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ICBC’s Right To Conduct Surveillance

I have agreed to attend a medical examination requested by ICBC. Can ICBC conduct surveillance of me as I travel to and from this examination?

In the course of litigation arising from a motor vehicle incident it is common for ICBC to compel a plaintiff (injured party) to attend a medical examination conducted by a specialist of their choice. This provides an ideal scenario for ICBC to conduct surveillance of a plaintiff as they have a good idea of where and when the plaintiff will be at that time. In order to guard the interests of their client, plaintiff counsel often seek conditions of attendance from opposing counsel regarding these medical examinations and typically include a term that precludes the surveillance of the plaintiff while traveling to and from these examinations. In the event that counsel can not agree on the terms the Court will order them largely on the basis of fairness. In regards to surveillance, Courts in the past have been receptive to granting orders prohibiting surveillance by ICBC of the plaintiff while he/she travels to and from these medical examinations.

In the case of (Marques v. Stefanov, Unreported) Madam Justice Dorgan was asked to grant this same order leading her to question whether this type of order had too restrictive of an impact on ICBC’s right to discovery. Upon review of the case law, Madam Justice Dorgan was not persuaded to grant the prohibitory order in favour of the plaintiff as she felt the Courts had a seemingly lackluster evidentiary basis for doing so in the past. In conclusion, Madam Justice Dorgan found that by denying ICBC the ability to surveil the plaintiff during their travel to and from a medical examination, without compelling reasons or an evidentiary basis, unduly limits ICBC’s right to discovery.

[16] In the Ng case, as well as in the Carta case, there is no analysis of surveillance in the context of the evidentiary record before the court. Indeed, in Ng, the master notes there is no evidence in regard to the issue of surveillance.

 [17] I was given no case authorities where these two decisions were followed.

 [18] Without more, and with all due respect, I do not consider myself bound by these statements in respect of surveillance. To impose the general conditions sought by the plaintiff would, in my view, unduly restrict the defendants’ right of discovery without compelling evidence of why it would be reasonable to do so and why it would be required and necessary to do so in order to achieve parity between the parties.

 [19] Such a general “rule”, if imposed, would, in a motor vehicle case, limit a defendant’s ability to surveil a plaintiff where, for example, the plaintiff is compelled by a subpoena to attend court. It could be in an unrelated case, but compelled nonetheless to attend court in order to provide evidence.

 [20] That, in my view, is a restriction which ought to be avoided unless the evidence and the arguments convince a court in the exercise of its discretion that such a restriction is necessary to achieve parity between the parties. I know that Mr. Collins, during argument, suggested that a plaintiff could be surveilled at the courthouse and indeed Mr. Collins points out that within the courthouse itself there are signs to indicate that surveillance is in place. That, in my view, is different than having a defendant in a case like this conduct surveillance. A defendant would not be able to surveil a party inside the courthouse. The surveillance signs Mr. Collins refers to are signs to indicate security surveillance is in place.

 [21] In my view, the imposition of a broad, all-encompassing restriction, as is sought here, of an otherwise legal discovery tool should be avoided. Such restriction, if any, should be imposed by a court exercising discretion judicially, on evidence, which would lead the court to conclude that the restriction was necessary in order to achieve parity between the parties, and is therefore a reasonable restriction of an otherwise legal discovery tool.

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