LAT TALES – Surveillance: To disclose or not to disclose
In Nick Vassos v. Heartland Farm Mutual Inc. [1] the LAT denied a motion brought by the applicant to exclude the following from the hearing:
- Surveillance video;
- Any report or assessor who relied on the surveillance; and
- All evidence used in relation to the surveillance.
Background
The applicant was involved in an accident on December 18, 2019 and sought accident benefits from Heartland Farm Mutual Inc. The matter proceeded to a case conference in November 2021 and a hearing was scheduled.
The respondent ordered surveillance in October 2020 and it was conducted in November 2020. On January 22, 2021, the surveillance report was sent to Dr. Talebizadeh, the respondent’s psychological examiner. On January 28, 2021, the applicant attended the psychological IE and was shown the surveillance video during the assessment. On February 4, 2021, the surveillance evidence was provided to the applicant’s counsel.
The Motion
The applicant brought a motion to exclude the surveillance video and any report or evidence arising from the surveillance (including the IE report), on the grounds that the respondent breached their duty of good faith by failing to advise and provide the applicant with the surveillance in advance of the IE.
The respondent’s position was that to exclude the surveillance video and any evidence arising from it would remove the insurer’s statutory right to insurer’s examinations.
Applicable Law
Section 15(1) of the Statutory Powers Procedure Act provides a tribunal the power to admit evidence at a hearing:
What is admissible in evidence at a hearing
15 (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
Section 15(2) of the Statutory Powers Procedure Act describes what is inadmissible as evidence at a hearing:
What is inadmissible in evidence at a hearing
(2) Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or
(b) that is inadmissible by the statute under which the proceeding arises or any other statute.
The LAT observed that there is no provision in the SABS that creates a duty to disclose the particulars for surveillance evidence to the applicant. Further, there is no section of the SABS that would prohibit the introduction of the surveillance report.
The applicant relied on the Rules of Civil Procedure which require that surveillance be disclosed prior to an examination for discovery to argue that the surveillance should have been disclosed earlier. However, this argument was rejected as it is well established at the LAT that references to the Rules of Civil Procedure are not helpful, as the processes are inherently different.
Ultimately, Vice-Chair Terry Hunter dismissed the applicant’s motion and refused to exclude the surveillance evidence and the evidence of the IE assessor who received the surveillance. The Vice-Chair noted, however, that the applicant would be able to make submissions at the hearing as to the weight that the evidence would have.
Takeaway
At the LAT, the insurer is not obligated to disclose surveillance or particulars of surveillance to the applicant before it is disclosed to insurer examination assessors.
[1] Nick Vassos v. Heartland Farm Mutual Inc., Tribunal File No. 21-001411/AABS (unreported) https://www.docdroid.net/qDlENmP/21-001411aabs-motion-order-1-pdf