Surveillance is one of the main tools ICBC uses to investigate ICBC injury claims. While some level of investigation is important to verify ICBC injury claims, in reality ICBC often uses surveillance to uncover evidence to discredit injured claimants and attack their claims. To this end, ICBC routinely hires private investigators to follow and videotape injured claimants in addition to questioning their co-workers, friends and family.

ICBC Is Watching you?

There are different kinds of surveillance undertaken by ICBC: open source investigation which involves searching the public internet and social media sites; actual surveillance of the injured claimant to determine whether the injured claimant’s actual or observed function is consistent with what he/she says she is capable of doing; and witness interviews of friends, family and co-workers.

ICBC surveillance is allowed as long as it does not unreasonably invade an injured claimant’s privacy. ICBC publishes a set of performance standards for ICBC private investigators.

These performance standards are used as a guide. They require that the degree of investigation undertaken by ICBC on an injury claim be proportionate to the complexity and risk associated with the injury claim. Therefore, the more significant your injuries and losses (such as your income loss claim), the more significant the private investigation.

Importantly, these performance standards also require that the investigation be carried out in the least obtrusive way possible. If not undertaken properly, ICBC’s surveillance has the potential to be intrusive, upsetting and intimidating on an injured claimant. So what happens when ICBC’s surveillance is unreasonable? When is the ICBC surveillance considered too invasive on an injured claimant’s privacy?

When has ICBC crossed the line?

ICBC surveillance tactics and the harm this inflicted on the injured claimant were examined in a recent personal injury case (Williams v. Sekhon 2019 BCSC 1511). In this case, ICBC hired 4 different private investigation firms and it has 17 different private investigators involved. Surveillance was conducted over months spanning over a 2 year period. The claimant was however unsuccessful in obtaining special costs from ICBC for their behaviour.

Some of the more troubling ICBC investigation tactics included:

• investigating every member of the injured claimant’s hockey team
• attending the home of one of the injured claimant’s hockey team
• attending the injured claimant’s hockey beer league games and filming him from the stands

• following the injured claimant’s girlfriend to her workplace and filming outside of her workplace
• sitting outside the injured claimant’s home and following him around

In addition, there was also indication that ICBC instructed the private investigator to “contact everyone” seen in photographs of the injured claimant at weddings posted on social media.

The trial judge provided the following comments regarding what is considered reasonable and unreasonable surveillance:

[189] The fact that the Insurance Corporation has “Performance Standards” for its investigators is appropriate. It recognizes that an investigation into the activities of a plaintiff, if not undertaken properly, has the potential to be intrusive, upsetting, and intimidating.

[192] … there are limits with respect to (i) the object or purpose of an investigation, (ii) the degree of investigation that is appropriate, and (iii) the manner in which that investigation is conducted.

[193] The object of an investigation should be limited to ascertaining whether the plaintiff’s claim is forthright and reasonable. Its purpose must be fact-finding in nature. Its purpose cannot be to intimidate or embarrass a plaintiff.

[194] These purposes, in turn, then define the scope of what investigation is appropriate. The investigation should be proportionate to the magnitude and nature of the claim being advanced…

In this case none of the ICBC investigation was undertaken with the object of causing the claimant any upset or distress. The application for special costs was therefore dismissed.

While the court did not award special costs against ICBC for their surveillance tactics, the trial judge did provide comments regarding what is considered reasonable and unreasonable surveillance.

Written by Ms. Jacqueline A. Small, B.A. LL.B.

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