• homeslide-220513-04 FAIR – supporting auto accident victims through advocacy and education
  • homeslide-220513-03 FAIR – supporting auto accident victims through advocacy and education
  • homeslide-220513-02 FAIR – supporting auto accident victims through advocacy and education
  • homeslide-220513-01b FAIR – supporting auto accident victims through advocacy and education

Surveillance

‘FAIR – supporting auto accident victims through advocacy and education’

We endeavor to provide relevant information and news articles on surveillance, an issue that deeply touches many accident victims.

FAIR is interested in your stories about surveillance and how it has affected your world and your ability to function. You can email us your stories at: fairautoinsurance@gmail.com

Service Ontario Security guard or private investigator licence (individuals)                   https://www.ontario.ca/page/security-guard-or-private-investigator-licence-individuals

Ministry of Community Safety and Correctional Services

Private Security & Investigative Services – Training Syllabus for Private Investigators http://www.mcscs.jus.gov.on.ca/english/PSIS/Training/PrivateInvestigatorSyllabus/PSIS_PI_syllabus.html

__________________________________________

How your social media posts could affect future personal injury lawsuits

So is there anything you can do to protect your credibility in the event of a future lawsuit?

Bent said the best advice is to follow the ol’ “think before you post” mentality.

In the event that you are in an accident, you might want to avoid posting about the incident right away. For example, if you were in a car accident and posted an update like, “I was just in an accident – thank god no one was hurt,” but an injury presented itself later – that could be used against you in court.

http://globalnews.ca/news/2543024/how-your-social-media-posts-could-affect-future-personal-injury-lawsuits/?utm_content=buffere5dff&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

__________________________________________

Bishop-Gittens v Lim, 2015 ONSC 3553 (CanLII)

[18]           In addition, any prejudicial effect by the late failure to disclose the surveillance can be addressed through an adjournment of the trial if requested by the plaintiff’s solicitor.  Any prejudice with respect to costs can be addressed by requiring the defendant to pay costs to the plaintiff arising out of any adjournment.  In order to further minimize any potential prejudice, I further order that the defendant forthwith produce copies of the video surveillance to the plaintiff, so the plaintiff will have the opportunity to view the surveillance video prior to giving her evidence.

[19]           This order is limited to the defendant relying on the surveillance evidence for purposes of impeachment.  This is consistent with the provision of rule 30.09, which provides that where a party has claimed privilege in respect of a document and does not abandon the claim by giving notice in writing and providing a copy of the document at least ninety days before the commencement of trial, the party may not use the document at trial, except to impeach the testimony of a witness or with leave of the trial judge.

[20]           I also note that the proposed disposition is similar to that which was approved by the Court of Appeal in Iannarella, in referring to the case of Smith v. Morelly, 2001 ONSC 6834 (Ont SCJ).

[21]           For the above reasons, I conclude that the prejudicial effect of the surveillance does not outweigh its probative value and that the defence should be entitled to refer to the surveillance evidence.

[22]           Case law and common sense makes it clear that surveillance evidence is powerful evidence at a trial.  The obligations of the defence to disclose surveillance evidence in accordance with the Rulesis an important responsibility and is not to be taken lightly.  There is always the potential for prejudice, which must be carefully reviewed if the defence fails to meet its obligations under theRules.  While I agree that in this case, the balance favours allowing the defence to use the surveillance evidence for purposes of impeachment, it is disappointing to see a case where the defence has failed to honour its obligations under the Rules, especially when the Court of Appeal has so recently dealt with this issue in a clear and unambiguous manner.

_________________________________________________

Evidence found on social media increasingly deciding factor in personal injury cases

After being involved in two car accidents, Sarah Tambosso testified that her life completely changed — she was depressed, a “homebody,” and her only friends were on the Internet.

http://news.nationalpost.com/news/canada/evidence-found-on-social-media-increasingly-deciding-factor-in-personal-injury-cases

________________________________________________

Iannarella v. Corbett, 2015 ONCA 110  http://www.ontariocourts.ca/decisions/2015/2015ONCA0110.htm

The Disclosure of Video Surveillance

[40]       As noted in Ceci, privileged documents must be included in a party’s affidavit of documents. Under rule 30.03(2)(b), video surveillance is typically identified in Schedule B to the affidavit of documents as a privileged document. The plaintiff then has the opportunity to seek full particulars of the surveillance from the defence at examination for discovery; the “particulars” of surveillance that must be disclosed on request include the date, time and location of the surveillance, as well as the nature and duration of the activities depicted and the names and addresses of the videographers (for example, see Landolfi, at para. 22).

[41]       This practice of disclosing particulars is consistent with the Divisional Court’s finding in Murray v. Woodstock General Hospital Trust (1988), 66 O.R. (2d) 129 (Div. Ct.), where the court held, at para. 13, that a person examined for discovery must comply with the plain meaning of the words in rule 31.06(1) and answer questions about the contents of the surveillance “even though to do so would require the disclosure of information contained in a privileged document.” While the surveillance films themselves remain privileged, the facts disclosed by the films do not. (Machado v. Berlet, (1986) 57 O.R. (2d) 207 (H.C.J.), at para. 6)

[42]       As Howden J. held in Beland v. Hill, 2012 ONSC 4855, at para. 50, “the discovery rules are to be read in a manner to discourage tactics and encourage full and timely disclosure in order to encourage early settlement and reduce court costs.” See also Ceci, at para. 10, and Arsenault-Armstrong v. Burke, 2013 ONSC 4353, at para. 11.

[43]       Justice Osborne explained that a party’s obligation to disclose the contents of surveillance, even if it has no intention of relying on that evidence at trial, “comes from a broad view of the undertaking given on discovery and … the requirement of full disclosure emerging from a libera[l] interpretation of the new Rules of Civil Procedure.” (Niederle v. Frederick Transport Ltd., [1985] O.J. No. 1608 (H.C.J.), at para. 17)

[44]       Pre-trial disclosure of surveillance in a personal injury action is particularly important since “the impact of video evidence can be powerful.” (Landolfi, at para. 52) Disclosure also provides the parties with the opportunity to carry out a realistic assessment of their positions and therefore facilitates settlement. Justice Hambly explained the important role of disclosure in Arsenault-Armstrong:

The surveillance evidence will assist the plaintiff in evaluating the strength of her case and arriving at her settlement position prior to trial. Even if the defendant will not be able to use the surveillance evidence for impeachment purposes, as a result of its non-disclosure, the defence will gain knowledge of the plaintiff from the surveillance evidence which it will be able to use to its benefit. (Para. 11)

[45]       However, the surveillance evidence can only serve to encourage settlement if it is disclosed in the affidavit of documents and the opposing party has the opportunity to seek particulars at examination for discovery. Here, for example, the appellants did not accept a substantial settlement offer; perhaps they would have accepted it, thus avoiding a lengthy and costly trial, had the respondents properly disclosed their surveillance evidence.

[46]       Given the interests of fairness and the objectives of efficiency and settlement, the court expects the parties to comply fully and rigorously with the disclosure and production obligations under the Rules.

______________________________________________

Auto collision lawsuit defendants’ use of video surveillance evidence without disclosure in affidavit breached civil procedure rules, Ontario appeal court rules

The Court of Appeal for Ontario has overturned an earlier decision in a lawsuit arising from an auto collision, finding that the defendants breached the province’s Rules of Civil Procedure in making a video of surveillance of the plaintiff an exhibit – and cross-examining the plaintiff on its contents – without having disclosed the existence of surveillance in an affidavit of documents.

http://www.canadianunderwriter.ca/news/auto-collision-lawsuit-defendants-use-of-video-surveillance-evidence-without-disclosure-in-affidavit/1003484801/

______________________________________________________

Laushway v. Messervey, 2014 NSCA 7 (CanLII), http://canlii.ca/t/g2v4t

[1]            This is a case of first instance.  To this point the issues on appeal have not been considered by this Court.  The principal question that arises in the somewhat unusual circumstances of this case is how does one balance, and when necessary establish, a hierarchy between legitimate privacy interests on the one hand and fairness to litigants in the search for truth on the other?

[2]            Here, the Chambers judge granted the defendants’ motion and issued a production order compelling the plaintiff to turn over his computer so that a forensic analysis could be conducted of its hard drive, on the basis that it was thought to contain relevant information which was necessary for a fair trial of the dispute on the merits.

[57]        The plaintiff has put his computer use squarely in issue.  That is how he earns his income and he blames the defendants for causing that significant financial loss.  Based on the circumstances in this case there is a clear, direct link between the hours Mr. Laushway says he spent at his computer, and his income as a salesman selling health products on line. That is what makes this information relevant.  The respondents should be entitled to access that evidence in order to test the extent and reliability of the appellant’s claim.  As counsel for the respondents admitted at the appeal hearing in this Court, her attempt to have Mr. Laushway’s computer forensically analysed may well backfire on them.  In other words, the ultimate analysis may in fact corroborate the appellant’s claim.  However, that is a risk the respondents are prepared to take.

____________________________________________

WHAT IS STALKING?

http://www.victimsofviolence.on.ca/rev2/index.php?option=com_content&task=view&id=363&Itemid=53

There are varying perceptions of what constitutes stalking. Some believe that any harassing behaviour constitutes stalking, others believe that the behaviour must be threatening for it to be defined as stalking. Some believe that stalking is based solely on infatuation, others believe it has nothing to do with sexual attraction but rather power and control. Some definitions of stalking include:

“Generally it consists of repeated conduct that is carried out over a period of time and which causes you to reasonably fear for your safety or the safety of someone known to you” (RCMP, 2007).

“The Bureau of Justice Statistics defined stalking as a course of conduct, directed at a specific person on at least two separate occasions, that would cause a reasonable person to feel fear” (Bureau of Justice Statistics, 2009).

___________________________________________

Rule 40.1 of the Code, provides:

40.1  If a party intends to rely on any portion of surveillance or investigative evidence, including videotapes, photographs, reports, notes and summaries of surveillance observations or investigations, at least 30 days before the hearing, the party shall provide:

(a)   the names and qualifications of the persons who secured the investigative or surveillance evidence, the dates, times and places where any surveillance or investigation was undertaken; and

(b)   copies of all videotapes, photographs, investigative reports, notes and summaries taken or prepared in connection with the issues in dispute.  __________________________________________________

How to Best Leverage the Use of Surveillance and Investigation in Court Part 3http://blog.mcleishorlando.com/blog/how-to-best-leverage-the-use-of-surveillance-and-investigation-in-court-part-3/
If a defendant wishes to use surveillance or investigative material as substantive evidence at trial, the defendant must comply with Rule 30.09, which sets out strict procedural requirements.  Rule 30.09 requires the defendant abandon its privilege claim in writing, and provide a copy of the video, report or document to the plaintiff at least ninety days before the commencement of trial. Failure to comply with Rule 30.09 will limit the use of the material to impeachment purposes only, except with leave of the trial judge.  The court has taken a strict approach to Rule 30.09 as can be seen in Youseef v. Cross, Giroux v. LaFrance and Smith v. Morelly.
____________________________________________________________________________

Rowe and Western Assurance  [+Arbitration, 2014-03-05, Reg 403/96.  Motion FSCO 4143.  https://www5.fsco.gov.on.ca/AD/4143

  Result:
 
1.                 Western is not entitled to the production of records for the durations sought. Rather, Ms. Rowe is ordered to produce the following documentation within 30 days of the date of this Motion:
 
a) Applicant’s STD/LTD file commencing: 1 year prior to the accident to date;
b) Applicant’s Canada Pension Disability file: 1 year prior to the accident to date;
c)  Applicant’s ODSP file: 1 year prior to the accident to date;
d)  Applicant’s decoded OHIP summary commencing: 1 year prior to the accident to date;
e)  Summary of extended healthcare benefits available through the Applicant’s common-law husband and the insured’s corresponding extended healthcare file;
f)             Clinical notes and records of the Applicant’s treating doctors and curriculum vitae from each: 1 year prior to the accident to date;
g)  Applicant’s employment file from “Dollies & Boxes Unlimited” – complete file; and
h) Applicant’s employment file from the employer at which the Insured last worked,      prior to Dollies & Boxes Unlimited: commencing 3 years prior to the accident-  
     DENIED.
 
2.                 Ms. Rowe is entitled to the production of records as sought. The Insurer is ordered to produce all outstanding documentation from the pre-hearing held on July 5, 2013 within 30 days of the date of this Motion, namely:
 
a)  Surveillance details, if any;
b)  Adjuster log notes, up to date of Report of Mediator (November 18, 2012) as consented to by Western;
c)   Adjuster e-mails, up to date of Report of Mediator (November 18, 2012) as consented to by Western;
d)  Letters to and from I.E. doctors and/or clinical coordinators requesting assessments;
e)  Breakdown of $19 000.00 spent on I.E. Assessments;
f) Amount and details of money spent of S. 24 assessments;
g)  Curriculum Vitae’s of all I.E. Assessors; and
h) Complete copy of adjuster’s file.
____________________________________________________________________________

Young v. Comay, 2013 ONSC 7552 (CanLII), http://canlii.ca/t/g29z2

(c)   the plaintiff shall, within 45 days, serve a Supplementary Affidavit of Documents disclosing all photographs of herself, in her possession, power or control, which are relevant to any matter in issue, including photographs depicting her engaged in physical, recreational, housekeeping, home maintenance or work-related activities for two years prior to the accident and during any period following the accident in respect of which she is claiming damages on the bases set forth in the Statement of Claim and shall produce to the defendant copies of photographs in respect of which no privilege is claimed;

(d)   counsel for the plaintiff shall with 45 days review the plaintiff’s Facebook page and photographs posted thereon and the plaintiff disclose photographs and postings which are relevant to the action by means of a Supplementary Affidavit of Documents Claim and shall produce to the defendant copies of photographs and postings in respect of which no privilege is claimed;

(e)   in the event that the defendant is not satisfied with the response of the plaintiff respecting production of relevant photographs and postings to her Facebook profile, the defendant may, within 60 days following the response of plaintiff’s counsel, as aforesaid, cross-examine the plaintiff on her Affidavit of Documents;

(f)   the plaintiff shall preserve the content on her Facebook profile and wall in its current form pending completion of the foregoing, and pending the disposition of any further motion by the defendant respecting the adequacy of production from the plaintiff’s Facebook profile, which shall be brought within 90 days of the response of counsel for the Plaintiff respecting the content of the plaintiff’s Facebook profile;

__________________________________________________________

Garacci v. Ross, 2013 ONSC 5627 (CanLII), http://canlii.ca/t/g0d7v 

[9]          On motions of this nature it must be emphasized that the “semblance of relevance” test no longer applies. It has been replaced with the stricter “relevance” test. Restraint must be exercised in the discovery process. See Stewart v. Kempster2012 ONSC 7236 (CanLII), 2012 ONSC 7236 (S.C.J.) at paragraph 11. Christina’s evidence is that Facebook is her photo album. It is where she keeps all of her personal pictures to view and to share with friends. In my view, the defendant’s request is tantamount to a request that Christina produce every photograph taken of her since the accident. This is an extremely broad request and in my view amounts to nothing more than a high tech fishing expedition. The defendant simply wishes to rummage through 1100 of Christina’s personal photographs in the hope that something useful or interesting might turn up. That is not an appropriate or proportional form of discovery.

[10]      I have therefore concluded that the documents requested by the defendant are not relevant to the matters in issue in this action. They need not be produced.

FSCO interpretations on surveillance practices leave a lot to be desired http://www.claimscanada.ca/issues/article.aspx?aid=1002557701

Canada: Under The Hood Of Usage-Based Car Insurance: FSCO Issues Guidance On Privacy, Permissible Data Use, And Pricing http://www.mondaq.com/canada/x/270112/Data+Protection+Privacy/Under+The+Hood+Of+UsageBased+Car+Insurance+FSCO+Issues+Guidance+On+Privacy+Permissible+Data+Use+And+Pricing

Personal Injury Law: Service via Facebook should become the norm

http://www.canadianunderwriter.ca/news/defined-policies-key-when-using-social-media-in-investigations-police-constable/1002304423/

http://www.lawtimesnews.com/201304019709/Commentary/Personal-Injury-Law-Dupont-provides-little-comfort-on-protecting-legal-advice-from-disclosure

Arsenault-Armstrong v. Burke et al, 2013 ONSC 4353 (CanLII),  http://canlii.ca/t/fzdrr

Dupont v. Bailey et al., 2013 ONSC 1336 (CanLII)  http://canlii.ca/t/fwd1g

http://www.lawtimesnews.com/201304089716/Headline-News/Insurer-to-pay-$200K-in-punitive-damages

Fernandes v. Penncorp, 2013 ONSC 1637 (CanLII)  http://canlii.ca/t/fwmmj

http://www.thompsonsnews.com/story.asp?story=1715

http://www.lawyersweekly.ca/index.php?section=article&articleid=1840

http://www.canadianunderwriter.ca/news/fsco-lays-out-how-insurers-should-take-on-usage-based-insurance-telematics-programs/1002069441/

http://www.thestar.com/business/personal_finance/insurance/2008/08/16/the_insurance_fraud_squad.html

http://www.canadianlawyermag.com/4157/judge-orders-law-student-to-hand-over-facebook-pics.html

http://www.thomsonrogers.com/drm-is-facebook-information-relevant

http://www.thomsonrogers.com/drm-disclosure-of-facebook-information

http://www.nytimes.com/2013/02/07/technology/personaltech/protecting-your-privacy-on-the-new-facebook.html

Private Security and Investigative Services Act, 2005 S.O. 2005, CHAPTER 34 Last amendment: 2009, c. 33, Sched. 9, s. 11. http://www.elaws.gov.on.ca/html/statutes/english/elaws_statutes_05p34_e.htm

http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_070363_e.htm

http://cspis.com/exampreparation.html#PrivateInvestigation

http://www.centreforsecurity.com/courses.html#

http://www.centreforsecurity.com/

Comments are closed.