In striking out a Statement of Claim that raised arguments the Judge described as “beyond novel”, the Ontario Superior Court of Justice made some interesting observations regarding what is permissible during the investigation of an accident claim.

The plaintiff was involved in a car accident, and brought an action against the other driver.  As the case was coming up for trial, the defendant’s insurer, Dominion of Canada, hired Garda, a firm of private investigators, to conduct an investigation into the plaintiff’s activities and abilities.  When the investigator contacted a neighbor seeking information, the neighbor immediately reported this to the plaintiff, who apparently became upset over the fact that she was being investigated.  The plaintiff launched a second action, claiming damages for abuse of process and conspiracy, against Dominion, the Dominion adjuster, Garda, the Garda investigator, and even the other driver (Dominion’s insured).

The defendants in the second action brought a motion to strike the Statement of Claim on the grounds that it disclosed no cause of action, and was scandalous, frivolous, and vexatious.

The case contains concise and useful statements as to what makes up the torts of abuse of process and civil conspiracy.  According Ramsay, J., the tort of abuse of process is narrowly defined.  The plaintiff “must plead that a process was initiated against her before a tribunal for an improper or collateral purpose, and that there was some overt act or threat, separate and distinct from the proceedings themselves, but related to the improper purpose”.

Although private investigators are licensed and regulated by the Province and their investigation results are often presented as evidence in Court, this does not make an investigator into a tribunal.  Since the plaintiff’s allegations could never support a finding of liability for abuse of process, that portion of the statement of claim was struck out.

The plaintiff pleaded that the defendants conspired to intimidate her into dropping her claim in the motor vehicle action.  The judge stated that the tort of conspiracy to injure is available in two scenarios: (1) where the predominant purpose of the defendants’ conduct is to injure the plaintiff, whether the defendants’ actions are lawful or unlawful; and (2) where the defendants’ actions are unlawful, the conduct targets the plaintiff, and the defendants know or ought to know that the plaintiff is likely to suffer harm.  In either case, the plaintiff must suffer actual damage.

Since the plaintiff was not intimidated into dropping the original action, she suffered no harm, and the tort of conspiracy was not available to her.

The judge made some additional comments about what is and is not permissible behavior on the part of insurance investigators:

Insurance companies are entitled to conduct surveillance of plaintiffs if they do so within the confines of the law.  The cannot trespass on private property and they cannot intercept communications electronically.  They cannot threaten witnesses or litigants.  They cannot commit the tort of defamation.  The plaintiff does not claim that they did.  The fact that a private investigator is conducting an investigation is not defamatory.  Anyone who is involved in a car accident or a divorce might be investigated by a private investigator.

Insurance companies do not need grounds to believe that the plaintiff is making a fraudulent claim before they conduct an investigation.  They can conduct surveillance to refute a claim, or to see whether a claim is valid or not.  They can photograph a plaintiff in places open to public view.  They can identify themselves to neighbours, and ask them for information about the case.

Essentially, insurance companies have a right to use investigators to gather evidence on a claim, so long as the investigators do not commit any criminal or tortuous acts in the process.

Citation: Pontillo v. Zinger et al., 2010 ONSC 5537

http://www.canlii.org/en/on/onsc/doc/2010/2010onsc5537/2010onsc5537.pdf

Richard Hayles, B.A., J.D.

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