Authors: M. Steven Rastin and Catherine Mahony

INTRODUCTION

It cannot be denied that in this increasingly technologically connected world, each of us experiences "modern day surveillance" on a daily basis. Every time we leave our homes we can be assured that our presence is being recorded on a variety of traffic cameras, cameras attached to automatic banking machines, and closed circuit television recorders located in most retail stores, office buildings and even street corners. Whenever we use a credit card or board an airplane, all kinds of digital markers indicate our presence at a particular location and, with the proliferation of cell phones, tablets, laptops and other wireless communication devices, many of which contain GPS (global positioning system) chips which can pinpoint location with frightening accuracy, it is difficult to imagine that it is possible to go through an entire day without some other, unknown entity, acquiring knowledge of our movements, our jobs, our habits, our hobbies – in other words, our very lives. As unsettling as this may be, there is a definite distinction between the knowledge that our presence is being largely passively observed in the context of the greater outside world, and the experience of being purposefully surveilled and recorded.

It has become common practice for parties to civil litigation, often in the context of personal injury claims, to engage the use of surveillance as a legal tactic aimed at routing out those who would abuse the system by claiming to suffer injury more severe than what they have, in reality, suffered. Of course, if one is able to capture a plaintiff on videotape undertaking activities s/he could not possibly accomplish if they were truly injured in accordance with his or her claims, this information would go a long way toward discrediting a plaintiff. Equally obvious is the long-held belief that one forfeits one's right to privacy when entering a public arena, which is why stores and banks and office buildings are permitted to engage in the kind of surveillance detailed above. What is less clear is the use that may be made of various social media outlets, such as Facebook™, LinkedIn™, MySpace™ and other similar internet outlets.

As the world grows smaller each day by our electronic access to one another, privacy rights – and questions of surveillance – become ever more unclear, in many cases because the legislation cannot keep up with the advancement of technology. The consequent void must then be filled by judges who are asked on a daily basis to enter these murky waters and apply legal principles to determine where the boundaries to our ever-shrinking privacy exist. This paper will aim to address these issues in order to dispel some of the mystery surrounding the use of surveillance evidence in civil litigation matters.

USING THE RULES IN DISPUTES ABOUT SURVEILLANCE

Each province addresses use of surveillance in its iteration of the Rules of Civil Procedure and something all of the Atlantic provinces have in common, is that each considers a "document" to include a film, photograph, videotape or recording of sound1 (amongst other things).

Generally speaking, each province addresses the use of surveillance in its section on discovery of documents. In New Brunswick, Rule 312 discusses the scope of documentary discovery, including the necessity of providing an affidavit of documents which discloses the existence of all documents in a given party's possession or control, including those over which privilege is claimed (such as surveillance video or surveillance reports). As is common, the claiming of privilege does not negate the need to disclose the existence of a particular document and to provide sufficient particulars to the other party that the type of document can be identified, subject to a provision in the Evidence Act3 which dictates that any investigative report prepared for the dominant purpose of litigation will automatically acquire privilege such that it is exempted from disclosure and production in civil proceedings. This, of course, is known more colloquially as "litigation privilege", and it attaches regardless of whether it has been codified into the law. There is also case law, such as Main v Goodine4 to support the notion that surveillance conducted at the behest of counsel constitutes such an investigative report for the purposes of the New Brunswick Evidence Act.

Newfoundland and Labrador has similar provisions regarding discovery and disclosure in an affidavit of documents in its Rules of the Supreme Court, 19865, while Nova Scotia addresses these issues in its Nova Scotia Civil Procedure Rules6, with Rule 16 and sections 23A – H of the Evidence Act7 specifically dedicated to electronic documents and dictating parameters around preservation, identification and deletion and destruction of such information. Prince Edward Island adopted Ontario's Rules of Civil Procedure8 in 19909, and in the Ontario legislation the discovery issues are covered by Rules 29.1 through 33, including all of the concepts outlined above (including the necessity of providing an accurate affidavit of documents).

Thus, the Atlantic provinces do not appear to differ very much in terms of the key concepts of disclosure of surveillance information. Where significant differences are apt to arise, however, is in the interpretation of the legislation, which necessitates a review of the case law. Such in depth review can be found in the sections following below.

STRATEGIES ON HOW TO MAINTAIN OR CHALLENGE PRIVILEGE

It is a fundamental tenet of Canadian law that certain documents do not have to be produced because they are subject to privilege, the most important of which (for purposes of this discussion) is litigation privilege, which attaches to any document prepared for the dominant purpose of anticipated or existing litigation. However, such privilege is not necessarily permanent as it can, it certain circumstances be waived (either inadvertently or intentionally) by the party who holds the privilege.

The need to balance privilege versus the right of the parties to full disclosure was well articulated by Justice Jenkins of the Prince Edward Island Trial Division in Breau v Naddy10, as follows:

5     Privilege and full disclosure are countervailing policies. Privilege is based in the social interest of preserving and encouraging particular relationships that exist in the community at large, the viability of which are based upon confidential communications. Normally such communications are not disclosed to anyone outside the relationship. Full disclosure promotes the administration of justice by requiring all relevant and probative evidence relating to the issues come before the court so that it can properly decide the issues on the merits. Early disclosure is designed to promote early and expeditious resolution of disputes. For the most part, our law has developed so that the administration of justice pre-empts external social values. The recognition of privilege has been limited in favour of the search for truth in the judicial process.11

And though it may seem that the two principles (privilege and full disclosure) are incompatible with one another, in practice this does not have to be the case:

25     I have chosen, with respect, not to follow cases pursuing the opposite tack. Those cases view the principles as competing, and irreconcilable, and proceed, in Ontario, to render illusory, and in New Brunswick, to confine, a common law privilege, because it appears to be a barrier to full disclosure. In my view, the principles, while apparently countervailing, are congruous. The procedural requirement is full disclosure and production, and this is subject to substantive rights of privilege.12

Maintenance of privilege for as long as possible is obviously beneficial to the party who holds the privilege. That said, if the party in possession of surveillance materials such as video tapes (or DVDs or surveillance reports etc.) discloses such information to a third party, then privilege is waived. This is important because it will often be desirable, if not necessary, for a party to at some point disclose the surveillance materials to an expert in order to garner an opinion as to the extent of a person's injuries and any limitations on capability. This is particularly so where it is not self-evident to a lay person that the individual being surveilled has done anything of particular import. For example, while it may seem rather insignificant to the average juror to observe a plaintiff grocery shopping while under surveillance, a physician observing that same surveillance may be able to ascertain that the plaintiff should not be capable of reaching such a high shelf, or bending to retrieve something from a low shelf, without great difficulty (if at all), given the claimed injuries. An expert's observations can thus be very helpful in putting the surveillance information into perspective. However, this requires breaking privilege. Once the information goes to an expert, it must also be disclosed to opposing counsel, who will then have an opportunity to prepare the client in respect of same13 (discussed in greater detail in the "Client Preparation" section, below).

Significantly, the litigation privilege is waived upon disclosure to any third party, including any co-defendant(s) in the proceedings absent common interest privilege. Thus, the benefits of making such disclosure to another party must be carefully weighed against the potential consequences, bearing in mind that the keeper of the privilege is generally well served by maintaining privilege for as long as is possible.

It is also possible that litigation privilege will be breached if the surveillance is shared with opposing counsel, in contemplation of furthering settlement discussions. Such was the case in the Nova Scotia case Green v Clarke14, where part of a surveillance video was shown to opposing counsel, purportedly as an aid to settlement negotiations. When counsel sought disclosure of not only the entirety of the video surveillance but the accompanying reports also, the court ruled in favour of disclosure, finding that the privilege had been waived:

7     On the facts, I find the dominant purpose of the surveillance reports, in the instant, is for use in litigation, and they are, therefore, privileged from production. The same, however, cannot be said for the video tapes, given that when they were partially disclosed to the plaintiff, the dominant purpose would then have been for purpose of settlement. I am satisfied the contents of the video surveillance tapes have been sufficiently divulged to the plaintiff to cause the litigation or solicitor's brief privilege to be waived. Manes and Silver, in their text .Solicitor-Client Privilege in Canadian Law consider the issue of waiver where there is disclosure of part of a privileged communication. At p. 192 they state: 
1.04     Unless the communication is severable because it deals with different subject matters, where there is a partial waiver of a privileged communication, the whole communication must be disclosed. Furthermore, a party is not entitled to disclose only those parts of a document which are to the party's advantage.
The authors, quoting from various cases, note the rationale that to allow an individual item to be plucked out of context would risk of injustice through its real weight or meaning being misunderstood (at p. 192 quoting from Nea Karteria Maritime Co. Ltd. v. Atlantic amp; Great Lakes Steamship Corp. (No. 2), [1981] Com. L.R. 138).
8     Furthermore, the defendants can no longer rely upon the impeachment of credibility aspect of Civil Procedure Rule 31.15(2) at trial with respect to these documents. By disclosing portions of the video tapes to the plaintiff prior to cross-examination, the very specific purpose of challenging the plaintiff's credibility, contemplated by the rule, through deliberately withholding the contents of the video tapes so as to surprise the plaintiff during cross-examination has been defeated and replaced by a settlement or negotiation purpose.
9     Given the waiver of privilege, full disclosure of the video tapes is now required under the rules and they are to be produced for the plaintiff's inspection.
10     The three reports prepared contemporaneously with the video tapes also form part of the documents that are to be produced by virtue of the waiver of the privilege. In H.B. Nickerson Ltd. v. Somerville Belkin Industries Ltd. (1985), (sub nom. H.B. Nickerson Ltd. v. Sommerville Belkin Industries Ltd.) 72 N.S.R. (2d) 289, 173 A.P.R. 289 (T.D.), Nathanson J. dealt with waiver of privilege with respect to one document effecting another document at p. 292:

Waiver of the privilege with respect to one document may affect the privilege covering other relevant documents. Phipson on Evidence (13th ed.), p. 306, states:

If privilege is waived for one record of a particular transaction, it is waived for all other relevant documents, whether of prior or subsequent date, until some further ground of privilege arises.
11     To the extent the contents or any portion of the contents of the three reports may raise a separate or independent basis for privilege, other than that associated with the waived privilege in respect to the video tapes, that portion need not be produced, unless this new basis for privilege has itself also been waived. In addition, to the extent the reports may contain material unrelated to the tapes and, therefore, to the privilege that was waived, they also need not be produced.15

The law settled by this case still stands today, having recently been followed by the British Columbia Supreme Court in Chong v Lee16.

This case illustrates the importance of careful consideration by counsel as to the circumstances in which the litigation privilege afforded to surveillance evidence is breached. The chances of settlement being effected before trial must be evaluated, as must the potential cost of having to disclose the surveillance evidence prior to trial, thus allowing the plaintiff time to prepare to defend against it, as opposed to being surprised by it at trial if it is brought up for purposes of impeachment.

WATCHING THE DETECTIVES: CHALLENGES RELATED TO QUALIFICATIONS, COMPLETENESS AND FAIRNESS

Watching the detective is an area of surveillance law perhaps generally overlooked. While of course considerations regarding the validity of the surveillance tapes and accounts themselves are essential, and concern regarding what the surveillance actually depicts (and how it can be overcome) is paramount, it should not be forgotten that there is still a person behind the surveillance who bears some consideration.

Once counsel becomes aware of the existence of surveillance and its intended use at trial, the credentials of the person conducting the surveillance should be sought. Further, calling the person who conducted the surveillance as a witness may be a good idea in order to ascertain exactly who they are, what their business is, what they understood the purpose of the surveillance to be and how they carried it out. Most human beings are, generally speaking, uncomfortable with the idea of their movements being surreptitiously recorded, so it is important to ascertain just how the surveillance was conducted and how intrusive it was into the life of the subject being surveilled.

It is also crucial to obtain the investigator’s notes and reports, including any information regarding whether the film was edited and how much total time was spent conducting surveillance, as opposed to how much of that time was actually filmed. A large discrepancy between time surveilled and time recorded can be critical at trial in terms of explaining a discrepancy between injuries claimed and activities undertaken while under surveillance. Another important distinction is the amount of surveillance recorded and the amount shown in trial, regardless of whether it is a jury trial or by judge alone. An excellent example of this is found in the recent New Brunswick case of Guignard v Hall17, where the judge seemed largely non-plussed by the introduction of only a sliver of overall surveillance that had been conducted and recorded:

24 The evidence discloses that a considerable amount of surveillance was conducted on the plaintiff over several years. In fact, over 93 hours of surveillance was conducted. Only a 22 minute extract of the surveillance was used at trial, namely surveillance from April 2, 2002. The video does not reveal very much other than showing the plaintiff walking down a street and back and then up a set of stairs to his apartment. Another segment of the surveillance shows the plaintiff attending the office of Dr. D. D. Smith for a medical examination in December 2010. Basically this video shows the plaintiff walking with a cane18.

The party conducting the surveillance must therefore bear in mind the potential pitfalls of boundless observation, particularly where it is largely unrecorded (presumably because the party under surveillance is not doing anything that contradicts his or her legal position), while counsel for the party being surveilled should bear in mind that there may be valid explanations that can be provided in order to minimize the impact of potentially damaging surveillance (such as simply asking the question, if only a small portion of surveillance is shown during trial – what of the rest of it? That must mean that there was nothing damaging on the rest of it, which favours the party under surveillance).

SURVEILLANCE AS EVIDENCE VS. SURVEILLANCE TO IMPEACH (THE RULE IN BROWN V DUNN)

Prior to trial there a number of ways that surveillance evidence may be used. For example, consider the scenario in New Brunswick where, under Rule 33.05, the defendant is permitted to examine the plaintiff first, which means that the plaintiff may enter into an examination unaware of the specifics as to what kind of information may be contained in surveillance videos or reports19.

Insistence upon an executed affidavit of documents is also crucial, and is provided for in the Rules of each province, so any party seeking to maintain privilege of surveillance must be careful to adhere to the applicable rules, just as any party seeking disclosure of such material must do the same.

During trial, surveillance evidence may generally only be used if its existence has been previously disclosed in an affidavit of documents (with illustrations of this principle found in the case law, including such cases as Hawboldt v Cahill20 from Nova Scotia), or the defendant has abandoned privilege (which scenarios are discussed in the Privilege section, above). If privilege has been maintained then it is possible to introduce such evidence at trial, but only if a proper foundation is followed pursuant to the rule in Browne v Dunn.

The rule in Browne v Dunn21 can be generally stated as follows: when engaging in cross-examination, counsel is not permitted to rely on evidence that is contradictory to the testimony given by the witness without first putting the evidence before the witness in order to allow him or her to know and understand the contradiction they are expected to justify. Thus, counsel may not interrogate a witness with regard to video surveillance without first allowing the opportunity to view the surveillance.

Such use of evidence is of course also known as "impeaching the witness" and admissibility of evidence for this specific purpose has been articulated as follows:

27 Although cross-examination may serve a number of objectives, one of its crucial purposes is clearly "to discredit the witness" and one of the tools for discrediting is the use of tapes and reports to contradict or impeach the witness. Prior disclosure of their existence could potentially impair the use of these tapes and reports as vehicles to discredit or impeach the witness. On the other hand, Civil Procedure Rule 20, in keeping with the spirit of disclosure mandates, under the rule, a listing of all documents. As noted earlier, the apparent contradiction between the requirement to list all relevant documents, excluding only the solicitor's brief, and the right under Civil Procedure Rule 31.15(2) to use documents not listed under Civil Procedure Rule 20 is only reconcilable by limiting the admissibility to use on cross-examination for the purpose of contracting and impeaching the witness and not as a mechanism whereby one party may introduce it as part of its evidence, albeit through a witness called by another party, without having made the required disclosure under Civil Procedure Rule 20. It will be for the trial judge to decide whether the particular report or document meets the exception of Civil Procedure Rule 31.15(2). If it does not, then under Civil Procedure Rule 31.15(1) and subject to the court's discretion recited therein, the document or report, if not listed under Civil Procedure Rule 20 would not be admitted. Failure by counsel to list the tapes and reports may, therefore, run the risk they will not be admitted in evidence during trial.22

Other considerations which arise when surveillance evidence is being proffered during trial, aside from establishing a foundation in accordance with the rule in Browne v Dunn, include whether the video provides a fair and accurate representation of the events that occurred, for which reason authentication of the tape itself and audit of the tools used to record it is important, and whether the information is itself relevant.

The test of relevance is used across the country as the ultimate factor in determining whether any piece of evidence will be admissible. The well-known test is, of course, whether the probative value of the proffered evidence can overcome its prejudicial effect. Thus, if counsel has complied with the above described obligations regarding disclosure and has made clear an intention to utilize surveillance evidence at trial, one last argument that can be made to keep it out is that it fails the relevance test. This would be particularly so where the video fails to depict the plaintiff engaging in behaviour contradictory to his or her claimed limitations.

THE IMPACT OF SOCIAL MEDIA, PUBLIC ATTITUDES AND OTHER LEGISLATION

As our use and dependence upon technology has continued to spread and permeate nearly every aspect of our daily lives, perhaps no vehicle has been more prevalent than that of "social media". Websites such as Facebook™, LinkedIn™, MySpace™, Instagram™, Pinterest™, Twitter and more have become common place online gathering mechanisms, and a tool for people to use to connect with others both near and far. Many people use social media to connect on at least a daily basis, including posting pictures of themselves engaging in various activities as a means of keeping friends and associates apprised of their daily lives. Sometimes the amount of information people are willing to provide online is quite astonishing, given the general lack of security of any online presence (consider the information released by former United States of America National Security Agency employee Edward Snowden, which demonstrated that the government was, in effect, spying on its own citizens by monitoring and storing all emails, instant messages etc. and tracking every computer user’s online movements). This makes it quite easy, in some cases, to find an astonishing amount of information about an individual online.

Sometimes known as "cyber stalking", the practice of investigating people online has arguably become quite common place. However, when observing someone's online presence for investigative purposes, the question arises as to whether the fruits of such labour are admissible as evidence for legal purposes. In addressing this question it is important to note that there are different kinds of data that may be sought – the information actually contained on a site such as Facebook™, and the "metadata", which indicates when the computer itself was used, which websites were visited and what accounts were accessed. Such was the case in the New Brunswick case Carter v Connors23, where the issue was, "whether the law of civil discovery in New Brunswick allow[s] a party to compel production of Internet and Facebook™ usage records from the service provider of a Plaintiff"24. Applying the "semblance of relevance" test which relates in assessing disclosure for purposes of discovery, the court concluded that in fact the information was liable to disclosure and ordered same, despite the fact that there were other users of the computer in question:

38 In this instance I believe that the probative value of the information requested is of such a level that its disclosure will not infringe upon a reasonable expectation of privacy. That is so because the information sought is not, at least at this stage of proceedings, information that could qualify as revealing very personal information over which most right thinking Canadians would expect a reasonable expectation of privacy. Put another way, it does not reveal: "intimate details of the lifestyle and personal choices of the individual."

39 Having said that, it appears clear that this may be only the first of more questioning by The Defendant's counsel, Mr. Morrison, of the Plaintiff with respect to her general Internet and specific Facebook™ usage at the examination for discovery. If the questioning attempts to delve deeper into the Plaintiffs lifestyle as it pertains to these subjects, relevancy and privacy, it will require a re-examination of the reasonable limits of such questioning. For example, included in that assessment will be the extent to which an individual may claim a reasonable expectation of privacy in the use of social networking site electronic data.

40 That said, it cannot be reasonably concluded that the specific information sought in this motion does not qualify as meeting a "semblance of relevance" test which is what is required at this stage for an order to issue. It does so, by possibly providing a window into what physical capacity the Plaintiff has to keyboard, access the Internet and communicate with family friends and associates on Facebook™ and thus what capacity she may have to work. In that sense: "It may lead to the discovery of admissible evidence", the threshold required for the evidence to be produced.

41 Incidentally, it must not be forgotten that this legal action was commenced by the Plaintiff and in launching it she has implicitly accepted certain intrusions into what otherwise might be private information the disclosure of which would ordinarily be left to her own personal judgment. Of course those intrusions are subject to the implied undertaking of confidentiality except with respect to the ongoing proceeding.

42 The Respondent has argued that if an order is made to disclose the information sought it will mine data, in the form of use records, of others including family members who have had access to the Plaintiff's computer while visiting her. On that issue, it is important to note that the information requested does not trench upon third party privacy rights that ought to be protected by the court in these circumstances where those individuals, because they are not a party to the proceedings, have no legal voice to be heard. At this point the only specific account and individual data request relates to the Plaintiff's use of her personal Facebook™ account. Even in those circumstances the request is directed at account use time only. Issuing the order requested will apply the common law in a way that is consistent with Charter the values on privacy.25

Much of the reasoning in this case referenced a British Columbia Court of Appeal decision, Bishop (Litigation Guardian of) v Minichiello26, where many of the same issues of privacy and disclosure were explored and the same conclusion regarding the necessity of full disclosure was reached.

The Nova Scotia Supreme Court recently referenced the Carter case in assessing whether to grant access to a plaintiff’s entire computer drive for purposes of conducting metadata analysis to determine a computer usage pattern27. The motion for production was granted, as the information sought was determined to be both relevant and probative and in light of the fact that the defendant was not seeking to read the plaintiff’s emails, private information related to his business and clients, or any solicitor-client privileged information. Rather, the court was satisfied that the defendant wanted only to establish a pattern of use of the computer through metadata analysis, which provided information directly relevant to the amount of time the plaintiff was able to spend on the computer.

It is worthy of note that the cases where this issue has arisen generally encompass a scenario where the plaintiff has claimed diminished ability to use a computer (whether for purposes of running one’s own business or participating in other employment, or even for purposes of studying, if the plaintiff is a student) such that his or her life has been negatively impacted, usually through a diminished ability to earn income. Thus, analysis of exactly how much computer usage has changed is indeed relevant to analysis and assessment of a plaintiff’s injuries.

Sometimes a request for the metadata will go hand-in-hand with a request for the content of a plaintiff’s social media sites (such as access to a person’s Facebook™ profile or LinkedIn™ account). The question of the admissibility into evidence of a plaintiff’s social media information has become an increasingly addressed ever-involving area of law. Consider the recent Nova Scotia Supreme Court decision of Conrod v Caverley28, where the injured plaintiff claimed to have suffered from pain so severe that, in addition to impeding her ability to work and compromising her ability to engage in recreational and social activities, her ability to concentrate was interfered with to such an extent that she had to limit her use of such websites as Facebook™. The defendants sought an order for production of documents including a complete, printed copy of the plaintiff’s Facebook™ profile, inclusive of those materials to which access would be restricted by the “privacy” settings a user may engage on Facebook™. The defendants also sought disclosure of a printed copy of the metadata information related to the plaintiff’s Facebook™ usage history which would track her login and logout information. While the metadata was ordered produced because it directly related to the plaintiff’s claim of interference with her ability to concentrate, the Facebook™ profile was not producible because the content failed the relevancy test. Specifically, the defendants were unable to demonstrate that there was anything on the publicly accessible portion of the Facebook™ page that was relevant to the matter at hand, which meant that the inference that the “private” portion likely would contain such relevant information, failed.

The opposite conclusion was reached in Sparks v Dubé29, a New Brunswick decision where the court went so far as to grant an ex parte hearing regarding a motion for interim preservation of property, ordering that the plaintiff download and preserve all content contained on her social media websites pending a production hearing, based on the fact that information available to the public on such site suggested a conflict with the plaintiff’s claimed injuries and limitations which were the subject of the law suit. The Court declined to make a preservation order with regard to the plaintiff’s professional website, as the same relevance could not be shown. Nevertheless, this is an extraordinary decision that required plaintiff’s counsel to contact the client and have her attend at the office without knowing why, and then to have counsel or an agent thereof supervise the plaintiff while she downloaded and printed copies of all of the court-ordered material. The decision has since been the subject of much debate that is beyond the scope of this paper30 regarding the extent of the fiduciary duty between lawyer and client and the question of whether the plaintiff’s privacy rights were violated, but suffice to say that it demonstrates the difficulty of the law keeping pace with emerging technologies.

From a different perspective, it is interesting that the enforcers of the law, the police officers, have taken to using social media as a means of routing out suspects in relation to various crimes, as illustrated by R v Chou31. In this case, footage taken during the Vancouver riots was disseminated by law enforcement officials over their Facebook™ page, with an invitation to the public to identify the individuals pictured in the various still frames taken largely from in-store video surveillance. It was through this mechanism that the identity of the accused in this case came to be known to the Police department. As noted by the court in the written sentencing ruling, the "age of social media" has effectively eliminated any anonymity the average person could ever hope to enjoy:

28 Turning to the first perspective, participation in the riot, the video images entered into evidence show how law and order was rendered ineffective by the actions of the mob, of which Mr. Chou was a member. The mob mentality is incendiary and destroys the fabric of civil society. It undermines the rule of law, and gives licence to those who seek to perpetrate chaos and mayhem. When group unrest devolves to lawlessness, those who choose to stay in their midst are not innocent bystanders — their presence gives tacit or overt encouragement to others to join the fray. The group as a whole offers the shield of perceived anonymity to those individuals who, bolstered by adrenaline or a false sense of bravado, feel free to commit acts of lawlessness for thrill seeking and personal gain. As has become evident, it is a fleeting anonymity in the age of social media.

This case is included to highlight how pervasive both social media and surveillance have become, such that it is nearly impossible to truly feel and maintain a sense of privacy.

Although an extensive investigation into the influence of the Personal Information Protection and Electronic Documents Act32 ("PIPEDA") on matters of surveillance is beyond the scope of this paper, the case of Ferenczy v MCI Medical Clinics33 provides an excellent analysis of its applicability. Ferenczy was a medical malpractice claim where in the course of trial defence counsel sought to introduce surveillance tape during cross-examination of the plaintiff. The plaintiff objected on grounds that the surveillance had been conducted (and the consequent tape recorded) in contravention of PIPEDA. The application to exclude the videotape was dismissed, with the court’s very thoughtful analysis on the applicability of PIPEDA excerpted below:

15 At the outset I wish to point out that the Act does not contain a provision which prohibits the admissibility into evidence of personal information collected or recorded in contravention of the Act. Rather the Act provides that an individual or the Privacy Commissioner may bring a complaint which results in an investigation and report under the Act. Thereafter, certain steps described in the legislation may be taken in the Federal Court. Consequently, if the collection of surveillance evidence in this case is said to be a violation of the Act a complaint may be filed pursuant to the Act to commence that process. However, that has no direct impact on the issue of the admissibility of evidence in this trial.

16 The evidence at issue here is relevant, in my view, and the probative value of the evidence exceeds its prejudicial effect. By prejudicial effect I mean the danger that the evidence will be misused. As stated, I have concluded that a proper limiting instruction is adequate in this case to ensure that the evidence is used for the limited purpose for which I propose to admit it.

17 This is not a case involving state action and consequently no consideration arises as to the applicability of the Charter of Rights or the exclusion of evidence pursuant to the provisions of the Charter.


22 Broadly speaking the Act regulates the collection, use and distribution of personal information collected in the course of commercial activity. "Personal information" is a defined term under s. 2 of the Act. So is a "record", which is defined to include a videotape. Personal information is defined very broadly. There is no doubt that a videotape of the complainant is properly characterized as a record of personal information under these definitions.

23 Part I of the Act deals with Protection of Personal Information in the Private sector. By section 4 of the Act Part I applies to "every organization in respect of personal information that; (a) the organization collects, uses or discloses in the course of commercial activities." Organization is broadly defined under s. 2 to include an association as well as a person.

24 Commercial activity is also broadly defined under s. 2 of the Act as follows:
"Commercial Activity" means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.
25 The plaintiff submits that the private investigator (an organization) retained by the CMPA (an organization) was collecting and making a record (videotape) of the plaintiff's personal information (images) during the course of commercial activity (while being paid), and that as the plaintiff did not consent to the collection and release of the information, the investigator and the CMPA are in contravention of the Act.


27 The legislation in question is complex and so broadly worded that a reasonable argument could be made to extend its reach so far as to transform both civil and criminal litigation into something very different than it is today. The arguments advanced on behalf of the plaintiff here prove that point. On the basis of the plaintiff's argument, Dr. Weinstein might be permitted to take his own video camera and record surveillance evidence in his own defence, but a licenced private investigator could not do so on his behalf if he was being paid to do so.


31 Closely related to this reasoning is my further conclusion, that in the circumstances here, (where the recording was in a public place), the plaintiff has given implied consent to the defendant to collect, record and use her personal information insofar as it is related to defending himself against her lawsuit. A plaintiff must know that by commencing action against a defendant, rights and obligations will be accorded to the parties to both prosecute and defend. The complainant has effectively, by commencing this action and through her pleadings, put the degree of injury to her hand and its effect on her life into issue. One who takes such a step surely cannot be heard to say that they do not consent to the gathering of information as to the nature and extent of their injury or the veracity of their claim by the person they have chosen to sue. Consent is not a defined term under the Act, and there is no indication in the Act that consent cannot be implied.


33 It seems to me that the application of these provisions is self-evident. In respect of s. 7(1)(b) I see no reason to conclude that the law of Canada or of a Province does not include the common law, including the law of tort. Surely the surveillance conducted here is "related to investigating" the claim made by the plaintiff against the defendant. No doubt disclosure of the investigators surveillance efforts or the seeking of consent from the plaintiff would "compromise the availability or the accuracy of the information". Once the collection of the information has been found to fall within s. 7(1)(b), then pursuant to s. 7(2)(d) it can be used. Surely, s. 7(3)(c) and (i) are broad enough to cover the disclosure of the information in accordance with the rules of court and at a trial.34

This case illuminates several key concepts, including that PIPEDA does not have any direct impact on the admissibility of evidence in a civil matter and that, where a recording was made in a public setting, the plaintiff is perceived as having “given implied consent to collect, record and use [his or] her personal information insofar as it is related to defending himself against her lawsuit”. Thus, a person who puts the effect an injury has had on his or her life into question has, in effect, forfeited the right to privacy and instead can expect to be surveilled and will not be permitted to deny consent to information gathering related to the nature and extent of his or her injury, nor the veracity of his or her claim. Significantly, this ruling also states that the word “consent” is not defined under PIPEDA and, “there is no indication in the Act that consent cannot be implied”.

Thus, the impact of PIPEDA on surveillance appears to be minimal, if not non-existent. And, as people continue to engage more and more on social media websites, their internet presence becomes increasingly a part of their actual persona such that, so long as relevance can be demonstrated and the probative value outweighs the prejudicial effect, social media evidence is likely to be permitted to be introduced into evidence at civil trials. Of course, this generally applies only where the publicly visible portions of a person’s online presence can demonstrate the sufficient relevance to the matter at hand. This means that, as users become more tech savvy and more rulings in favour of admissibility are issued, plaintiffs are likely to manage their online presence more carefully, so that the evidence will be more difficult to locate than what could potentially be revealed by conducting a simple “Google™” search.

THE CRITICAL IMPORTANCE OF CLIENT PREPARATION

Given the stakes in disability and personal injury cases, it is fair to conclude that surveillance will be a regular tool employed by defendants seeking to limit or eliminate exaggerated or fraudulent damages claims. While warnings that fraud in the system is endemic may be somewhat overstated, only the most naïve would argue that all claims brought before the Courts are valid. In such an environment, one can expect the use of surveillance to be as persuasive as the use of the expert.

Preparing the client to deal with surveillance should, therefore, begin at the initial intake interview. In our experience, most individuals are at least mildly offended to learn that the Canadian judicial system will permit strangers to follow them around and photograph or videotape their personal lives. However, this concern seems more muted in recent years as Canadians come to terms with the reality that real privacy in the post-Snowden world is largely a myth. Of note, in our experience there is value to close observation of how a potential client reacts to learning that her actions are liable to be recorded. Outrage is understandable; however, most individuals who believe in their case generally (in our experience) take the position that nothing any investigator will tape will hurt their case. If a potential client expresses any real concern that surveillance will impact the case, it might be prudent to take a closer look at whether counsel should accept the retainer.

A key step of initial preparation should be a detailed discussion about social media. In Ontario, the trend seems to be toward Court Orders for the preservation and production of social media such as Facebook and Twitter accounts. At a minimum, clients should be warned that nothing they post on-line is truly private – even profiles protected by the highest privacy settings. Given the adversarial nature of the litigation process, it is a valid to ask whether the benefits of social media participation are outweighed by the potential risks. Prudent counsel will begin this conversation with the client early and in writing.

If surveillance does surface, a copy of the complete surveillance should be provided to the client. It is imperative that the client review and comment on the complete surveillance. Our office has come come across numerous examples where the person surveilled was not, in fact, the Plaintiff. Further the Plaintiff is in the best position to offer meaningful analysis of the video evidence. Perhaps the bags she carried coming out of the grocery store were filled with canned goods, but perhaps they were filled with bread and chips. Perhaps the client pushed himself too hard on the date in question and ended up in the Emergency Room or his doctor’s office following the day on which he was observed? There are usually nuances to any surveillance. Further, having the client review the surveillance will better prepare him for cross-examination. In a worst case scenario, it will reveal that the case is not as strong as the plaintiff had anticipated which might prompt renewed settlement negotiations.

Finally, ideally the client should review the key portions of surveillance with her treating medical professionals. There is merit in establishing whether the doctors and therapists are prepared to concede that there is anything inconsistent arising from the “smoking gun” evidence. Regardless of whether counsel elects to raise the surveillance on chief or allow it to come in on cross-examination (generally as a means of impeachment, as discussed above in the section on the rule in Browne v Dunn), client preparation is essential. Counsel should review any videotape with the client, paying special attention to the dates, times and occasions of surveillance. The client should be asked to recall what other events may coincide with those recorded on the tape, such as therapy or other medical appointments which could account for feeling well enough in the ensuing hours or days to undertake activities the plaintiff would not generally be capable of, given the injuries suffered.

A BRIEF DISCUSSION OF COMPARISON OF THE ONTARIO EXPERIENCE

While Ontario and the Atlantic Provinces obviously share an English Common Law foundation, there are some interesting procedural differences that likely have an impact on how counsel use and respond to surveillance evidence.

Perhaps the most important difference is that disability and personal injury trials in Ontario are dominated by the jury system. Most plaintiffs’ counsel and all defence counsel file jury notices in almost every case.35 There is a general perception that juries find the concept of someone hiding in the bushes videotaping people at least somewhat offensive. Further, in Ontario at least some of the investigators used have not presented overly well before juries.

As a procedural matter, it is very rare for surveillance to be used purely for impeachment purposes. One would think this is partially due to the inherent challenges involved in instructing a jury to use videotape evidence to impeach but not to consider as substantive evidence. Even if privilege is asserted, defence counsel will generally disclose the existence of surveillance in an Affidavit of Documents – or they will at least admit to it when asked directly. The Ontario Rules of Civil Procedure require that they disclose the substance of the surveillance including a) who was used to obtain it, b) the dates and times, c) how long it is, d) what was observed and anything else relevant. Prudent plaintiffs’ counsel should review the request for surveillance regularly after examinations for discovery, most especially in the time leading up to trial.

At some point, in Ontario, defence counsel will almost certainly send video tape evidence to their medical-legal doctors for review. The doctors will routinely use the surveillance to modify or substantiate their initial opinion. They will generally issue a new report or an addendum to their original report. Plaintiff’s counsel should immediately seek production of the surveillance when you find out that the surveillance has been shared with a third party.36 It is crucial that you obtain production of the entire surveillance file; that is, all written report and the entire photograph and videotape record. Again, prudent counsel will share the surveillance with her client. Our practice is also to share the surveillance with the treating and expert medical witnesses. Failure to do so renders them susceptible to having their opinions undermined during cross-examination.

When the case comes to trial, leading plaintiffs’ counsel are increasingly introducing the ENTIRE surveillance into evidence during the in-chief testimony of the plaintiff. Such evidence is often tedious.37 That is actually the point. Rather than allowing defence counsel to highlight the 22 minutes of interesting video, the plaintiff side will show the jury that this is a part of the 5 hours of video evidence taken from 30 hours of surveillance. This tactic also permits the plaintiff to provide his own narrative and often tends to blunt the impact of the surveillance.

Depending on the case, counsel may want to consider calling the investigators who conducted the surveillance. In our experience, juries will react negatively if they perceive something unseemly about the process.38 The investigators should not be permitted to provide opinion evidence including their assessment of whether a person moved “fluidly” or “without apparent discomfort.” Given the fact that the video evidence is before the Court, it is the task of the judge and jury to make such determinations.

Counsel for both sides will often show parts of the surveillance to the experts and ask them to opine as to the relevance and importance of the video evidence. Effective counsel will use make aggressive use of lay witnesses to deal with any arguably misleading perceptions that might arise from surveillance.

CONCLUSIONS

Given the amounts in dispute in disability and personal injury actions, it is hardly surprising that surveillance is a common defence tool used to test the validity of claims. Covert video surveillance has become commonplace. Electronic “creeping” in the form of google searches and social media surveillance is equally pervasive. For all its use, however, in most cases surveillance will generally not be a determinative factor. In those clear cases where surveillance will defeat the plaintiff’s claim, the case should settle. Surveillance is important, but in anything less than the clearest cases, it will not, by itself, win the day.

In our increasingly transparent post-Snowden world, however, plaintiffs need to come to terms with the fact that privacy is an illusory concept. In the current litigation environment, plaintiffs should enter the process assuming that their adversaries and their judges will have access to everything about them – whether considered private or not. If you are not prepared to allow your judge to know “every breath you take,” you should be prepared to reconsider whether you are willing begin the dispute.

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1New Brunswick Rules of Court, NB Reg 82-73, Rule 31.01; Newfoundland and Labrador Rules of the Supreme Court, 1986, SNL 1986, c 42, Sch D, Rule 1.03 (f); Nova Scotia Nova Scotia Civil Procedure Rules, Royal Gaz Nov 19, 2008, Rule 14.02(1); Prince Edward Island Rules of Civil Procedure, Rules 1.03(m.1) and (m.2).

2 Rules of Court, NB Reg 82-73, Rules 31.01 – 31.09.

3 Evidence Act, RSNB 1973, c E-11, s. 43.1.

4 Main v Goodine (1997), 192 NBR (2d) 230 (NBCA).

5 Rules of the Supreme Court, 1986, SNL 1986, c 42, Sch D, Rules 32.01-32.11.

6 Nova Scotia Civil Procedure Rules, Royal Gaz Nov 19, 2008, Rules 14 – 19.

7 Evidence Act, RSNS 1989, c 154, ss. 23A – 23H.

8 Rules of Civil Procedure, RRO 1990, Reg 194, Rules 29.1 – 33.

9 See the “Courts of Prince Edward Island”, online: http://www.courts.pe.ca/supreme/index.php?number=1003816

10 Breau v Naddy (1995), 133 Nfld. & PEIR 196 (PEI TD). Note that this case includes an excellent overview of the law of privilege and how and why it applies to surveillance materials. The conclusion in this case was that the surveillance materials did, in fact, attract litigation privilege such that same need not be disclosed, except on the affidavit of documents.

11 Ibid. At para 5.

12 Ibid. At para 25.

13 See for example the Ontario case of Aherne v Chang, 2011 ONSC 2067.

14 Green v Clarke (1995), 143 NSR (2d) 74 (NS SC).

15 Ibid. At paras 7 – 11.

16 Chong v Lee, 2014 BCSC 734.

17 Guignard v Hall, 2013 NBQB 7.

18 Ibid. At para 24.

19 The existence of the surveillance should be disclosed in the Affidavit of Documents. However, there remains the risk that if the Affidavit has not been updated, the plaintiff may find herself caught by surprise.

20 Hawboldt v Cahill (1995), 142 NSR (2d) 120 (NSSC (TD)). See in particular paragraphs 5, 6, 25 and 26.

21 Browne v Dunn, (1893) 6 R. 67 (HL).

22Hawboldt v Cahill, supra, at para 27.

23 Carter v Connors, 2009 NBQB 317.

24 Ibid. At para 10.

25 Ibid. At paras 38 – 42.

26 Bishop (Litigation Guardian of) v Minichiello, 2009 BCCA 555.

27 See Laushway v Messervey, 2013 NSSC 47.

28 Conrod v Caverley, 2014 NSSC 35.

29 Sparks v Dubé, 2011 NBQB 40.

30 See for example David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (December, 2013) 11 Can. J. L. & Tech. 181.

31 R v Chou, 2013 BCPC 13.

32 Personal Information Protection and Electronic Documents Act, SC 2000, c 5.

33 Ferenczy v MCI Medical Clinics (2004), 70 OR (3d) 277 (OSCJ).

34 Ibid. At paras 15 – 17, 22 – 25, 27, 31, 33.

35 A notable exception is in cases where a municipality is a defendant as such cases are exempted by juries by s.11 of the Municipal Act.

36 See discussion above.

37 During one trial, the judge interrupted to complain the video evidence was “like watching paint dry.”

38 For instance, an older gentlemen covertly obtaining video evidence of a young woman in a gym.