28 Feb 2023

Surveillance – Should I be Worried?

In my almost 20 years of disability law practice I have received many panicked calls from clients about surveillance. They might notice a strange vehicle parked outside their home or following them when they leave their house. Some clients have been afraid to leave their home because they are worried a private investigator will be watching their every move.

I have also had disability insurance companies try and use surveillance to justify denying a disability claim or during the course of a lawsuit to “prove” that my client is not truly disabled.

Surveillance is a serious invasion of your privacy. A private investigator is hired to secretly videotape you as you exit your home. They will start recording if they see you sitting on your porch, taking the garbage to the curb, chatting with a neighbour or walking the dog. If you drive to a store to go shopping or drive to a medical appointment they will follow you and make detailed notes of everything they observe including how you carry a purse, how you get into and out of your car, how many shopping bags you are holding and how long you stopped for a coffee at Tim Hortons. Surveillance can also consist of conducting online spying on your social media accounts or searching public records databases.

You may be wondering – is this legal? Unfortunately, the answer is yes – LTD insurance companies are permitted to hire investigators to observe you outside your home. In fact, one court even ruled that a private investigator hired by Manulife had not breached a woman’s privacy when he photographed her while she was inside her home but standing by the window with the blinds drawn and light on.

Should you be worried? Fortunately, most times the answer is no.

Firstly, surveillance is very expensive. Just three days of surveillance can cost and insurance company thousands of dollars and thus it doesn’t make economic sense to park a private investigator outside your home for weeks or months. Usually they will be strategic and try surveillance during periods of good weather and on the weekend.

Most importantly, the vast majority of surveillance reports I have seen throughout my career have had little to no impact on the strength of my client’s case. There is no requirement that you must be shut in your home and unable to leave in order to satisfy the definition of disability under the LTD policy. Taking your children to soccer practice, going for a short walk, running some errands at the store or stopping for a coffee does not mean you are capable of reliably and consistently working in your job on a full-time basis.

Also, given that the surveillance is usually conducted for a limited time, it is not representative of what a disabled person’s regular activity level is like. Most individuals suffering from conditions such as chronic pain, fibromyalgia, and chronic fatigue syndrome will have good days and bad days. If the surveillance catches them on a good day where they have more energy to be active, it does not mean they are consistently that active all the time.

Surveillance can be detrimental to a disabled person’s legal case if the footage contradicts what the person has said they are capable of. For example, if you tell your case manager that you cannot drive and the surveillance shows otherwise, then your credibility may be called into question. If your case goes to trial the insurance company will try and convince the court that your evidence about your pain, fatigue and depression should not be accepted because you are not a credible person. Credibility is a critical factor in disability cases and that is why I always recommend that my clients not speak in absolutes (such as “I never drive” or “I always walk with a cane”) unless it is absolutely true. Likewise exaggerating the extent of your limitations may reflect poorly on you if contradicted by video footage.

If your disability claim has been denied or your benefits terminated because of surveillance, call me for a free confidential consultation about your case.

Mark Yazdani
Disability Lawyer