The challenge with the impact of surveillance evidence is that it typically is one-sided. While it may often show the plaintiff in a compromising circumstance, it will usually fail to demonstrate the toll that physical exertion, for example, may have later had upon the plaintiff. It also may often show a modest number of a biased selection of days over an extended time period.

This commentary was offered by one trial judge, noting that the surveillance evidence failed to offer a complete perspective of the evidence. ¹

This case was cited, seemingly with approval, by Mr. Justice Hambly. ²

A similar cautionary note as the unqualified acceptance of video surveillance was noted and overcome by the British Columbia Supreme Court: ³

The defendant commissioned some random video surveillance of the plaintiff, which included a shopping trip and a visit by the plaintiff, her four-year-old daughter, and an adult babysitter, to a game farm on the outskirts of Vancouver. I appreciate the nature of this type of evidence does not take into account the aftermath of pain and discomfort an activity may cause. I appreciate it also is but a snippet in time, and one must guard against unfair editing.

Justice Hambly ⁴ repeated the view that video surveillance evidence may be unreliable as it does not show the time and effort taken by the plaintiff to recuperate from the activity shown on the video and further that it shows selected dates in the course of a broad perspective of time. ⁵

In reviewing prior cases in which the trial judges relied on video surveillance, Justice Cavarzan ⁶found that in each instance the court relied upon additional evidence unrelated to the surveillance to cast doubt upon the plaintiff’s credibility.

The cases ⁷ cited by Carvarzan J. were seen as requiring additional evidence to support the conclusion of surveillance evidence.

Referenced to the same effect was the decision of the British Columbia Supreme Court. ⁸Holmes J. in this case, however, used the video evidence to find the plaintiff’s testimony unreliable as opposed to the suggested need for a credibility finding to come from a second independent source.

The last case referenced by Carvarzan J.⁹ showed other credibility failings apparent in the plaintiff’s evidence.

It is indeed true that in each of the four cases referenced that the plaintiff’s credibility was questioned in respect of other evidence, but, nonetheless, it would be unfair to see the impact of surveillance evidence as demanding other independent credibility failings to be proven to undermine the plaintiff’s assertions.

The Supreme Court of British Columbia ¹⁰ considered the manner of the surveillance conducted by the insurer and whether this conduct was a breach of the Privacy Act ¹¹ which created a tort for breach of its provisions.

On the facts of this case, the insurer retained four different private investigators who made direct observations and also took surveillance video of the plaintiff. The plaintiff did not take issue with surveillance conducted in a public place, but did object to photographs of her in her home and members of her family, independently of her.

The court noted that the most contentious video was that taken of her in her home, from across the street in a parked van, with a zoom lens. The home was well lit and it was a dark at the time, allowing any passerby and the investigator to see through the window.

A second surveillance was conducted of the plaintiff’s two children playing soccer outside their home.

It was accepted by the judge that the location of the surveillance was the key to determining whether the person’s expectation to privacy is reasonable. However, the court continued that even if actions occur on private property, the context may suggest that there is not a reasonable expectation of privacy. The example was given of a case in which the event took place on the private parking lot of the plaintiff, which was determined to be “in full view of any passersby and therefore there was no reasonable expectation of privacy”.

The statute in section 1(1) required that the breach must be done willfully and without claim of right. The statute, itself, notes that surveillance may be actionable without a trespass.

The trial judge concluded that on the evening in question, as the blinds were open and the lights on, “her entitlement to privacy on the evening in question was low”. Considering that Manulife had a lawful interest in conducting the surveillance, he concluded that there was no expectation of privacy in this context.

As the plaintiff’s daughter was also videotaped that evening while partially undressing, the court found that her privacy rights were violated. However, as she was not a party to the action, no damages were awarded, although they were set notionally at $500.

The decision of Mason J., ¹² a case decided well before Fidler v Sun Life Assurance, imposed a punitive damage award of $7,500 against an insurer due to its decision to conduct a surveillance when there was no apparent need to do so. ¹³

The adjudicative decision of Ian Mackenzie considered surveillance evidence which the employer had commissioned. ¹⁴ The issue arose in hearing to determine whether there was cause for termination of the grievor due to alleged misrepresentation of his medical condition to allow a claim for injury- on-duty benefits. ¹⁵

The adjudicator noted that in the public sector, the Charter of Rights and Freedoms is a source of privacy rights, and particularly the citation that “everyone has the right to be secure against unreasonable search and seizure”.

The case antedated the Court of Appeal decision in Jones v Tsige,  ¹⁶ but nonetheless the decision noted that the common law had then begun to recognize privacy rights.

In addition, arbitral decisions had expressed the view that employees “also have an expectation of privacy that arises from the arbitral jurisprudence on the limitations to management rights”.

The test to be applied to determine the reasonableness of video surveillance was expressed as follows:

I believe that the appropriate balancing of the employer’s interest in combating abuse of benefits and the employees’ privacy interest results in the “reasonableness” test being the most appropriate test for admissibility of videotape evidence. This is because video surveillance is an extremely invasive investigation technique and requires, in advance, reasonable and probable cause to justify conducting it. This is the same requirement for physical searches of an employee’s private sphere, such as a locker, a purse or a personal vehicle. Of course, whether there is reasonable and probable cause to justify video surveillance will depend on the facts in each case.

The reasonableness test developed in the jurisprudence sets out two requirements that the employer must meet before the evidence is considered admissible:

1. Was it reasonable, in all of the circumstances, to undertake surveillance of the employee’s off-duty activity?
2. Was the surveillance conducted in a reasonable manner, not unduly intrusive and proportionately?

The test for reasonableness is not a subjective test. The test is what, objectively speaking, was in the mind of the employer or what should reasonably have been in the employer’s mind.

The conduct in conducting the surveillance in the context of this case was considered unreasonable:

The employer is not required to establish that it exhausted all of the alternative means of confirming its suspicions about the employee. However, as one factor in assessing reasonableness the employer has to explain why some readily available and less intrusive methods could not have accomplished the same goal. Each option must be examined to determine if, in the circumstances, it would have been appropriate to consider the option prior to resorting to video surveillance (see Re Prestressed Systems Inc. (supra)).

Because the employer had other reasonable means at its disposal, the evidence was determined to be inadmissible.

The Supreme Court of British Columbia ¹⁷ considered the issue of surveillance evidence and its admissibility at trial. The videotaped evidence consisted of some five hours of surveillance showing the plaintiff playing volleyball.

Given the above case involving the British Columbia Privacy Act, it would be doubtful that such evidence ran afoul of the statute. The court, however, noted, that the Privacy Act did not state that where the surveillance evidence was in violation of the statute that it would therefore be inadmissible.

The court also spoke with approval of the decision of Madam Justice Kirkpatrick to the same effect.¹⁸ The evidence was admitted.