Everything You’ve Wanted to Know About Surveillance

Jul 12, 2021

This blog post was written by our placement student Rob Stefanelli (with some edits by Duncan Macgillivray).

CAN AN INSURANCE COMPANY CONDUCT SURVEILLANCE OF ME AND MY FAMILY?

Yes (… unfortunately). When you are injured and make a representation to your insurer or the at-fault driver’s insurer about the extent of your injuries, the insurance company is able to raise questions to ensure the truth of your claims. Surveillance is one of the ways in which an insurance company may try to test the truth of your claims.

WHAT ARE THE TYPES OF SURVEILLANCE THAT INSURANCE COMPANIES USE?

Surveillance can take many forms.  Sometimes you will not know that this surveillance is occurring.

  1. Online Surveillance, including a review of social media posts you or your friends or your family have made;
  2. Direct Surveillance, including videotaping you in public spaces as you go about your activities of daily living; and
  3. Investigative Surveillance, including questioning your friends, family, neighbours, or anyone else who may know you regarding the extent of your injuries.

WHAT ARE INVESTIGATORS ALLOWED TO DO?

Some of the things that a private investigator hired by an insurance company is allowed to do include:

  • Photograph or audio/video record you;
  • Record your actions, either when you are alone or with others, including children, while in a public place such as grocery stores, parks, or shopping malls;
  • Follow you while you walk or drive;
  • Review social media posts that may be relevant to your claims;
  • Talk to anyone that may know about the extent of your injuries; and
  • Talk to you after disclosing that they are a private investigator.

WHAT ARE INVESTIGATORS NOT ALLOWED TO DO?

Here are some things that Investigators are not allowed to do:

  • Investigators are not allowed to record you while you are in your home and not visible from the street. This means that an investigator cannot enter your home, or stand at their window and record you. Investigators can, however, record you if you are visible to the public, such as if you are standing in the front window, or sitting on the front porch;
  • Investigators are not allowed to lie to you about their identity as a private investigator;
  • Investigators cannot violate your reasonable expectations of privacy. This means that an investigator cannot record you at a private place such as a place of worship, locker rooms, changing rooms, and public bathrooms;
  • Investigators cannot entrap you by provoking you into performing an action you would not otherwise have done. This means that an investigator cannot provoke you into bending by letting the air out of your tires, or leaving money on the ground in the hopes they can film you picking it up;
  • Investigators cannot touch you; and
  • Investigators cannot alter their recordings of you in any way, including cutting relevant parts, or changing the speed of the video.

SHOULD INJURED PEOPLE BE WORRIED ABOUT SURVEILLANCE?

Not really.  But, you should be careful.

The most important thing is to be honest about your injuries and functional abilities.  If you are honest, surveillance usually won’t hurt your claim.

Surveillance can hurt your claim where your stated limitations do not match what is captured on video. But even then, you are allowed, and encouraged, to try and recover. This often means attempting activities at the limits of your abilities to regain your strength and fortitude. Surveillance of these recovery activities only represents a snapshot in time, and fails to show the period of recovery that may be required following any physical exertion. Ontario courts recognize this fact and weigh surveillance evidence accordingly.

You should always be careful about what you and your friends post on social media though.  Social media is like free surveillance for insurance companies.

WHAT CAN I DO IF MY INSURANCE COMPANY IS SURVEILLING ME?

If you have been injured and feel you are under surveillance by your insurance company, you should reach out to your lawyer as soon as possible. We can tell the insurance company that their investigator has been “caught”.

If you know that an investigator is watching you, you can ask them to stop or tell them that you will call the police.

Being under surveillance can be stressful.  But, remember, as long as you are open and honest about your injuries and how they affect your life, surveillance should not hurt your claim.