Can the insurance company put surveillance on me?
You may have seen it in the movies. Someone following a person around city streets, or following them at a distance in traffic. That doesn’t happen in real life, right? Unfortunately, it does, and it’s perfectly legal.
Insurance companies, either before or after you make a claim, will hire surveillance persons to follow your movements. The reason for this is that they are checking to see if you’re “lying” about your injuries. These persons will drive to your home or neighbourhood and wait for you to leave your house. If you are driving to a public location, then they may follow you with a camera (such as to a shopping mall).
Insurers will then use this surveillance to say that the person is capable of more than they are reporting to their doctor (such as the ability to use your injured body part more than you are reporting). This can result in your compensation being decreased, or worse, having your case dismissed. Oftentimes though, the surveillance images are not useful to the insurer.
There is limited New Brunswick legislation on surveillance. Cases in other Provinces have stated that surveillance can only be conducted when a person does not have a reasonable expectation of privacy. Those courts have ruled that there is no reasonable expectation of privacy when in public, or on private property when the location is visible to the public (i.e. the front yard of one’s house). However, courts have stated that a person does have a reasonable expectation of privacy when in their own home.
In New Brunswick case Melanson v. Fraser[1] , the insurer had surveillance of the injured person getting in and out of their vehicle, gardening, and other similar activities, and argued that this proved she was being untruthful about her injuries. The court stated that the videos showed she was able to function normally, the medical evidence showed she was still experiencing pain and was disabled.
In New Brunswick case Kay v. Blue Cross Life Insurance Co. of Canada[2], the private detective had followed the injured person as he drove his motor home to the beach, pulled a barbeque into his backyard, and even befriended him on a trip to the beach. The detective also witnessed and photographed the injured person doing chin ups. The trial judge stated that while this behaviour was surprising, the doctors stated he was always an active person and that this type of exercise was normal to the injured person.
In New Brunswick case Chiasson v. Thériault[3], the injured person was filmed on six different days over the course of two years. The judge stated that the investigator can only film what happens outdoors. The investigator had followed the injured person to a concert, and then filmed them as they walked up and down steps outside their house. The judge referred to this evidence as ‘practically useless’. He further stated that injured persons have good days and bad days, and that there is no way to measure the effects of the observed activities from surveillance.
If you are worried if your insurer is conducting surveillance on you, contact Moss Hachey Law. We can confirm whether surveillance is being conducted.
