Case Report – Court comments on legality of surreptitious video surveillance

On October 6th, Ramsey J. of the Ontario Superior Court of Justice made the following comment on the legality of surreptitious video surveillance in striking a claim that alleged an “unlawful investigation scheme”:

As I have noted, the only conduct about which facts are alleged with any particularity consists of the insurance company hiring an investigator to investigate the plaintiff, and the investigator’s approach to a neighbour, during which he made himself known to the neighbour, who immediately told the plaintiff that the plaintiff was being investigated. That cannot possibly sustain a claim of wrongdoing or improper motivation.

Insurance companies are entitled to conduct surveillance of plaintiffs if they do so within the confines of the law. They cannot trespass on private property and they cannot intercept communications electronically. They cannot threaten witnesses or litigants. They cannot commit the tort of defamation. The plaintiff does not claim that they did. The fact that a private investigator is conducting an investigation is not defamatory. Anyone who is involved in a car accident or a divorce might be investigated by a private investigator.

Insurance companies do not need grounds to believe that the plaintiff is making a fraudulent claim before they conduct an investigation. They can conduct surveillance to refute a claim, to confirm a claim, or to see whether a claim is valid or not. They can photograph a plaintiff in places open to public view. They can identify themselves to the neighbours, and ask them for information about the case. Stripped of bald assertions and fanciful conclusions, the statement of claim alleges no wrongful acts and nothing from which improper motivation could be inferred.

This certainly highlights the significance of the Federal Court’s recent State Farm decision, which suggests that the collection of evidence in defence of a civil action is not PIPEDA-regulated notwithstanding the involvement of “commercial” actors such as insurers, lawyers and private investigators.

Pontillo v. Zinger et al., 2010 ONSC 5537 (CanLII).

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