Canada: Seeing Is Believing

The assessment of damages in personal injury claims is often challenging when dealing with injuries that cannot be measured objectively. Cases involving plaintiffs who allegedly suffer from chronic pain, fibromyalgia, or other conditions involving the incorrigible experience of pain, present obvious problem with respect to quantifying damages. Medical professionals must rely on the subjective reports of plaintiffs in assessing their condition. Often, these cases result in a scenario where the opinions of medical experts are pitted one against the other, resulting in uncertainty and risk for the parties.

Although the Supreme Court of Canada has concluded that "chronic pain patients are suffering and in distress, and that the disability they experience is real"1, there nonetheless exist unscrupulous claimants that feign or exaggerate chronic pain symptoms in an effort to cash in on claims against insurance companies.

In this way, chronic pain has become a catchbasin for personal injury claims that cannot be couched in more objective injuries. Because self-reports factor heavily into medical assessments for chronic pain, it can be very challenging to distinguish between plaintiffs that legitimately suffer from chronic pain and those who do not. The plaintiff's credibility becomes a central issue in the litigation, and counsel often look to medical experts for guidance. While it is possible to build a defence based on expert medical opinion, it helps to have additional evidence to tip the balance in favour of a successful defence. Surveillance, when properly gathered, can be an effective tool to impugn a plaintiff's credibility and challenge the validity of her claim.

Surveillance is a powerful tool in cases involving plaintiffs with chronic pain, because it can lend objectivity to a case rife with subjective reporting. Continuous surveillance evidence over a period of several days can greatly assist defence counsel to either build its case, or justify early settlement. Video footage that shows a plaintiff engaged in physical activity that belies her alleged physical limitations, can have a significant impact on the integrity of the plaintiff's claim. Conversely, surveillance that fails to depict the plaintiff for a sufficiently continuous time period, or that only shows the plaintiff engaged in physical activities that are not strenuous, will not harm the defendant's case. Overall, the relative cost of surveillance evidence as compared to its benefit, often makes it a cost-effective tool in personal injury litigation.

There are, however, important rules that defence counsel must abide by when gathering surveillance. These disclosure requirements are discussed below, and they suggest that surveillance should be gathered and disclosed early in the litigation process in order to encourage early resolution of the matter, if at all possible.

...the following
outlines the rules regarding the production of surveillance...

Disclosure at Minimum Whether or Not There Is Reliance on the Surveillance

At minimum, surveillance evidence must be disclosed in defence counsel's Affidavit of Documents, regardless of whether the defendant intends to rely on the surveillance at trial. There is some discretion with respect to what must be produced to opposing counsel, and the following outlines the rules regarding the production of surveillance, depending on how defence counsel intends to use it.

If counsel intends to rely on the surveillance evidence at trial and opposing counsel requests production of the surveillance, then defence counsel must provide the following particulars about
the records:

1. dates, times and precise locations of the surveillance;
2. particulars of the activities and observations made; as well as,
3. the names and addresses of the persons who conducted the surveillance.2

This is consistent with Rule 31.06(2) of the Ontario Rules of Civil Procedure which requires that "the names and addresses of persons who might reasonably be expected to have knowledge of the transactions or occurrences in issue in the action" be disclosed on examination for discovery.

The Ontario Superior Court has held that the addresses of the investigators who conducted the surveillance must also be disclosed. However, the court draws the line when it comes to requests for resumes of investigators, or the volume of work that investigators perform for their clients on other matters, and has refused to require production of these documents.3 Ontario courts have
also held that although an investigator's notes need not be disclosed, the plaintiff is entitled to
particulars of those notes. However, where a defendant refuses to undertake to produce "the
particulars of any future surveillance, including the dates and times of the surveillance and a
description of any videos or photographs", the defendant cannot be compelled to do
so.4 Additionally, both parties in a dispute have an ongoing obligation under Rule 31.09(1)(b) to provide an updated affidavit of documents. As such, if surveillance evidence is acquired after discoveries then the Affidavit of Documents must be updated, otherwise a defendant can be penalized in costs.5

Disclosure Requirements for Substantive and Impeachment Evidence

The disclosure requirements of evidence used for substantive purposes differ from those used for impeachment purposes.

The objective of gathering surveillance evidence in personal injury cases is so that it can be used either as substantive evidence or for impeachment purposes. If the surveillance is good, and it reveals that the plaintiff has physical abilities that contradict the limitations they have alleged in their statement of claim or have confirmed during examinations for discovery, this evidence can be used to impugn the validity of the plaintiff's claim. In some cases, even if the court accepts that a plaintiff honestlysuffers from chronic pain, surveillance can persuade the court to find that the degree of plaintiff's disability is not as significant as reported.6 Depending on how good the evidence is, defence counsel may choose to use it either to impeach the plaintiff's credibility, or to challenge the validity of the plaintiff's claim. The disclosure requirements of evidence used for substantive purposes differ from those used for impeachment purposes.

Rule 30.09 of the Rules of Civil Procedure requires that if surveillance is to be used as
substantive evidence at trial, then counsel must give the opposite party notice of its intention to
use the evidence, and the evidence itself must be produced to the opposite party at least 90 days
before the commencement of trial.7 If counsel fails to do so, the Court will limit the use of that
evidence to impeachment purposes only, except where a trial judge grants leave to use the
evidence for substantive purposes.

The Ontario Court of Appeal in Landolfi v Fargione provided guidance with respect to Rule
30.09 and the use of surveillance evidence for substantive versus impeachment purposes:

...[R]ule 30.09 precluded offering the videos as evidence of Landolfi's physical capacities, but did not foreclose the admission of the videos to challenge the credibility of Landolfi's evidence as to his physical limitations following the accident. Used for impeachment purposes, the videos had the potential to directly undermine the credibility of Landolfi's testimony concerning his physical incapacities and the further potential to undermine the reliability of the opinions formed by Landolfi's medical experts to the extent that those opinions relied on Landolfi's description of his physical incapacities.8

Surveillance that is to be used as impeachment evidence...

Surveillance that is to be used as impeachment evidence does not have to be produced, (except for particulars if requested), but it does have to be disclosed in Schedule B of a party's Affidavit of Documents. However, before surveillance can be used to impeach a plaintiff's credibility, counsel must comply with the requirements of Brown v Dunn, which requires thata witness be given the opportunity to explain or deny the evidence.8 In addition, the court must be satisfied that the surveillance meets the test for admissibility. In Landolfi, the test for admissibility of surveillance as impeachment evidence was found to be one of "relevance to the credibility of a witness on a material matter and a further demonstration that the potential value of the proffered evidence to assist in assessing credibility outweighs prejudicial effect of the evidence."9 In this way, the content of the plaintiff's testimony dictates the relevance of the surveillance, as the objective of the surveillance is to contradict the plaintiff's testimony. In Lis v Lombard, the Court held that the proffered impeachment evidence did not contradict the oral testimony of the Plaintiff and refused to admit the surveillance evidence. This highlights not only the limitation on the use of surveillance for impeachment, but also highlights the importance of a detailed examination for discovery.10

Following Landolfi, discovery rules "are to be read in a manner to discourage tactics and encourage full and timely disclosure in order to encourage settlement and reduce court costs."11 As Landolfi emphasizes, disclosure has practical benefits that can lead parties to properly assess their positions and to adjust their expectations, ultimately limiting the cost of unnecessary litigation.

Concluding Remarks

Surveillance can prove essential to exposing unfounded or exaggerated personal injury claims. Given the limitations that may be imposed on the use of surveillance evidence, defendants must be cognizant of the rules related to surveillance in order to ensure that steps are taken early in the litigation process to protect its efficacy. If obtained early in the litigation process, surveillance can benefit both defendants and plaintiffs, as it has the potential to reveal exaggerated claims, but also to concretize plaintiffs' allegations. Whatever the case, surveillance evidence that reveals the extent of a plaintiff's limitations lends certainty to the litigation process and encourages the parties to take a reasonable approach to settlement.

1 Nova Scotia (Workers' Compensation Board) v Martin;Nova Scotia (Workers' Compensation Board) v Laseur, 2003 SCC 54, [2003] 2 SCR 504 at para 1.
2 Devji v Longo Brothers Fruit Market, [1999] OJ No 1542, 45 OR (3d) 82 (Gen. Div).
3 Marchese v Knowles, [2009] OJ No 1159, 176 ACWS (3d) 71 at para 21 [Knowles].
4 Bell v Brown,2012 ONSC 839, [2012] OJ No 6501.

5 Beland v Hill, 2012 ONSC 4855, [2012] OJ No 3997
6 Hollows v Wood, 2013 BCSC 1991.
7 Rule 30.09 of the Ontario Rules of Civil Procedure or with leave of the Court (see Rule 53.08 of the Ontario Rules of Civil Procedure)
8 (2006), 79 OR (3d) 767, [2006] OJ No 1226.
9 (1893) 6 R 67, HL.
10 Supra note 8 at para 49.
11 [2006] OJ No 2578, 2006 CanLII 21595 (ON SC).
12 Knowles, supra note 3 at para 50.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions