‘FAIR – supporting auto accident survivors through advocacy and education’
We endeavor to provide relevant information on surveillance, an issue that deeply touches many car accident victims. The following is not legal advice. If you feel you are being stalked or harassed you should speak to a legal representative and report your concerns to your local police.
Surveillance takes many forms and insurers and sometimes even your own lawyer will employ surveillance in order to verify your credibility. In car insurance injury claims, credibility matters because in the face of substantial costs to pay out, the credibility issue can be a way for an insurance company to beat a claim.
Surveillance is routinely reviewed by assessors at insurer medical examinations (IME/IE) and introduced as evidence in Ontario courts and in Tribunals such as the Licensed Appeal Tribunal Auto Accident Benefits Service (LAT AABS) and it is one of the tools in the insurer toolbox for claim denial and intimidation.
So what do you do? How do you live your life and push your boundaries to get tasks done despite dealing with your injuries? How do you not undermine your own claim?
The first thing to do is become aware. Stop providing the surveillance by not posting pictures of yourself on Facebook (Meta), X and other social media sites and ask others to not post your picture on their pages. Be careful about what you write about yourself and your family and don’t announce where you’ll be at a given time. Insurer investigators will take advantage of knowing when medical appointments take place, what days garbage goes out in your neighborhood, family events such as birthdays, and any time they know you’ll be out, including if you do your shopping on a particular day. Often surveillance opportunities exist in our own car telematics data which can be mined by insurers and it might be a good time to turn your cell phone geolocation service off so you can’t be tracked.
Despite family members and neighbors not being involved in a claim, they can also be followed and even interviewed about your habits and asked if you have changed since your car accident. Your employer and fellow employees will likely be interviewed along with your treating healthcare professionals, and possibly your children’s teachers and school staff are all candidates to be interviewed by a private investigator.
There are plenty of stories out there about car chases, confrontations with investigators and harassment. So what can you do about that? We recommend that you report suspicious behavior to your local police when there are unknown individuals hanging around your neighborhood or if you are followed too closely by investigators in vehicles, making your driving unsafe. If you routinely pick up your child from school or work, the constant stalking by a private investigator can be very stressful for your family and it would be wise to report the univited intrusion to the local police in order to end the shadowing of vulnerable children and women associated with you.
What we know about investigators is limited. Private investigators are usually hired for a minimum of 3 days at a time. So if you see a private investigator following you, assume they will be there for 3 days or longer. Currently we are hearing about the use of drones to follow claimants. Investigators have also been known to stake out your friends and associates in the hopes of catching some photo evidence with their interaction with you, so make your acquaintances aware that this could happen to them as well.
There isn’t anything you can do to stop your insurer from investigating you but you can definitely take action to protect your visibility by being aware the investigators are there and by reporting any harassment to the police and to your legal representative.
FAIR is interested in your stories about surveillance and how it has affected your world and your ability to function. You can email us at: fairautoinsurance@gmail.com
Links of interest:
Ministry of Community Safety and Correctional Services (individuals) Requirements https://www.ontario.ca/page/security-guard-or-private-investigator-licence-individuals
Private Security and Investigative Services Act, 2005, S.O. 2005, c. 34 https://www.ontario.ca/laws/statute/05p34
Private Security and Investigative Services Act, 2005 ONTARIO REGULATION 363/07 CODE OF CONDUCT https://www.ontario.ca/laws/regulation/070363
Public complaints for security guards and private investigators – how to file a complaint against a security guard or private investigator. https://www.ontario.ca/page/public-complaints-security-guards-and-private-investigators
Contact information – any questions regarding your complaint or the process, please call the complaints line toll-free at: Toll-free: 1-855-785-4499 or email: PSIS.PublicComplaints@ontario.ca.
Online – Submit your complaint through the online complaints portal. Mail- Download and print the public complaints form.
COMPLAINTS AND INVESTIGATIONS
Complaint to Registrar 19 (1) The Registrar may receive a complaint from any person alleging that a licensee has breached the code of conduct established under the regulations or alleging that a licensee has failed to comply with this Act or the regulations or has breached a condition of a licence. 2005, c. 34, s. 19 (1).
Form of complaint (2) A complaint shall be in writing, signed by the complainant, and filed with the Registrar within 90 days after the subject-matter that gives rise to the complaint arose or at a later date with the Registrar’s consent. 2005, c. 34, s. 19 (2). https://www.ontario.ca/laws/statute/05p34#BK29
Private investigation laws and regulations from LegalLine https://www.legalline.ca/search_gcse/?q=Private+investigation+laws+and+regulations
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Insurance Surveillance: What Is It and What Can Injured Victims Do About It?
Surveillance by Canadian insurance companies is a controversial issue. The practice involves insurance companies using various forms of monitoring to investigate claims made by injured victims. The aim is to gather evidence that can be used to deny or reduce the compensation paid to claimants. In this blog post, we will explore what surveillance is, how it works and what injured victims can do about it.
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Can The Insurer “Spy” On Me?
During a personal injury claim, you may discover that you are being followed, videotaped, and photographed. While undoubtedly uncomfortable and intrusive, “surveillance” is legal and is quite common.
https://www.mondaq.com/canada/personal-injury/1228058/can-the-insurer-spy-on-me
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CCTV Surveillance and Personal Injury Cases: Understanding the Legal Boundaries
Closed-circuit television (CCTV) cameras are becoming increasingly common in both public and private spaces. For personal injury lawyers, these recordings can serve as valuable evidence in proving or defending a claim. However, the use of CCTV footage must align with legal boundaries to ensure it is admissible and ethically obtained. Let’s explore the correct use of CCTV surveillance in personal injury cases.
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Tracking technology: your car is definitely watching you – but that might not be a bad thing
BETTER TRACKING TECHNOLOGY MEANS AN EXTRA EYE IS ALWAYS WATCHING. WATCH OUT FOR THESE COMMON WAYS OF BEING TRACKED AND HOW THEY AFFECT YOUR PRIVACY. https://www.thezebra.com/resources/driving/tracking-technology/
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Is your car spying on you? Reseacher says vehicle companies pose a privacy nightmare
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Information and Privacy Commissioner of Ontario
Explore the results of research offering original insights and analyses on emerging issues in access and privacy.
https://www.ipc.on.ca/en/resources/research-hub
IPC Decisions https://www.ipc.on.ca/en/decisions
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Responses from two Colleges regarding whether there are “any guidelines or instructions to your members in relation to viewing surveillance videos when it comes to assessing Ontario’s injured auto insurance claimants?”
From CPSO: We do not have a specific position regarding reviewing surveillance videos in the context identified below. However, for those physicians who choose to review surveillance videos, we would expect that they ensure the recordings were obtained legally and we would direct them to consult with the Canadian Medical Protective Association (CMPA).
From CPO: In addition to the information provided in the article, it is now important for members to take into account the Personal Health Information Protection Act, 2004 (PHIPA) [Part IV] and the Personal Information Protection and Electronic Documents Act, 2000 (PIPEDA) [e.g., 7.(1) and 7.(2)] both of which have come into force since that article was written. Both PHIPA and PIPEDA would seem to be applicable to all regulated health professionals in Ontario, with PIPEDA being even more broadly applicable in Canada.
These Acts discuss the collection, use and disclosure of personal information and it is my understanding that the College suggests that reviewing the videotape could be considered “collection” and/or “use” of personal information.
As noted in the article, the College recommends that if able, the member should discuss the activity in the video with the client to ensure proper understanding and interpretation. The article also cautions members about the use of surveillance videos without the knowledge and consent of the client.
The College does not expressly forbid members from viewing surveillance videotapes without the consent, knowledge of involvement of the client. Rather, the Bulletin article was prepared to offer guidance to members in this area, especially regarding the non-legislative issues discussed.
With regard to the impact of PHIPA and/or PIPEDA on the collection and/or use of surveillance videotapes, the College notes that this is a matter which requires a legal interpretation of the statute which is outside of the purview of the College. The Professional Misconduct Regulation under the Psychology Act list, as an act of professional misconduct: 3. Doing anything to a client for the purpose of prevention, assessment, diagnosis, intervention or other purpose in a situation in which a consent is required by law, without such a consent. To this end, the College cautions members to understand how PHIPA and/or PIPEDA may apply and suggests members may wish to obtain independent legal advice.
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Aviva Insurance Company of Canada v. Ebhodaghe, 2021 ONSC 7343 (CanLII), https://canlii.ca/t/jk5f1
[5] It is unclear what Mr. Raguseo’s position is within Aviva. He does not describe his position during the call. As well, the affidavit material on the application provides no details. Emails appended as exhibits to the affidavit variously describe his title as “Policy Investigations”, “Underwriting” and “Underwriter.”
[9] As the interview continues, Mr. Raguseo then asks Ms. Ebhodaghe to provide her cell phone records, and more particularly her cell tower data records, which he explains will assist Aviva in determining Ms. Ebhodaghe’s physical location when using her phone.
[10] While Ms. Ebhodaghe does not appear to fully appreciate the nature of the request, she does react by suggesting that the request appears to be asking about her “personal life.”
[11] Mr. Raguseo indicates that he will provide her with a direction to be completed and signed which authorizes her cell phone provider to release the cell tower data to Aviva. Ms. Ebhodaghe objects to what she perceives is an unwarranted intrusion into her privacy.
[12] On December 17, 2020, Mr. Raguseo sends a follow-up email to Ms. Ebhodaghe. In this email, he indicates that he is enclosing a direction which will authorize Ms. Ebhodaghe’s cell phone provider to release cell tower data for the time period from June 14, 2020 to “present” – essentially six months of location data.
[13] Mr. Raguseo also asks for “bank statements for all banking accounts that you may have” and “bank account statements for all debit and credit cards” for the time period of June 14, 2020 to “present” – again a period of six months.
[14] The bank and cell phone provider directions sent by Mr. Raguseo to Ms. Ebhodaghe were not included in the application record. At the request of the court, counsel provided the directions relating to bank records. Counsel did not provide the cell phone provider direction. However, she indicated that Aviva was no longer seeking access to the cell tower location data. As will be reviewed momentarily, this position appears to have been based on information Ms. Ebhodaghe received from her cell phone provider.
[15] Two directions were prepared for banking records. One for a PC Financial Master Card provided by President’s Choice Financial and one for four different bank accounts and a Visa credit card provided by TD Canada Trust. It is clear that Ms. Ebhodaghe revealed all of her banking information in advance to Aviva as the directions specify the specific account numbers for all six financial products.
[33] In terms of the request for an order compelling documentary production, I am not remotely satisfied that the scope of permissible examination would include production of cell tower data and banking data that includes the specific locations where Ms. Ebhodaghe spent her money over many months.
[34] To be blunt, these requests are abusive and unnecessarily invasive of Ms. Ebhodaghe’s privacy rights. Condition 6(4) of the Statutory Conditions authorizes an insurer to obtain information relevant to assessing its contractual obligations. It does not authorize a broad, unfettered sweep through the intimate details of a person’s movements and spending habits over many months.
[35] On this point, I take absolutely no consolation from counsel’s offer to accept redacted banking records which merely reveal the location where a purchase was made and the date. First, this offer was not made anywhere in the materials or set out in the directions which Aviva wanted Ms. Ebhodaghe to sign. Second, even with the store name and item description redacted, the information sought nonetheless amounts to a significant and unwarranted invasion of privacy.