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18-004555 v Wawanesa Insurance, 2019 CanLII 22203 (ON LAT), <http://canlii.ca/t/hz9f0
(i) Is the respondent required to advise the applicant of the existence of surveillance, if any?
(ii) If the answer to (i) is yes, is the respondent required to provide the applicant with complete, unredacted surveillance tapes and records if the respondent does not intend to rely on that evidence at the hearing?
(i) If surveillance evidence exists, is it relevant to the issues in dispute in this application?
(ii) If surveillance evidence is relevant, is the applicant entitled to have the existence of the same disclosed and the surveillance evidence produced, or is some or all of what is sought protected from disclosure by litigation privilege?
(i) Surveillance that is related to the issues in dispute, if any, is relevant to this application.
(ii) Litigation privilege arose in this case on September 4, 2014 when the applicant filed an application for arbitration to the Financial Services Commission of Ontario (FSCO) claiming accident benefits arising out of the May 1, 2013 accident (“2014 application”), and I find that:
a) the respondent must advise the applicant of the existence of all surveillance, if any, conducted prior to September 4, 2014 and provide the applicant with the date, time, place and reason for the surveillance; and
b) the respondent must provide copies of any surveillance conducted before September 4, 2014 that relates to the issues in dispute. The respondent shall be entitled to redact solicitor-client privileged communications, if any.
(iii) The respondent is not required to advise the applicant of the existence of any surveillance or provide copies of any surveillance evidence that relates to surveillance conducted after litigation privilege arose on September 4, 2014, unless the respondent intends to rely on it at the hearing.
(iv) The respondent shall comply with the Tribunal’s Common Rules of Practice & Procedure (the “Tribunal Rules”) with respect to any surveillance evidence it intends to rely upon at the hearing.