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“Troublesome” ICBC Surveillance Practices Come Under the Judicial Microscope

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.

In the recent case (Williams v. Sekhon) the Plaintiff sustained serious and disabling injuries in a 2013 collision that the Defendant accepted fault for.  In the defence of the claim the Defendants insurer, ICBC, conducted a ‘troublesome‘ amount of surveillance into the Plaintiff’s life.  The Plaintiff requested that special costs be awarded for this.  While the court did not go so far as to award special costs Mr. Justice Voith provided the following lengthy comments setting parameters into what is and is not reasonable surveillance:

[185]     The Defendant called several witnesses, who were representatives of the various investigation firms that were retained by the Insurance Corporation, who were then cross-examined.

[186]     The documentary and viva voce evidence that relates to this issue is extremely detailed.  It reflects, with precision, exactly what work, over what time, was done by which individuals, who were employed by each of the four investigation firms that were retained by the Insurance Corporation, from 2015 to 2019, to look into Mr. Williams and the claim he advanced.  Seventeen different investigators from these four firms were used.  The documentation from two of these firms, in the form of records and reports, yielded nearly 200 pages.  The written submissions of counsel for the Plaintiff described more than a dozen discrete concerns with what they said occurred.  Each party in their respective submissions used unnecessary hyperbole to advance its position.

[187]     On account of the conclusions I have arrived at, I do not consider it necessary to address the issues that have been raised in such a detailed manner.  Because the issue of what constitutes a proper or, alternatively, an unreasonable and intrusive level of investigation appears to be one of first instance and because this does raise an important issue, I have endeavoured to address the matter as one of principle.  I have done so in order to provide the Insurance Corporation and other litigants with some guidance.

[188]     It is relevant that the Insurance Corporation has formal “Performance Standards for Private Investigators”.  Those written standards include, inter alia, the following instructions:

a.               Pg. 4: ICBC requires that the degree of investigation undertaken on a claim file be proportionate to the complexity and risk associated with the claim. PIs must use discretion and common sense regarding the amount of information gathered in preparation of all reports.

b.               Pg. 5: 2. Reports must not contain the PI’s opinion or unsubstantiated and gratuitous comments.

c.                Pg. 5: If asked for identification, the PI must provide his/her name and state that he/she is an owner, partner or employee (whichever is the case) of a provincially licenced private investigation firm that has been retained by ICBC. Identify the PI firm, but do not claim to be or give the impression of being an employee of ICBC.

d.               Pg. 6: PIs conducting investigations on behalf of ICBC must do so in a manner that will not alarm claimants or anyone else, nor give anyone reasonable cause for apprehension for public safety and security. All investigations must be carried out in the least obtrusive way possible while complying with the following requirements: (a) Do not:

·        enter on the private property of the person being investigated, except where the property is used by that person/for commercial purposes, and the investigation relates to that commercial purpose;

·        use a pretext or misrepresentation to gain access to any premises.

e.               Pg. 6: At all times, PIs must make all reasonable efforts to protect the privacy of individuals who are not under surveillance.

[189]     The fact that the Insurance Corporation has “Performance Standards” for its investigators is appropriate.  It recognizes that an investigation into the activities of a plaintiff, if not undertaken properly, has the potential to be intrusive, upsetting, and intimidating.

[190]     This reality gives rise to a necessary balancing of interests.  The Plaintiff accepts, and I do not question, the right of the Insurance Corporation to investigate those activities of a plaintiff that are relevant to the claim being advanced.  In most actions, a plaintiff has the advantage of being able to call friends and family to support the claim being made.  The evidence of these witnesses is often important because it adds content and texture to the plaintiff’s claim.  It provides the Court with an insight into the life of the particular plaintiff before and after his or her accident.  It generally corroborates the evidence of the plaintiff.

[191]     The Insurance Corporation is, in a sense, at a disadvantage.  Absent independent medical examinations and absent its own investigations, it has limited means available to it to test a plaintiff’s claim and evidence or the evidence of other witnesses.  It must necessarily ascertain whether there is other evidence or other witnesses whose evidence is relevant to that plaintiff’s case.

[192]     On the other hand, counsel for the Defendant accepts, and I have no doubt, that there are limits with respect to (i) the object or purpose of an investigation, (ii) the degree of investigation that is appropriate, and (iii) the manner in which that investigation is conducted.

[193]     The object of an investigation should be limited to ascertaining whether the plaintiff’s claim is forthright and reasonable.  Its purpose must be fact-finding in nature.  Its purpose cannot be to intimidate or embarrass a plaintiff.

[194]     These purposes, in turn, then define the scope of what investigation is appropriate.  The investigation should be proportionate to the magnitude and nature of the claim being advanced.  In this case, the claim advanced by Mr. Williams, for more than $2 million, was sizable.  Such a claim justifies a greater level of investigation.  His claim asserted that his work, his recreational and his social activities were all affected by the Accident.  These claims justified some investigation into each of these areas of Mr. Williams’ life.

[195]     And yet, as the Insurance Corporation’s “Performance Standards” recognize, “discretion and common sense” must be used “regarding the amount of information gathered”.  When a claim for loss of earning capacity is advanced, it will normally be appropriate to speak to a plaintiff’s employer or former employers and to a few past or present co-workers.  That level of inquiry should be sufficient to test and understand the plaintiff’s claim.  If those enquiries support some reason for concern, it may be appropriate to go further.  If they do not, it will not, absent something unusual, normally be appropriate to speak to an employer repeatedly or to speak to an unreasonable number of a plaintiff’s co-workers.  Excessive investigation will inevitably get back to a plaintiff and will be, at a minimum, embarrassing.  If it continues, it becomes intimidating.  It also has the prospect of casting a plaintiff in a poor light with others, as someone who is not honest or who is malingering.  Similar considerations pertain with respect to investigations or interviews with a plaintiff’s friends, acquaintances or teammates.

[196]     The Insurance Corporation, or its investigators, can carry out three different kinds of investigation.  In some cases, such as this case, they will do all three.

[197]      The first form of investigation is described as an “Open Source Investigation”.  The object of this investigation is to search public Internet and social media sites to learn more about a plaintiff’s activities and to determine a plaintiff’s level of function. Such sites are open to the public and there is nothing unlawful about searching them.  An open source investigation does not, or should not, breach any social media privacy settings.  Thus, the only information accessible to investigators is the information that is available to any member of the public.  All information is either posted by a plaintiff or by others with full knowledge that that information, including pictures, will be available to the public at large to view if they so desire.  I do not consider that reference by an investigator, retained by the Insurance Corporation, to such sites is improper.  This would include references to a social media site maintained by a plaintiff, or their immediate family, or their friends.  All such information is public and has the legitimate prospect of providing information about a plaintiff’s activities and level of functionality.

[198]     In circumstances such as in the present case, where Mr. Williams has argued that the Accident curtailed his athletic activities and social interactions, social media sites had the legitimate prospect of providing the Insurance Corporation with relevant and useful information.  Indeed, counsel for the Defendant used information, for example, that was obtained from a search of the Facebook page of Spagnuolo and Company, to cross-examine Mr. Spagnuolo.

[199]     In this case, the investigators retained by the Insurance Corporation also looked, for example, to information in the Land Title Office.  Mr. Williams, for a time, stayed at his parents’ home.  The investigators sought to ascertain who owned that home.  Again such information is public and I do not consider that activity was undertaken improperly.  To the extent investigators made similar inquiries about the ownership of Ms. Mitchell’s condominium I again do not consider that unreasonable or improper.

[200]     I also understand that the Insurance Corporation has the resources and ability to ascertain who owns a vehicle.  To the extent those resources are used in a limited and fact-specific way, I do not consider this to be inappropriate.

[201]     The second form of investigation is the actual surveillance of a plaintiff.  The object of surveillance, necessarily undertaken surreptitiously, is to ascertain whether a plaintiff’s actual or observed level of function and activity aligns with what that plaintiff asserts he or she is capable of doing.  There is nothing wrong, in concept, with such surveillance activity and it is a tool that is routinely relied on by the Insurance Corporation.

[202]     To the extent, however, that investigators become aware that their presence is known to a plaintiff, such surveillance is obviously ineffective.  If such surveillance persists, its purpose necessarily changes and it is difficult to see how ongoing surveillance could be justified.  In such circumstances the object of ongoing surveillance would be, at least in part, to communicate to a plaintiff that he or she is being watched or followed.

[203]     In this case, two separate firms, J.P. Moore Investigations Ltd. (“Moore”) and Paladin Securities (“Paladin”), conducted surveillance of Mr. Williams.  The Moore work was done between late 2016 and April 18, 2017.  Three investigators were involved.  The time spent attempting to obtain video footage was some 24 hours.  The actual video footage obtained, once edited to remove scenes that did not show the Plaintiff, was less than an hour.  Mr. Moore described the steps taken to avoid alerting Mr. Williams to their presence and he testified that he believed the Plaintiff was unaware of the surveillance being undertaken.

[204]     The surveillance conducted by Paladin took place between July 4, 2018 and March 24, 2019.  Not including travel time and reporting time, which Mr. Williams could not have known about, Paladin attempted to obtain video surveillance on 25 days for a total of slightly more than 83 hours.  From this effort, Paladin was able to obtain approximately 42 minutes of unedited video footage, which was turned into approximately 31 minutes of footage that was edited to remove scenes where Mr. Williams was not present.

[205]     Both the Moore and the Paladin video footage was used at trial.

[206]     The witness put forth by Paladin testified that it was not Paladin’s intent to harass Mr. Williams, his friends or his family.  That witness further testified that if Paladin suspected the Plaintiff knew he was under surveillance it would have aborted its activities.  I accept that evidence.

[207]     Mr. Williams testified that he was aware investigators were present at the arena where he and his teammates played hockey, that he found this upsetting and that he communicated this and other sources of concern to his counsel.  His counsel, in turn, sent an email to counsel for the Defendant on March 27, 2019 expressing concern over such surveillance and other matters I will turn to.  It is undisputed that after this email was delivered the surveillance of Mr. Williams ended.

[208]     The last form of investigation used is through witness interviews.  It is the form of investigation that is, in some senses, most fraught with risk.  This is so in various respects.  There is a very real prospect a plaintiff will learn that friends and colleagues are being contacted about them.  Furthermore, such interviews can affect a third-party’s perception of a plaintiff.  A plaintiff’s awareness that he or she is being investigated, particularly where that plaintiff is emotionally fragile or anxious or depressed, can be particularly distressing.

[209]     This does not mean that such interviews are inappropriate.  It simply means that judgment and discretion must be exercised when undertaking the process.

[210]     In this case various investigators from Paladin, Crawford Adjusters and Mercury Adjusters either sought to speak to or did speak to numerous witnesses.  Mr. Spagnuolo was contacted in the fall of 2016 and again in May 2019.  Mr. Ford was contacted in May 2019.  Mr. Sadler, the Plaintiff’s employer at Lender Connect, who did not give evidence at trial, was contacted in the fall of 2016.  Mr. Tulk and Mr. Gomes, who were the Plaintiff’s roommates at different times, were called by investigators though Mr. Gomes, who did not give evidence at trial, was not contacted successfully.  Most of these witnesses, I understand, indicated that they did not wish to speak to the investigator who contacted them.  There is no evidence that any of them were harassed in any way.

[211]     Two investigators with Paladin also sought to contact, or did contact, approximately 20 individuals who were on Mr. Williams’ hockey team.  Those efforts took place between October 3, 2018 and November 1, 2018.  Generally speaking, if the investigator left a message and their call was not returned they would try again.  If an individual indicated that they were not able to speak at that time, the investigator would again try to contact them at a later time.  If an individual indicated he did not wish to speak to the investigator, that individual would not be called again.

[212]     The individual who did most of these interviews, Mr. Smith, testified that almost none of the people who were contacted were prepared to speak to an investigator.  Mr. Smith said that if he had been able to get information from two or three such individuals, and if that information was generally consistent, he would not have persisted further or contacted anyone else.

[213]     The difficulty, however, is that Mr. Smith contacted 17 individuals within the space of a few days.  He did not wait for people to get back to him before he continued with his work.  I appreciate that to some degree what Mr. Smith did was efficient.  At the same time, his shotgun approach was the very approach or behaviour that can cause the sort of upset and difficulty that I have described.  It was inevitable that with such behaviour Mr. Williams and his teammates would discuss what was happening, as they did, and that such discussions would be upsetting for Mr. Williams.  It was not consistent with the direction in the “Performance Standards” that investigations are to be carried out in the “least obtrusive way possible”.

[214]     There is further evidence that another investigator with Paladin tried to contact one of Mr. Williams’ teammates by attending at his home.  That teammate was not at home at the time and the investigator spoke to his son.  Mr. Smith explained that it is often more effective to attend at an individual’s home than to try to speak to them over the phone.  That may be but such behaviour is necessarily more intrusive and more invasive.  Even if done politely it has the air of being more aggressive.  Arriving unannounced on the doorstep of a friend or teammate of a plaintiff is, again, likely to get back to that plaintiff and to be, at a minimum, embarrassing.

[215]     There is also evidence that one of Mr. Williams’ teammates, Mr. Clarkson, who gave evidence at trial, received an email from his workplace indicating that someone from “BC Hydro” had called him and asked him to return the call.  That individual was identified in the email as “Mr. Smith” and he had left his phone number.  When Mr. Clarkson returned the call, Mr. Smith identified himself as someone working on behalf of ICBC.  At that point Mr. Clarkson told Mr. Smith that he did not wish to discuss the Plaintiff’s claim.  Mr. Smith, in his evidence, denied seeking to contact Mr. Clarkson or any witness through false pretenses.  I am satisfied that both witnesses were truthful.  There is a real prospect that there was some miscommunication between Mr. Smith and the individual who subsequently sent an email to Mr. Clarkson.

[216]     To the extent, however, that an investigator misrepresents their status or identity, in order to speak to a potential witness, that would clearly be wrong.  It would also be inconsistent with the Insurance Corporation’s “Performance Standards”.

[217]     There was also an indication, in a file that was produced, that an individual within the Insurance Corporation had instructed Paladin’s investigators to conduct interviews of the persons who had been present at one or more weddings that Mr. Williams had attended.  There is no evidence this was done.  Nevertheless, it will be apparent that such a sweeping instruction, particularly if conducted as broadly and bluntly as the attempted interviews with Mr. Williams’ teammates, would, absent something unusual, be excessive and inappropriate.

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