Does Surveillance Need to Be Disclosed in Personal Injury Cases?

How Surveillance Is Used to Challenge Credibility in Personal Injury Claims

In personal injury claims—particularly in Atlantic Canada—the use of surveillance by insurance companies has become increasingly common. Surveillance is often used to assess the legitimacy of a claim, evaluate the severity of injuries, or challenge the credibility of the claimant.

However, important legal rules govern when surveillance must be disclosed and how it can be used in court.

Understanding these rules is critical for anyone pursuing a personal injury claim.

The Purpose of Surveillance in Personal Injury Cases

Insurance companies and defendants frequently conduct surveillance to:

• Verify the extent of claimed injuries
• Assess whether a claimant’s activities align with reported limitations
• Challenge allegations of ongoing disability
• Prepare for litigation

Canadian courts have consistently held that surveillance is often conducted in preparation for litigation. As such, it may initially be protected by litigation privilege, meaning it does not need to be disclosed immediately.

For example:

• Murray v. Woodstock General Hospital Trust (1988)
• Davis v. Toronto Transit Commission (2018 ONSC 7527)

In these cases, surveillance was deemed part of the litigation preparation process. Disclosure was required only when privilege was waived or when the evidence was intended to be used at trial.

When Surveillance Must Be Disclosed

Although surveillance may initially be privileged, there are important exceptions.

If the defendant intends to rely on surveillance evidence in court, it must be disclosed. Failure to disclose surveillance can result in the evidence being excluded at trial.

Failure to disclose surveillance can lead to its exclusion from the trial.

Cases such as:

• Thorpe v. Insurance Corp. of British Columbia (2001 BCSC 1086)
• Lanthier v. Volk (2006 BCSC 2092)

confirm that surveillance must be disclosed when privilege is waived—typically during the discovery phase.

In New Brunswick, Rule 31.02 requires disclosure of relevant information intended for use at trial. This includes surveillance evidence, even if it was originally privileged.

Additional decisions reinforcing disclosure principles include:

• Lannarella v. Corbett (2015 ONCA 110)
• Imperial Oil v. Jacques (2014 SCC 66)

These rulings ensure fairness in litigation by requiring transparency when surveillance is to be used against a claimant.

Using Surveillance to Challenge Credibility

Surveillance is most frequently used to challenge a claimant’s credibility.

This is especially relevant in cases involving:

• Chronic pain
• Soft tissue injuries
• Psychological injuries
• Claims of long-term disability without visible physical impairment

If a claimant testifies that they cannot perform certain activities, surveillance footage may be introduced to contradict that testimony.

However, surveillance must meet strict legal standards to be admissible.

In R. v. Creemer (1968) 1 CCC 14 (NSCA), the Nova Scotia Court of Appeal established three criteria for admissibility:

1. Accuracy
2. Fairness
3. Verification by a witness who can authenticate the footage

These principles continue to guide courts in evaluating video evidence across Canada.

Surveillance can be used to impeach testimony—but only if disclosure rules and evidentiary standards are satisfied.

Surveillance in Atlantic Canada

Surveillance has become a common litigation tool in motor vehicle accident cases across Atlantic Canada.

Although there are relatively few published New Brunswick decisions focused solely on surveillance, cases such as:

• Matthews v. McIntyre (2019 NBQB 127)
• Chiasson v. Thériault (2018 NBQB 177)

have referenced its use in assessing the credibility of claimants and the extent of injuries.

Surveillance is a powerful tool for insurance companies and defendants in personal injury cases.

Canadian Court Rulings on Admissibility

Surveillance evidence is not automatically admitted at trial. Courts weigh whether the evidence is relevant and whether its probative value outweighs potential prejudice.

For example:

• In Nemchin v. Green (2019 ONCA 634), the surveillance evidence was excluded because it was not sufficiently significant to impact the damages assessment.
• In Lis v. Lombard Insurance Co. (2006 CanLII 21595), surveillance was ruled irrelevant to the claimant’s chronic pain condition and therefore inadmissible.

Courts will exclude surveillance where:

• It lacks relevance
• It is misleading
• It is unfairly prejudicial
• Disclosure rules were not followed

What Claimants Should Know

If you are pursuing a personal injury claim in New Brunswick, Nova Scotia, or Prince Edward Island, it is important to understand:

• Surveillance is legally permitted in many cases
• Insurance companies may monitor public activities
• Footage may be used to challenge credibility
• Disclosure rules protect fairness in litigation

Working with an experienced personal injury lawyer ensures that surveillance evidence is properly scrutinized and challenged where appropriate.

Conclusion

Surveillance plays a significant role in modern personal injury litigation. While it can be a powerful tool for defendants and insurers, Canadian courts require strict compliance with disclosure and evidentiary rules.

In Atlantic Canada, surveillance must be disclosed if it is intended to be used at trial, and admissibility depends on its accuracy, fairness, and relevance.

Claimants should remain aware of the possibility of surveillance and ensure their legal team is prepared to address it effectively.

Helping Injured Clients

For over 35 years, CLG Injury Lawyers have helped thousands of injured clients. We fight for your rights to receive the maximum compensation you deserve, providing you the Peace of Mind to focus on your Road to Recovery. Our experienced personal injury lawyers offer a free, no obligation case evaluation.

For more articles and safety tips, visit our blogs page.