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Legal Commentary

legal-commentary-3Surviellance: the insurance company’s bag of dirty tricks.

If you commence a legal proceeding in relation to an accident or disability claim, at some point you will almost certainly be the subject of surveillance. You may even be subject of surveillance even if you merely indicate to the insurer that you intend to commence a legal proceeding. The practice of obtaining surveillance varies amongst insurance companies, adjusters and insurance defence lawyers. What most share in common is a fundamental distrust of the applicant’s or Plaintiff’s reports of pain, suffering and loss as well as a desire to pay nothing on a claim. In cases involving Accident Benefits and Long-Term Disability benefits where the Insurance Company has a duty of utmost of good faith to its Insured, I have asked myself many times how is it possible for an Insurer maintain this duty when such a personal or institutional bias is permitted to exist.

If surveillance exists prior to the commencement of examinations for discovery, it must be disclosed in the Defendant’s Affidavit of Documents. The Defence is also obligated to provide particulars of surveillance including 1) dates, times and precise locations; 2) particulars of the activities and observations made; and 3) the names and addresses of the investigators who conducted the surveillance. It should be noted that the Defence lawyer is only obligated to provide this information  if asked by Plaintiff’s counsel at the examination for discovery. In my practice as a former Defence lawyer, it never ceased to amaze me by how infrequently Plaintiff’s counsel would ask for particulars of surveillance. Even more troubling is the tactic used by some Defence lawyers to get around this obligation and to subvert the disclosure process by deliberately not bring the surveillance report to the discovery undermining both the intent and spirit of the Rules of Civil Procedure.

The Defence must produce the surveillance report including photographs and videos 90 days prior to the commencement of trial if it intends to rely on the report for substantive purposes. Otherwise, the report may only be introduced at trial to impeach the credibility of the Plaintiff.

Fortunately, surveillance rarely causes the damage an Insurance Company wishes. As a former Insurance Defence lawyer, I have reviewed hundreds of surveillance reports and viewed countless hours of surveillance video. The fact of the matter is that the actually video is never as bad as the paper report prepared by the investigator or as damning as the Defence lawyer would like for you to believe.