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WSIB AND THE RIGHT TO SPY

QUESTION: I suffered an injury at work and following months of physiotherapy, tests and specialists, WSIB decided that I had a permanent injury that prevented me from doing my job.  While my employer did make modifications to my work to accommodate my injuries, they did not like WSIB's decision.  They sent WSIB 6 hours of video tape taken of me in the workplace and around my house to try to show that I was not really injured.  Luckily, WSIB rejected that evidence because it did not show me doing anything that my injuries would not allow.  Do they have a right to do this?
 
Answer: Unfortunately, they do.  Insurance companies will often respond to a claim for disability coverage or personal injury damages by having the claimant followed around by a private investigator with a video camera.  The private investigator is not allowed to trespass on your property, but as long as the filming is done from a public place, there is no law against it.  In your case, filming was also done of you at work.  The employer owns the workplace and consented to filming in the workplace.  There are no trespass issues involved.
 
If you were in a union, it would likely have something to say on the matter and would file a grievance with respect to the filming.  Absent a union, however, there are no laws prohibiting your employer from engaging in this behaviour.
 
I advise clients who become aware that they are being videotaped to verbally confront the private investigator, let her know that you know she is there and tell her that if she does not leave your alone, you will call the police.  Although the police will not likely charge the investigator in the first incident, if the investigator persists in the behaviour, they just might charge her with criminal harassment.  The criminal harassment laws in the Criminal Code are new and I do not believe there has been a case yet where a private investigator has been charged.  It is, however, worth giving it a try.
 
As published in the Hamilton Spectator, January 21, 2002
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com