Laferriere v. Wawanesa Mutual Insurance Company, 2023 ONLAT 20-010511/AABS

Full Decision

This case involves the rare intersection between injury law and video games!

In this case, the claimant hit a moose while driving on Highway 527 near the turn off to the Lac des IIes mine, outside of Thunder Bay, Ontario. The claimant was alone at the time, and lost consciousness.

The claimant’s automobile insurer, Wawanesa Mutual Insurance Company, terminated his Income Replacement Benefits, claiming that he did not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

Wawanesa hired assessors who argued that the claimant could return to gainful employment. They also hired a private investigator to record video of the claimant in public and conducted an extensive investigation of his online presence including his Facebook, YouTube, Twitch and Discord social media accounts and more than 500 videos of him playing video games that had been posted online.

Wawanesa’s key argument was that the surveillance evidence proved that the claimant was not credible. In particular, the insurance company argued that the video game surveillance showed that our client could work.

After hearing the testimony from several experts over five days, the Licence Appeal Tribunal (LAT) agreed that the claimant suffered a low back injury (i.e., disc bulge contacting nerves) and a mild traumatic brain injury that impaired his cognition.

The LAT found that the surveillance of the claimant’s video game streaming did not undermine his disability claim, stating:

  • The claimant was not visible during the video gameplay;
  • There was no evidence that he was earning income from streaming;
  • The video gameplay was not a transferable skill;
  • The video game streaming could be started or stopped at any time and could be done in a comfortable position, changing postures as needed;
  • The consequences of failure in a video game are drastically different than the consequences of failure in a work-like setting; and
  • The evidence of the claimant playing video games for hours at night demonstrated a lack of time management and focus on leisure despite it being detrimental to his well-being.

The LAT found that the claimant was entitled to Income Replacement Benefits from the date of the denial, with interest, to present and ongoing.

This decision provides clarity from the LAT on the value of surveillance evidence from streaming platforms such as Twitch or YouTube.

Written by

Jeffrey Moorley is a lawyer at White Macgillivray Lester LLP. His mission is to help people from Northern Ontario recover what is owed to them from insurance companies. His practice focuses on motor vehicle collisions, occupiers’ liability (e.g., falls), dog bites, and insurance denials (e.g., auto, accident benefits, homeowners, life, disability, accidental death).