Navigating life during a personal injury claim is hard; at times, defence counsel’s investigation of your claim can make it even harder. For instance, did you know that if you are injured in a motor vehicle accident, the defence may – in some circumstances – hire a private investigations company to take surveillance of you going about your daily life?

Rest assured that surveillance in personal injury claims is relatively common and can even help your case by showing the defence how you have been affected by the accident. Furthermore, an experienced personal injury lawyer will know to request details of what the surveillance shows (referred to as “particulars”) from the defence so you are prepared to address any issues arising from it well in advance of any examinations or hearings. But what happens when the defence tries to keep the surveillance particulars from you?  

In a recent case, Zeller v. Volpe-Scornaienchi, the defence refused to provide particulars of the surveillance taken of the claimant. Thankfully, the court determined that the defence’s refusal to share this information was inappropriate. This case – which is discussed in further detail below – demonstrates the need to engage an experienced personal injury lawyer who will know what information you are entitled to and will fight for your rights when the defence refuses to recognize them.

Defendants Attempt to Delay Release of Surveillance Results

The claimant suffered injuries after hitting the back of the defendant’s car with his bicycle.  

Following the accident, the defence obtained two reports describing surveillance of the claimant that had been conducted by a private investigations company. The personal injury lawyer found out about the surveillance during their examination of the defendant and asked for a summary of that surveillance. The defence said “no” on the basis that the claimant had not been examined and might tailor his evidence if he knew what the surveillance had shown.

The Test for Withholding Surveillance Details of Personal Injury Claimants

The defence was required to provide surveillance particulars to the claimant, there was no debate about that. Rather, the question was whether the defence could wait until after the examination for discovery to provide them.   

Typically, surveillance particulars are supposed to be provided before examination for discovery of the person who was the subject of the surveillance. In certain circumstances, the party in possession of the surveillance can wait until after the discovery has happened before producing the particulars if there is a strong likelihood the claimant will adjust their evidence if the disclosure is made prior to examination. The court, in this case, noted that the standard for meeting this requirement is strict; therefore, it is hard for the defence to justify withholding this information.

The defence argued that production should be delayed because there were inconsistencies between what the claimant had been surveilled doing and what was reported in the claimant’s specialists’ reports. However, the judge (who reviewed both the surveillance reports and the specialists’ reports when making their decision) did not observe any discrepancies.  The court ultimately determined that there was no real likelihood that the plaintiff would “tailor his evidence” if the surveillance report were disclosed to his lawyer in advance of his examination for discovery.

What This Decision Means for Personal Injury Claimants

This decision is a good reminder of the challenges claimants can face during a personal injury claim. Claimants should not only know that they may be the subject of surveillance during their claim, but that the defendant may try to delay the production of details regarding that surveillance in advance of important stages of the case, such as their examination for discovery. These challenges emphasize the need to have a lawyer on your side who understands your rights and will ensure they are protected throughout the litigation process. 

Experienced Personal Injury Lawyers Serving Eastern Ontario and North Bay

At Tierney Stauffer LLP, our experienced personal injury lawyers understand your rights and will fight tirelessly to preserve them. Let us focus on the legal and procedural aspects of your claim so you can focus on what matters most – getting better. If you have been involved in an accident and suffered injuries, we are here to help.   

Our lawyers recognize that no two personal injury claims are the same, which is why we give each claim the personalized attention needed to protect your rights and bring about the best possible outcome. Call us at 1-888-799-8057 or contact us online to set up a free consultation with one of our experienced personal injury lawyers.


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