Assessing Credibility in a World of Surveillance

In the course of an auto claim, claimants will often be required to visit a host of treating doctors and assessors over different points in time. Often times, these doctors and assessors will generate notes, records or reports that may be used as evidence later in the case.

While it may not seem crucial at the time, what is or isn’t reported to a doctor or assessor can become very important later on.

For example, the failure to report problems to an area that was allegedly injured in an accident, or the reporting of one’s present ability to engage in certain activities (such as housekeeping, employment and social/recreational activities) may pose challenges later on should inconsistences arise.

Insurers will often resort to surveillance to expose inconsistencies, which can be very damaging to a claimant’s credibility.

Given the numerous Section 44 assessments that claimants may have with their own insurance companies to determine entitlement to benefits, it is not uncommon to find situations where what a claimant reports and what is actually captured through surveillance may not match.

While surveillance footage does not capture the actual pain in a claimant’s body, which cannot be visibly expressed, it can still be critical to assessing credibility of the claimant, particularly when taking into account the limitations reported to assessors by the claimant.

Furthermore, the License Appeal Tribunal tends to take a very liberal approach when dealing with the introduction of surveillance evidence, even when the insurer doesn’t comply with the Licence Appeal Tribunal Rules of Practice and Procedure.

For example, in 16-000342 v Aviva Insurance Company of Canada, the Applicant objected to the late introduction of surveillance evidence. Despite this, the Adjudicator allowed the evidence to be admitted. At paragraphs 17 and 18, the Tribunal held:

I find that the respondent did not follow the Tribunal’s Rules when disclosing the surveillance evidence. It did not disclose information about its surveillance expert as required by Rule 10. Nor did it disclose at the Case Conference its intent to rely on the surveillance, as required by Rule 20.

Although I find that the respondent did not comply with the Rules, its breach is not so serious as to warrant excluding relevant evidence. The surveillance evidence purports to show the applicant working and directly addresses the applicant’s credibility on a material matter in this case. I find that the value of the evidence outweighs any prejudice the applicant suffered as a result of the respondent’s breach.

It would seem that in light of the liberal interpretation of the Licence Appeal Tribunal Rules of Practice and Procedure, as prescribed by Rule 3.1, the insurer can potentially introduce surveillance evidence, even in the face of procedural failures, particularly if the surveillance touches on a material matter in dispute that would outweigh any prejudice to the claimant/applicant.

To ensure credibility is maintained, it is important for claimants to be consistent in their reporting to assessors and doctors. It is also important that they do not exaggerate their symptoms or limitations and always answer truthfully.

It may also be a good idea for claimants to take notes about what discussions or conversations were had with different doctors or assessors so that they can be recalled with greater ease months or years later.

Lawson Hennick
Written by

Lawson is the creator of LawBubble.com, an online blog exploring legal issues, trends, and developments.

He received his Bachelor of Science degree in Biology from York University, and then attended University of Ottawa’s Faculty of Law graduating with a Bachelor of Laws degree in 2009 before being called to the Ontario Bar in 2010.

Lawson articled with a boutique litigation firm where he gained experience in a variety of practice areas including representing Indian Residential School survivors to obtain compensation through the Independent Assessment Process for sexual and physical harms suffered.

Since his call to the bar, Lawson has devoted his legal practice exclusively to the area of personal injury law before joining Jewel Radimisis Jorge LLP where he regularly acts for clients on injury claims including motor vehicle accidents, slip and falls, product liability and dog bite cases. He regularly appears before the Superior Court of Justice and has also appeared before the Financial Services Commission of Ontario (FSCO).

You can reach Lawson by email at lhennick@jrjlaw.com .