Insurance Surveillance in Ontario Injury Claims

Yes. Insurance companies can use surveillance in Ontario personal injury claims, including video, photographs, private investigator reports and social media evidence. Surveillance does not automatically defeat an injury claim. The issue is whether the evidence fairly contradicts the plaintiff’s reported limitations or only shows isolated activity that does not reflect pain, endurance, consistency, flare-ups or work capacity.

Surveillance is common in Ontario personal injury litigation. An insurer or defence lawyer may hire a private investigator to record a plaintiff driving, walking, shopping, carrying bags, attending appointments, socializing, doing errands or performing household tasks.

The purpose is usually simple: the defence is looking for something that appears inconsistent with the injury claim.

Sometimes the footage matters. A plaintiff who says they cannot lift anything and is later filmed carrying heavy materials for an extended period has a problem. A plaintiff who says they rarely leave the house and is repeatedly filmed doing activities that contradict sworn evidence has a credibility issue.

But surveillance is often less powerful than insurers suggest. A short video rarely shows what happened before the activity, how much pain followed, whether the person needed medication afterward, whether the activity was unusual, whether help was needed later or whether the person could repeat the same task day after day.

Surveillance issues can arise in many Ontario personal injury claims, including slip and falls, motor vehicle collisions, brain injury claims, chronic pain claims, catastrophic injury claims, occupiers’ liability claims and disputed income loss claims.

That is why surveillance evidence has to be handled carefully. It can be useful evidence. It can also be misleading.

This is an area where Ontario personal injury lawyers need to understand both the litigation rules and the medical reality of injury. It's important to ascertain what the footage of activities proves regarding the plaintiff's functioning.

Can insurance companies follow you after an injury claim?

Yes. Insurance companies will sometimes hire private investigators to observe people who have made personal injury claims.

That does not mean an investigator can trespass, harass someone or break the law. Surveillance usually consists of observing activities that are occuring in public or can be seen from a lawful location.

The insurance company is often trying to compare the plaintiff’s actual activity with the evidence provided to them in the claim. The investigator may record the person walking, driving, entering stores, attending appointments, loading objects into a vehicle, doing yard work or participating in social or recreational activities.

For many injured people, this is invasive. In litigation, however, surveillance is a common defence tactive. A legitimate question in some cases is whether the investigators properly obtained footage, whether it has been properly disclosed, and whether it contradicts the claim.

Is surveillance legal in Ontario personal injury litigation?

Surveillance can be obtained and used in Ontario personal injury litigation, but it does not sit outside the normal rules of evidence, disclosure and fairness.

In Ferenczy v. MCI Medical Clinics, 2004 CanLII 12555 (ON SC), the Ontario Superior Court considered video surveillance obtained by a private investigator in civil litigation. The plaintiff argued that the surveillance breached privacy legislation. However, the court allowed the video to be used, treating surveillance gathered for the purpose of defending litigation differently from ordinary commercial collection of personal information.

This means that surveillance is not automatically excluded simply because the plaintiff did not consent to being recorded in public. But that does not mean every surveillance video will be admitted or used for any purpose the defence wants.

The defence still has to deal with relevance, fairness, privilege, disclosure and the purpose for which the footage is being used. A plaintiff’s lawyer will usually want to ask two questions. First, was the surveillance lawfully and fairly obtained? Second, even if it was obtained, has the defence complied with the rules required to use it in the lawsuit?

What do private investigators look for in personal injury surveillance?

Private investigators are usually looking for activity that can be used to challenge pain, function, credibility or damages.

In personal injury claims, surveillance can sometimes be aimed at showing that the plaintiff can do more than they reported. The insurer may look for evidence of physical activity, driving, lifting, bending, walking without visible difficulty, shopping, travelling, working, socializing or doing household tasks.

The defence could potentially argue that the plaintiff exaggerated symptoms, understated their ability to function, gave inaccurate answers at discovery, overstated the need for future care, overstated housekeeping loss or claimed a future income loss that is not supported.

The footage becomes more important when it contradicts a specific statement.

A vague clip of someone walking into a store may not prove much. Footage of the person repeatedly doing the exact task they said they could not do is more serious.

Why insurers use surveillance in personal injury cases

Insurance companies often use surveillance because many injury claims depend partly on the plaintiff’s own description of pain, function and daily limitations.

That is especially true in cases involving chronic pain, soft-tissue injury, post-concussion symptoms, psychological injury, fatigue, dizziness, headaches or fluctuating physical restrictions. These injuries do not always appear clearly on imaging. Their effect is often proven through medical records, functional evidence, treatment history, work history and the plaintiff’s own testimony.

Surveillance provides the insurance company to a chance to test that evidence. The defence might use video to argue that the plaintiff is more functional than reported, that symptoms have improved, that the plaintiff exaggerated at discovery, that future care is overstated, that housekeeping loss is exaggerated or that future income loss is not supported.

Surveillance affects several parts of the case, including pain and suffering, future income loss, loss of earning capacity, cost of future care, housekeeping and home maintenance, attendant care, chronic pain evidence, psychological injury evidence, return-to-work evidence and credibility.

The value of the surveillance depends on the mismatch between what the plaintiff said and what the video actually shows.

Does surveillance automatically ruin a personal injury claim?

No. Surveillance does not automatically ruin a personal injury claims. Many videos show ordinary activities that are entirely consistent with the plaintiff’s actual limitations. A person with chronic pain can walk into a store. A person with a brain injury can attend an appointment. A person with a shoulder injury can carry a light item. A person with depression can appear calm in public for a short time.

The stronger surveillance evidence is footage that contradicts something specific the Plaintiff said.

For example, surveillance can matter if a plaintiff claims that they cannot drive but is filmed driving without apparent difficulty. It can matter if the plaintiff says they cannot lift or carry anything but is filmed repeatedly loading heavy objects. It can matter if the plaintiff describes extreme mobility limits while being filmed moving in a way that appears inconsistent with discovery answers, medical records or expert assumptions.

Surveillance is not the same as proof of capacity

One of the common ways to overstate the importance of footage in surveillance disputes is treating a short activity as proof of normal capacity.

For example, people with chronic pain can have good days and bad days. A person with a back injury could lift something once and still be unable to do repeated lifting at work. Someone with a brain injury might appear normal during a short public outing and still struggle with fatigue, noise sensitivity, planning, memory or emotional regulation. A person with depression or post-traumatic symptoms can run errands and still be impaired in work, relationships and daily life. Basically, video often captures activity but does not always capture an individual's capacity.

Capacity is about what a person can do reliably, safely and repeatedly over time. It includes endurance, pain after activity, need for rest, medication use, flare-ups, consistency, speed, concentration and the ability to function the next day.

A plaintiff who says, “I can never walk,” and is filmed walking long distances has a problem. A plaintiff who says, “I can walk short distances but pay for it afterward,” is not necessarily contradicted by footage showing a short walk through a parking lot.

What surveillance video usually does not show

Surveillance cannot show pain. It rarely shows what happened later in the day. It does not show whether the plaintiff needed to rest after an activity, cancelled plans, increased medication, required help, had a symptom flare or avoided activity the next day.

Additionally, three minutes of activity does not establish what a plaintiff can do for eight hours a day, five days a week. Brief outdings do not prove employability. Carrying groceries once does not prove capacity to return to heavy work. Smiling in public does not disprove depression, anxiety or post-traumatic symptoms.

Surveillance can also be selective. The insurer may choose the clips that look most useful and ignore hours of footage where nothing significant occurred. Context matters: how long was the plaintiff observed, how many days were involved, what was not recorded and how typical the activity was.

Can surveillance video be used in court?

Yes, surveillance video can be used in court if the defence complies with Ontario’s disclosure rules. The key Ontario case is Iannarella v. Corbett, 2015 ONCA 110. The Ontario Court of Appeal addressed the use of surveillance in a personal injury trial and emphasized that surveillance should not be used to create trial by ambush.

The Court explained that surveillance is a document for litigation purposes. If surveillance exists before the affidavit of documents is served, it should be listed in the affidavit. If surveillance is obtained later, the party has a continuing obligation to update disclosure. Where the defence wants to rely on surveillance at trial, the plaintiff is entitled to proper disclosure of its existence and particulars.

The legal use of the footage also matters.

If the defence wants to use surveillance as substantive evidence, it is using the video to prove what the plaintiff could do. In that situation, privilege generally has to be waived and the surveillance produced.

If the defence says the surveillance is being held for impeachment only, that does not eliminate all disclosure obligations. The existence and particulars of surveillance still have to be dealt with properly, and the trial judge controls whether and how the footage can be used.

Disclosure of surveillance evidence in Ontario

Surveillance is not supposed to enable trial by ambush. In Iannarella v. Corbett, the Court of Appeal reinforced the ongoing disclosure obligations that apply to surveillance. If surveillance exists, its particulars must be disclosed in the litigation process. Post-discovery surveillance also has to be disclosed before trial if the defence intends to use it.

The disclosure issue often matters because surveillance can create a strong impression. A judge or jury may react strongly to video, even where the footage has limited medical or functional significance. Proper disclosure gives the plaintiff an opportunity to explain the context, obtain the full footage where appropriate and address the use the defence intends to make of it.

If the defence wants to rely on video to prove the plaintiff’s actual function, the plaintiff should not be seeing that evidence for the first time in the middle of trial.

Surveillance for impeachment versus substantive evidence

The idea is that substantive evidence is used to prove facts. In personal injury cases, the defence may want to prove that the plaintiff can walk, bend, drive, lift, shop, carry objects, socialize or perform activities inconsistent with the damages claim.

Impeachment evidence is used to challenge credibility. The defence may use surveillance to confront the plaintiff with an inconsistent discovery answer, medical history or trial statement.

The same video may look identical on screen, but the legal use is different.

Courts are careful about this distinction because surveillance can be persuasive beyond its true significance. A short clip can create the impression that a person is not injured, even where the real issue is whether the person can function reliably over time.

How surveillance interacts with discovery evidence

Surveillance is most damaging when it contradicts the plaintiff’s sworn evidence at examination for discovery. Discovery answers often cover physical ability, household tasks, work capacity, recreational activity, driving, travel, treatment, social life and daily routine. If the plaintiff gives exaggerated or absolute answers, surveillance can be used to attack credibility.

There is a major difference between saying: “I never carry groceries.” and: “I try to avoid carrying groceries.

If I have to carry light bags a short distance, I can sometimes do it, but it increases my pain and I usually need to rest afterward.”

The first answer is vulnerable if video shows the plaintiff carrying bags. The second answer gives context and may be consistent with the same footage.

This is why discovery preparation matters. Plaintiffs should not exaggerate. They should also not minimize their injuries. For more information about that stage of litigation, see our article on examination for discovery in Ontario personal injury lawsuits.

Surveillance and medical records

Surveillance can also be compared against medical records. If a plaintiff tells a doctor they cannot perform a certain activity and surveillance shows the activity being performed regularly, the defence will argue that the medical opinion rests on an inaccurate history. That can affect medical causation, prognosis, work capacity, future care and credibility.

But the same caution applies. Medical notes are often brief. A doctor may write “unable to lift” as shorthand for “unable to lift repetitively, safely or without symptom flare.” A plaintiff may report difficulty with an activity, not total inability. A video clip may show a task done once, not whether it could be sustained.

A plaintiff’s lawyer should review surveillance against the actual wording of the medical records, discovery answers and expert reports.

Can insurance companies check social media?

Yes. Social media can become evidence in an Ontario personal injury claim.

Insurers and defence lawyers may review public posts, photographs, videos, comments, tagged photos, vacation posts, activity posts and other online material. In some cases, social media evidence may be used to argue that the plaintiff is more active, more social, less impaired or less limited than claimed.

Social media can be misleading for the same reason surveillance can be misleading. A smiling photo does not prove the absence of pain. A vacation picture does not show the symptoms afterward. A post from one event does not show day-to-day capacity.

Social media, Facebook posts and production

Social media evidence is not limited to public posts. Ontario courts have ordered production of private or limited-access social media content where there is a basis to believe the material is relevant to the issues in the lawsuit. In Leduc v. Roman, 2009 CanLII 6838 (ON SC), the court dealt with a plaintiff’s private Facebook account in a personal injury action and held that Facebook content can be producible where it is relevant to the plaintiff’s claimed loss of enjoyment of life or function.

Earlier, in Murphy v. Perger, the court also dealt with production of Facebook material in a personal injury case.

The practical point is similar to surveillance. A social media photograph does not always tell the full story. A smiling photo, a vacation post or a picture from one event does not prove normal capacity. But social media can be damaging where it contradicts sworn evidence, medical histories or claims about daily function.

Surveillance and chronic pain claims

Chronic pain claims are especially vulnerable to surveillance arguments because pain is not always visible. Plaintiffs with chronic pain can look normal while walking, driving, shopping or attending a family event. That does not mean the pain is gone. It also does not mean the person can return to full-time work, perform heavy tasks or function without consequences.

Can the person repeat the activity? Can they do it for a full workday? Can they do it without increased symptoms? Can they do it the next day? Did the activity require medication, rest or help afterward?

Surveillance can still be important in a chronic pain case. It can reveal activity inconsistent with the plaintiff’s evidence.

Surveillance and brain injury or psychological injury claims

Surveillance can be misleading in brain injury and psychological injury claims.

A person with a mild traumatic brain injury can appear physically normal. They may walk, drive, shop, smile, speak with others and attend appointments. The impairment may involve memory, attention, processing speed, fatigue, emotional regulation, headaches, dizziness, sensory sensitivity or difficulty managing complex tasks. Videos from a distance will rarely show those problems.

The same is true of psychological injuries. A person with anxiety, depression or post-traumatic symptoms may have moments where they appear calm or social. That does not necessarily contradict a psychiatric injury.

The defence can still use surveillance where the footage contradicts specific evidence. But appearing normal in public does not prove normal function.

For more information about these types of claims, see our pages for Ontario brain injury lawyers and Ontario catastrophic injury lawyers.

Surveillance and future income loss

Surveillance is often used to challenge future income loss and loss of earning capacity. The defence can argue that the plaintiff’s movements show capacity for work. The video may show the plaintiff lifting, walking, driving, using tools, attending social events or performing errands.

The question is whether the activity translates into work capacity. A person may be able to perform an activity briefly but not sustain employment. Work requires attendance, pace, reliability, repetition, concentration, interaction, endurance and the ability to perform when symptoms are worse. Video of isolated activity does not necessarily prove competitive employability.

On the other hand, surveillance can hurt a future income loss claim if it shows repeated activity inconsistent with the restrictions relied on by the plaintiff’s doctors, vocational expert or accountant.

For more detail on this issue, see our article on future income loss and loss of earning capacity in Ontario personal injury claims.

Surveillance and cost of future care

Surveillance can also be used to challenge cost of future care. If a future care plan assumes the plaintiff needs help with tasks the plaintiff is repeatedly filmed doing independently, the defence will use the footage to attack the plan. That can affect attendant care, occupational therapy recommendations, equipment, housekeeping assistance, transportation or home modifications.

If the plaintiff can perform the task only occasionally, only with pain, only unsafely or only by worsening symptoms, the surveillance may not defeat the care claim. If the plaintiff is filmed regularly performing activities that the care plan assumes cannot be done, the plan should be reconsidered.

A life care plan is only as strong as the assumptions behind it. Surveillance can expose unsupported assumptions, but it can also be overstated when the defence treats isolated function as normal capacity.

For more information, see our article on cost of future care in Ontario personal injury claims.

Surveillance in car accident claims

Surveillance is particularly common in car accident litigation. Motor vehicle claims often involve disputes over chronic pain, soft-tissue injury, post-concussion symptoms, psychological injury, work capacity, income loss and future care. In tort claims, surveillance can also be used in arguments about whether the plaintiff’s injuries meet the statutory threshold for non-pecuniary damages.

The same principles apply. A plaintiff filmed doing ordinary errands is not automatically disproven. A plaintiff filmed repeatedly performing activities inconsistent with sworn evidence or medical restrictions faces a more serious problem.

For information about tort claims after motor vehicle collisions, see our Ontario car accident lawyers page.

What should I do if I think I am under surveillance?

A plaintiff should not try to perform for surveillance. The right approach is to live honestly and give accurate evidence. Do not exaggerate. Do not pretend to be more injured than you are.

At the same time, plaintiffs should understand that insurers can observe public activities. A person claiming serious functional loss should expect that ordinary errands, driving, walking, social activity, recreational activity and home tasks could be examined later.

The best protection is consistency. What the plaintiff tells doctors, says at discovery and does in daily life should reflect the same reality: what they can do, what they cannot do, what they can do only briefly, what causes symptoms and what they avoid because of symptoms.

The problem is usually not activity. The problem is inaccurate evidence about activity.

How a plaintiff’s lawyer responds to surveillance

The first step is to determine what the defence has in its possession. That includes the dates, times and duration of surveillance, the full footage if privilege has been waived, the investigator’s notes or reports where producible, and the purpose for which the defence intends to use the evidence

.

The next step is to compare the footage to the actual evidence. Does the video contradict a discovery answer? Does it contradict a medical history? Does it undermine an expert’s assumption? Or does it show something the plaintiff always admitted they could do?

Context can sometimes be critical. A plaintiff needs to explain what happened before or after the recorded activity, whether symptoms increased, whether the activity was unusual, whether assistance was needed later or whether the task could be repeated.

A good response does not pretend damaging footage is harmless. If the video exposes an exaggeration or an unsupported claim, the litigation strategy has to account for that. However, many surveillance clips are far less important once the actual claim and the limits of the video are understood.

Frequently Asked Questions About Surveillance in Ontario Personal Injury Claims

Can insurance companies use surveillance in Ontario personal injury claims?

Yes. Insurers and defence lawyers commonly use surveillance in personal injury litigation to test the plaintiff’s evidence, challenge credibility and assess claimed limitations. The evidence still has to be used in accordance with the rules of evidence and disclosure.

Can insurance companies hire a private investigator after an injury claim?

Yes. Insurers sometimes hire private investigators in personal injury claims. The investigator can observe public activities and prepare video, photographs or reports for the defence.

Does surveillance automatically ruin a personal injury claim?

No. Surveillance does not automatically defeat a claim. The question is whether the footage fairly contradicts the plaintiff’s evidence or simply shows isolated activity that is consistent with the plaintiff’s actual limitations.

Does the defence have to disclose surveillance evidence?

Ontario law requires disclosure of the existence and particulars of surveillance. If the defence wants to use surveillance as substantive evidence, production and privilege issues have to be addressed. Undisclosed surveillance cannot simply be used to create trial by ambush.

Can surveillance be used only for credibility?

Surveillance can be used for impeachment where the defence uses the footage to challenge testimony. It can also be used substantively where privilege is waived and the surveillance is properly disclosed. The purpose affects disclosure, production and admissibility.

What if surveillance only shows me on a good day?

That can be important context. Many injuries fluctuate. A short clip does not show pain afterward, medication, rest, flare-ups or whether the activity can be repeated. The legal issue is whether the video accurately reflects normal capacity.

Can social media be used against me in a personal injury claim?

Yes. Public social media posts, photographs and videos can be reviewed and used where they are relevant to the issues in the claim. Private or limited-access social media material can also be producible where the defence establishes a proper relevance basis.

Conclusion

Surveillance evidence can matter in an Ontario personal injury claim, but it rarely speaks for itself. The footage has to be compared against the plaintiff’s actual evidence, medical records, discovery answers, expert assumptions and damages claims. A video showing ordinary activity does not necessarily prove work capacity, lack of pain or absence of impairment. A video showing a direct contradiction can create a serious credibility problem.

The key issue is not whether the plaintiff was filmed doing something. The issue is what the footage fairly proves.

A strong personal injury claim does not depend on pretending the injured person can do nothing. It depends on accurate evidence about what the person can do, what they cannot do, what they can do only with consequences and how the injury affects daily life over time.

If you were seriously injured in Ontario, our Ontario personal injury lawyers can help you understand how surveillance evidence, medical records, discovery answers, expert reports and functional evidence fit together in a personal injury claim.

About the Author

Lane Foster is an Ontario personal injury lawyer and the founder of Foster Injury Law. He represents injured people in serious personal injury and motor vehicle claims across Ontario, including cases involving surveillance evidence, chronic pain, future income loss, cost of future care and disputed credibility.