SABS

In personal injury actions surveillance is often used by an insurance company to discredit a Plaintiff and to catch them engaging in certain activities they allege they are unable to perform.

During the litigation process the issue of surveillance often becomes contentious. While a Defendant might retain surveillance they don’t end up disclosing it. The Ontario Rules of Civil Procedure require that if you intend to rely on such surveillance you have to disclose it 90 days before trial.

All parties should be aware of the disclosure obligations regarding surveillance. A recent Ontario case, Marchese v Knowles 2009 CanLII 12116 (ON S.C.) lays out some of these obligations.

The principals from Marchese are essentially identical to Walker v. Woodstock District Chamber of Commerce (2001) by the Divisional Court.

According to these cases if a party has surveillance it should disclose:

1. Dates, times and precise locations;
   
2. particulars of the activities and observations made, and
   
3. the names and address of the persons who conducted the surveillance.
   

Although, the surveillance itself does not need to be provided the particulars as referenced above does. In fact, Marchese, even states that particulars of the log notes should be produced as well.

Finally, the rules are slightly different when dealing with surveillance in the context of hearings before the Financial Services Commission of Ontario (FSCO). FSCO requires that if you intend to rely on surveillance you must deliver all the raw material generated by the investigators and their contact particulars. Failure to do so, could have grave consequences for the party who intends to rely on the surveillance.