do not downplay pain or functional difficulties.
If you can perform certain activities occasionally but suffer increased pain or fatigue afterward, ensure this is clearly documented in your medical records. Social media use should be approached with caution. Avoiding posts about activities or injuries and asking friends and family not to tag you can reduce risk. Even then, limiting new content is often the safest approach.
In Conclusion
Surveillance is a common and regulated part of personal injury litigation. While it can feel unsettling, it does not determine the outcome of a case on its own. By understanding how surveillance works, being honest and consistent, and working closely with your lawyer, you can minimize its impact and ensure your claim is presented accurately. When surveillance evidence is disclosed, reviewing it carefully with your lawyer allows proper context to be provided and misleading impressions to be challenged. Ultimately, a truthful and well-documented claim remains the strongest defence against surveillance.ber
