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

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.

Events from this Firm
7 Nov 2019, Seminar, Birmingham, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

14 Nov 2019, Seminar, London, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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