Employers or insurers looking to conduct video surveillance
had better watch out — improperly conducting
surveillance can attract stiff penalties in Québec. In
February 2008, the Québec Court of Appeal ordered
Penncorp Life Insurance Company to pay $125,000 in punitive
damages to the insured, André Veilleux, after Penncorp
tried to obtain evidence even though it knew the surveillance
would infringe the privacy right of the insured, protected
under Section 5 of the Québec Charter of Rights and
Mr. Veilleux, a 54-year-old who had operated a garage from
1982 to 2000, liquidated his business due to illness. He began
receiving monthly disability insurance payments from Penncorp
in 1998. In April 1999, Penncorp stopped issuing the disability
payments. Mr. Veilleux sued Penncorp in 2001 for payment of the
benefits. During the trial, Penncorp sought to introduce
videocassettes from surveillance operations conducted in May
and August 2002.
The Québec Superior Court refused to admit the tapes
on the basis that the insurer lacked reasonable grounds to
conduct surveillance and ordered Pencorp to pay the monthly
disability payments Mr. Veilleux should have received from
April 1999 to February 2003. The Court of Appeal upheld this
decision in March 2004.
In June 2003, Penncorp hired the same investigation company
to conduct another surveillance operation of Mr. Veilleux and
his son. Mr. Veilleux and his son sued Penncorp for invasion of
privacy in August 2005. In September 2006, the Québec
Superior Court ordered Penncorp to pay Mr. Veilleux $12,500 for
moral damages and $25,000 in punitive damages for invading Mr.
Veilleux's right to privacy, as well as flaunting the
judiciary. Both Mr. Veilleux and Penncorp appealed the
decision. In its February decision, the Québec Court of
Appeal upheld the lower court judgment but increased the
damages award to $125,000.
McCarthy Tétrault Notes:
The Court of Appeal had previously ruled in the
Bridgestone case that surveillance would not violate
the Charter in all instances. In deciding whether to
admit surveillance evidence, the court will consider
the surveillance was rationally justified and obtained
through reasonable means;
the company had a rational justification for conducting
the surveillance before making the decision to conduct the
surveillance — motives cannot be constructed after
any shadowing was necessary and was conducted in the
least intrusive manner possible;
the company took steps to verify the information through
less intrusive means before resorting to surveillance;
surveillance, carried out in public places, infringed the
Intentional intrusion occurs when the author of the illicit
conduct demonstrates the intention to invade the right of
privacy of another or acts knowing that infringement is very
likely to occur. In light of the Veilleux decision,
evidence obtained in such circumstances may not be admissible
in court. Furthermore, Section 49 of the Charter
provides that the victim is entitled to obtain compensation for
the moral or material prejudice resulting therefrom and that
the court may condemn the author to punitive damages. The
plaintiff has to demonstrate that the behaviour of the author
is outrageous or unreasonable, not justified, severe and
In Mr. Veilleux's case, the surveillance carried out
in May 2002 was an illicit infringement of his right to
privacy. The surveillance carried out in August 2002
constituted an excessive intrusion because it was carried out
after the court had refused Penncorp the right to examine Mr.
Veilleux and to request a medical examination. Penncorp took
the matter in its own hands and sought justice itself. Penncorp
tried to avoid the effects of the court's ruling by
conducting surveillance systematically and repetitively over
three days, in non-public places. Its financial motivation
appeared to be malicious.
The Veilleux decision demonstrates the increasing
importance that courts are affording privacy rights in the
context of litigation. Insurance companies and employers that
might have interpreted the Bridgestone decision as
allowing surveillance should carefully consider whether the
surveillance is warranted and should exercise prudence when
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