In the recent case of Nemchin v. Green, the court shed
a bit of light on this topic, raising a number of concerns about a
surveillance report in issue. This decision is helpful because it
highlights what makes a surveillance report less accurate in the
eyes of the court. In a detailed discussion about issues with the
accuracy of the surveillance report being proffered, the court
raised the following issues (author's commentary
added):
- In the concluding portion of each of
the surveillance reports, there is a section titled "Video
Review". The investigator described that portion of the
report as being part of a "template". The court
noted that the duration of the video footage and the identification
numbers for the unedited versions of the footage changed from
report to report but the wording otherwise remained the
same.2
(This suggests that
the court does not like templates but prefers
specifics.)
- Support staff, as opposed to the
investigator himself, chose which image stills go into the
reports.3
(This suggests that
an investigator should be the only person preparing their report to
ensure accuracy.)
- The investigator testified that that
support staff look for image stills that "most
describe" the inconsistency or inconsistencies thought to
be identified as between the subject's alleged limitations and
the activities depicted in the footage.4
(This suggests that an
investigator should be the only person preparing their report to
ensure accuracy and that a report should be simply accurate –
cherry picking still images to bulk up a case will be frowned
upon.)
- The subjective descriptions in the
reports are not identified as such. A number of the
investigator's personal observations are included in what is
said to be a summary of the particular segment of the video
footage: The subjective descriptions in the reports are not
identified as such. A number of the investigator's personal
observations are included in what is said to be a summary of the
particular segment of the video footage: "To the extent
that any personal observations are made by an investigator
conducting surveillance of a plaintiff are included in a
surveillance report, those observations must be specifically
identified for what they are."5
(This suggests that a
surveillance report should be completely free of narrative or
interpretation.)
- The investigator was
"overzealous" in his
reporting.6
(This suggests that a
surveillance report should be strictly factual and free of
narrative and interpretation.)
Footnotes
1 Iannarella v. Corbett, 2015 ONCA 110;
Nemchin v. Green, 2017 ONSC 1321; and, Rolley v.
MacDonell, 2018 ONSC 164.
2 Nemchin v. Green 2017 ONSC 1321 at paragraphs 35 and
36.
3 Ibid at paragraph 39.
4 Ibid at paragraph 40.
5 Supra note 2 at paragraphs 53 and 54.
6 Ibid at paragraph 57.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.