Surveillance and Social Media in an Injury Claim

Surveillance and social media are routine in contested injury claims. An insurer defending a significant general damages claim will often hire an investigator, and will always look at what has been posted publicly. Neither step is improper, and neither is usually fatal to a claim.

What an Investigator Can Lawfully Record

An investigator can film a person who is in public view, from public property, without consent. They cannot trespass, record inside a home, or intercept private communications. The video shown to a court is usually short, taken over a few days, and edited down to the segments the defence wants. The remaining footage is producible, and asking for all of it is standard practice.

Privacy Settings Do Not Make a Post Private

Posts, photographs and location tags can be sought in discovery where they are relevant to the injuries claimed, and a court can order production of content behind a privacy setting once relevance is shown. Deleting an account after a claim starts is worse than leaving it in place, because destroying relevant evidence becomes a separate problem. The safer practice is to stop posting instead of removing what is already there.

How Surveillance and Social Media Affect the Award

A clip of a plaintiff carrying groceries does not disprove chronic pain. It becomes damaging only when it contradicts what the plaintiff has said, because the point at issue is credibility. The link between credibility and the size of the award is set out in the medical records and credibility chapter.

The Defence Against It Is Accuracy

Describe a normal bad day and a normal good day. A plaintiff who says they can never lift anything is one photograph away from losing the claim, while a plaintiff who says they can lift and then pay for it the next day is not. The same principle applies to the evidence discussed in the loss of enjoyment of life chapter.

What the Firm Does

The firm demands full surveillance disclosure rather than the edited clip, and puts the raw footage to the investigator who took it. Reported decisions on surveillance and on production of social media are searchable on CanLII. The issue arises on car accident and long term disability files, and the firm works with no fee unless the claim resolves.