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Does Surveillance Need to Be Disclosed in Personal Injury Cases?

How Surveillance Is Used to Challenge Credibility

In personal injury claims, particularly in Atlantic Canada, the use of surveillance by insurance
companies has raised questions about when and how such evidence must be disclosed.
Surveillance is commonly used to assess the legitimacy of a claim, evaluate the severity of injuries,
or challenge the credibility of the claimant.

However, there are important legal considerations regarding whether this surveillance must be
disclosed and how it is managed in court.

The Goal of Surveillance in Personal Injury Cases

The primary purpose of surveillance is often to verify or dispute the validity of the claimant’s
injuries, and it can play a significant role in insurance disputes. Canadian courts have consistently
held that surveillance is conducted in preparation for litigation and is therefore often privileged.
This means that the information may not need to be disclosed immediately.

For example, in Murray v. Woodstock General Hospital Trust (1988) and Davis v. Toronto Transit
Commission (2018 ONSC 7527), surveillance was deemed to be part of the litigation preparation
process, and as such, disclosure was only required in specific situations where the privilege was
waived.

When Surveillance Must Be Disclosed

There are several important exceptions to the general rule of privilege. In cases where the
defendant intends to use surveillance evidence in court, Canadian legal standards, including those
in Atlantic Canada, require that such evidence be disclosed. Failure to disclose surveillance can
lead to its exclusion from the trial.

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Failure to disclose surveillance can lead to its exclusion from the trial.

For instance, in Thorpe v. Insurance Corp. of British Columbia (2001 BCSC 1086) and Lanthier v.
Volk (2006 BCSC 2092), it was held that surveillance must be disclosed when privilege is waived,
usually during the pre-trial discovery phase.

New Brunswick’s Rule 31.02 requires that all relevant information, even privileged surveillance,
must be disclosed if it is intended to be used as evidence in court.

Notable cases like Lannarella v. Corbett (2015 ONCA 110) and Imperial Oil v. Jacques (2014 SCC
66) have reinforced this principle, ensuring that claimants are fully informed of any surveillance
evidence that may be used against them. Surveillance can be used to impeach the testimony of a
claimant, but only if the rules of disclosure have been followed.

Using Surveillance to Challenge Credibility

Surveillance is frequently employed to challenge the credibility of claimants, especially in cases
where the plaintiff’s testimony plays a key role in the claim. This is particularly important when
there are no clear physical injuries but significant claims of ongoing disability or pain. Courts in
Canada have held that surveillance must be relevant and accurate.

In R. v. Creemer (1968) 1 CCC 14 (NSCA), the Nova Scotia Court of Appeal established three key
criteria for the admissibility of surveillance: accuracy, fairness, and verification by a witness who
can authenticate the footage. These principles have been extended to video evidence, as
demonstrated in Lannarella and other Canadian cases.

Surveillance in Atlantic Canada: Key Legal Precedents

Surveillance has become a common tool in personal injury cases across Atlantic Canada,
particularly in motor vehicle accidents. Although there are few published decisions from New
Brunswick specifically dealing with surveillance, cases such as Matthews v. McIntyre (2019 NBQB
127) and Chiasson v. Thériault (2018 NBQB 177) have referenced its use. In these cases,
surveillance played a role in determining the extent of injuries and the credibility of the claimants.

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Surveillance is a powerful tool for insurance companies and defendants in personal injury cases.

Canadian Court Rulings and Admissibility

The admissibility of surveillance evidence is not automatic. In some instances, Canadian courts
have ruled that the probative value of surveillance footage is insufficient to justify its inclusion.

For example, in Nemchin v. Green (2019 ONCA 634), the Ontario Court of Appeal held that while
the surveillance evidence was excluded from trial, it was ultimately not significant enough to alter
the verdict on damages. Similarly, in Lis v. Lombard Insurance Co. (2006 CanLII 21595), the court
determined that surveillance was irrelevant to the claimant’s chronic pain condition and was
therefore inadmissible.


In summary, surveillance is a powerful tool for insurance companies and defendants in personal
injury cases, but it must be used carefully within the confines of Canadian law. Courts in Atlantic
Canada generally require disclosure of surveillance when it is to be used in court, and the
admissibility of such evidence depends on its accuracy, fairness, and relevance. Claimants should be aware of the potential for surveillance and ensure that their legal teams are prepared to address its use. 

Helping Injured Clients

For over 35 years, CLG Injury Lawyers have helped thousands of injured clients. We fight for your rights to receive the maximum compensation you deserve. Providing you the Peace of Mind to focus on your Road to Recovery. Our experienced personal injury lawyers offer a free, no obligation case evaluation. 

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