Are insurers allowed to hire private investigators to follow you?
Why do insurance companies hire private investigators?
Insurance company regularly hire private investigators who conduct investigations about the injury victim. They conduct surveillance, obtain background information, take pictures, take photos and review an injured person’s online profile such as Facebook posts and photos. In doing so, the insurance company is looking for any information that might damage the injury victim’s case. In particular, the private investigator is looking for evidence that is inconsistent with what the injury victim alleges to be the nature and extent of their injuries and the extent of the affect of those injuries on their daily activities. Insurers also use private investigators to determine if the allegations are fraudulent.
The fact that insurance companies conduct surveillance is a reality in personal injury cases. Insurers have come to rely more and more on surveillance as a means to help them defeat personal injury cases. While it may seem like an invasion of privacy, the insurers have the right to investigate and conduct surveillance with restrictions imposed on them in law. For instance, in Ontario, private investigators are governed by the Private Security and Investigative Services Act, 2005, S.O. 2005, c. 34 and regulations enacted under that statute.
Under section 34 of the Private Security and Investigative Services Act, private investigators must identify themselves as such when asked. Section 34 reads as follows:
Identification as private investigator
34 (1) Every person who is holding himself or herself out as a private investigator shall,
(a) carry his or her licence;
(b) on request, identify himself or herself as a private investigator; and
(c) on request, produce his or her licence.
However, be mindful of section 2(2) and 2(3) of Ontario Regulation 363/07 which states as follows:
No individual licensee shall:
(d) misrepresent to any person the type, class or conditions of his or her licence.
(3) Clause (2) (d) does not apply to an individual licensee who is concealing his or her identity as a private investigator or security guard in order to carry out his or her duties.
Is it Legal?
Clients often ask me if insurance companies have the right to conduct surveillance. The answer, as indicated, is yes, with certain professional and legal restrictions. The conduct and actions of private investigators must also be in compliance with the Criminal Code of Canada.
What types of things can a private investigator do:
Private investigators can:
- Follow you around.
- Conduct background checks using publically accessible databases and by speaking with people.
- Record videos of you in a public setting.
- Take photos of you in a public setting.
Private investigators cannot:
- Record you in a private settings like your home.
- Take photos of you in a private setting, like in your home.
- Wiretap your telephone.
- Harass you, your family or friends.
Must the insurance company provide you with a copy of the surveillance?
This is a legally complicated question and the law is developing in this area. At the moment, the surveillance product (reports, photos, etc…), must be listed in an affidavit of documents but the insurer (the defendant) can claim litigation privilege over the documents meaning that while they have to disclose they have the surveillance, they need not produce a copy of it. You are entitled to basic information such as the dates and authors of the reports and the gist of what is contained in the surveillance documents. However, if the defendant wishes to use the documents at trial or call the private investigator as a witness at trial, all documents must be produced in advance of trial.
What to do if you believe you are being followed?
The truth will set you free. In the end, if your allegations are truthful, surveillance will not harm your case unless the insurer and private investigator try to mislead the Court. If you suspect that you are being followed and videotaped, we recommend that you do nothing different from what you normally would do. Engage in your usual activities and go about your day. Do not try to exaggerate your behaviour or your injuries. If the activities you engage in cause you pain, make sure you meet your doctor and report it. Stay within the recommendations of your doctor in terms of types and extent of activities you do. That way, there is little that an insurance company can record that will be useful to them.
In the end, there is little an injury victim can do to stop surveillance.
Admissibility Of Surveillance Evidence At Trial
The Courts act as the gatekeepers of evidence at trials and will apply a legal test to the admissibility of surveillance evidence.
In a recent case, Rolley v. MacDonell, the defendant filed a motion seeking leave of the Court to rely on surveillance video recordings as substantive evidence. The plaintiff had been on surveillance over the course of a year. In determining whether the surveillance could be admitted as substantive evidence, the Court applied a legal test as follows:
To be admissible as substantive evidence, the surveillance must satisfy the following three-part test:
- Accuracy in truly representing the facts;
- Fairness and the absence of any intention to mislead; and
- Verification on oath by a person capable of doing so.
(See Iannarella v. Corbett, 2015 ONCA 110, 331 O.A.C. 21, at para. 94 and Nemchin v. Green, 2017 ONSC 1321, at para. 16.)
In addition, the probative value of the evidence must outweigh its prejudicial effect. This is a general rule of evidence test applied to all evidence.
Because there were gaps in the video recordings, the videos depicted only part of the surveillance time, the recordings could be considered fair, accurate, and representative of the events purported to be depicted in the recordings. In that case, the judge dismissed the defendant’s motion and denied any entitlement to rely on any portion of the surveillance video recordings as substantive evidence.
If you have been injured in an accident, consult one of our lawyers for free. Our lawyers can explain what to do in case you believe you are being followed.
Ottawa injury and accident lawyer.