Canada: The Line Separating Acceptable Investigations From Intrusive Investigations

Last Updated: October 2 2019
Article by Mike Adlem

In the recent decision of Williams v. Sekhon 2019 BCSC 1511 the B.C. Supreme Court examined the line between an acceptable investigation of a personal injury plaintiff conducted by a defendant's insurer and an overly intrusive investigation which could result in special costs being awarded against a defendant. 

The case involved an unexceptional car accident that resulted in a law suit.  Liability was admitted and at the conclusion of the trial, the plaintiff, Mr. Williams, was awarded damages totalling approximately $850,000. The defendant's automobile liability insurer was ICBC and during the trial the plaintiff's lawyers argued that special costs should be awarded to the plaintiff "on the basis that the investigators working for the defendant's insurer 'grossly exceeded' the legitimate interests of an insured defendant to conduct an investigation into the validity of a personal injury claim and the consequential harm the investigation caused Mr. Williams by increasing 'his depression and anxiety and his attendant feelings of embarrassment, shame and low self worth.'"

At the start of the trial the plaintiff raised the issue of the alleged overly intrusive investigation and as a result, the defendant disclosed various records that pertained to the extent, frequency and nature of the investigation. During the trial, the defendant called several witnesses who were representatives of the four investigation and adjusting firms retained by ICBC to investigate the plaintiff and his claim from 2015 to 2019.

The Court noted that ICBC had formal "Performance Standards for Private Investigators" which recognized that an investigation into the activities of a plaintiff, if not undertaken properly, has the potential to be intrusive, upsetting and intimidating. The Standards included instructions such as:

  1. The degree of investigation must be proportionate to the complexity and risk associated with the claim. Investigators must use common sense regarding the amount of information gathered. 
  2. Reports must not contain the investigator's opinion or unsubstantiated comments.
  3. If asked for identification, the investigator must provide his name and advise that he or she works for an investigation firm employed by ICBC.
  4. Conduct investigations in a manner that will not alarm claimants or anyone else or give anyone cause for apprehension for public safety and security. 
  5. Investigations must be carried on in the least obtrusive way possible. 
  6. Do not enter private property of the person being investigated except when the property is used for a commercial purpose and the investigation relates to that commercial purpose.
  7. Do not use a pretext or misrepresentation to gain access to any premise. 
  8. Make all reasonable efforts to protect the privacy of individuals not under surveillance. 

The Court accepted the right of ICBC to investigate those activities of a plaintiff that are relevant to the claim being advanced. The Court noted that in personal injury cases, defendants' insurers are at a disadvantage. In the absence of independent medical examinations and investigations, defendants have a limited ability to test a plaintiff's claim and the evidence of a plaintiff and his or her witnesses.  However, the Court noted that there are limits with respect to the object of an investigation, the degree of investigation that is appropriate and the manner in which an investigation is conducted. 

The Court noted that in this case, a claim exceeding $2 million was advanced and that the plaintiff asserted that his work, recreational activities and social activities were all affected by the accident and accordingly, some investigation of each of these areas in Mr. Williams' life was justified. 

The Court also noted that ICBC has three types of investigations it conducts and in this case it conducted all three:

  1. Open Source Investigations involve searching public internet and social media sites to obtain information about a plaintiff's activities and level of function. The Court noted that as long as investigators do not breach social media privacy settings, searching social media sites for publicly available information maintained by a plaintiff, family and friends is acceptable. The Court also approved of searches for information at the Land Title Office about property ownership as well as vehicle ownership searches to the extent that those resources are used in a limited and fact specific way.
  2. Surreptitious surveillance of a plaintiff to ascertain whether a plaintiff's actual or observed level of function and activity aligns with what a plaintiff asserts he or she is capable of doing is fine, however continuing surveillance after a plaintiff becomes aware of it with the object of trying to intimidate a plaintiff would be unacceptable. 
  3. Witness interviews and the Court stated that is this is the form of investigation that in some senses is most risky. The Court noted that interviews are not inappropriate, however judgment and discretion must be exercised when conducting interviews. The Court was critical of the fact that an investigator contacted multiple witnesses within the space of a few days without waiting for witnesses he left messages for, to respond before contacting another witness. The Court referred to this as a "shotgun approach" and noted that it is inevitable that a plaintiff would be upset by a shotgun approach to contacting witnesses. The Court preferred an approach where an investigator reaches out to a single witness and it is only after that witness declines to be interviewed or does not return a message that the next witness is contacted. The Court noted that attending at a witness's home to conduct an interview has the aim of being aggressive and is likely to get back to a plaintiff and cause embarrassment. 

The Court also noted that it would be wrong for an investigator to misrepresent his or her status or identity and it would also be wrong to conduct sweeping, simultaneous interviews of large groups of people such as a plaintiff's teammates, co-workers or guests at a wedding attended by a plaintiff in order to ascertain if those potential witnesses may have information and whether they are willing to speak to an ongoing investigation. 

The Court declined to award special costs in this case as a punitive sanction for an overly intrusive investigation for two reasons:

  1. The investigation in this case was not undertaken with the object of causing the plaintiff upset or distress and to the extent that it had that affect, it was inadvertent.
  2. This decision is a decision of first instance and until this decision, there was no formal or explicit direction from the courts identifying when an investigation is overly intrusive. 

There can be no doubt that in the future, when adjusters and private investigators retained by defendants' liability insurers engage in the activities the Court was critical of, plaintiff counsel will seek special damages and rely on the warning given by the Court in this case.   

For convenience, set out below is a simple chart summarizing the guidance provided by the Court

 

Appropriate investigation of a personal injury plaintiff (in most circumstances) Inappropriate investigation of a personal injury plaintiff (in most circumstances)
1. Obtain information including pictures posted on public social media sites by the plaintiff, family and friends. Breach social media privacy settings.
2. Conduct land title and motor vehicle searches to determine ownership in a limited and fact specific way. Conduct ownership searches in a way that is not limited or fact specific.
3. Conduct surreptitious surveillance of a personal injury plaintiff. Continue surveillance after a plaintiff becomes aware of it.
4. Conduct incremental telephone interviews of witnesses and provide accurate identification and status information. Use a shotgun approach to telephone interviews whereby phone calls are made simultaneously to a large number of potential witnesses or arrive unannounced at the home of a witness in an attempt to obtain information (this practice is considered "inherently invasive"). It would be wrong for the interviewer to misrepresent his or her status or identity.

A helpful tip liability insurers can take away from this decision is the fact that they should develop and distribute guidelines to adjusters and investigators they use, setting out acceptable conduct that should be followed and unacceptable conduct that must be avoided, similar to the ICBC Performance Standards for Private Investigators described above.

This article was co-authored by Ryan Adlem, a second year law student at Queen's University

Read the original article on GowlingWLG.com

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.

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