In February 2008, the Court of Appeal rendered a decision (Veilleux vs. Compagnie d’assurance-vie Penncorp) in which the insured had instituted proceedings against his insurer claiming damages for invasion of privacy. The insurer had proceeded to a series of three surveillances of its insured pursuant to an invalidity claim.

The Superior Court had rejected the proof obtained during the two first surveillances performed by the insurer.

The insured then presented a motion to claim damages, arguing that his insurer had violated his right to privacy.

The Superior Court granted the insured’s action, and the insurer appealed this decision.

The Court of Appeal first reminded the principles regulating the surveillances and the invasion of privacy citing the decision of the Supreme Court of Canada in Syndicat des travailleuses et travailleurs de Bridgestone/Firestone de Joliette (C.S.N.) vs. Trudeau. The Court then reiterated the criteria for the admissibility of such evidence obtained by surveillance, namely that same must be justified by rational motives and the execution of the surveillance must be reasonably done as per article 9.1 of the Chart of Human rights and Freedoms (L.R.Q., c. C-12).

The Court of Appeal added that surveillance by shadowing must be necessary in order to appreciate the merit of the proceedings instituted and must be done by the less intrusive means possible.

According to the Bridgestone’s decision, the surveillance executed in public places will be considered the least intrusive given that what takes place may be seen by everyone. The same reasoning applies for the surveillance performed from the exterior of the residence of the person that is being monitored.

The Court of Appeal laid down the criteria that may lead a Court of justice to conclude that an intentional invasion of privacy has taken place, as per article 49, paragraph 2 of the above-mentioned Charter. The author of the illicit invasion of privacy must want the consequences of its faulty action or to act knowing the immediate and natural consequences or extremely probable consequences of his conduct. If said behaviour is unreasonable and shocking, not justified, grave or repetitive, these elements are likely to meet the burden of proof required.

In the present case, the Court of Appeal was of the opinion that the insurer should not have ignored the decision rendered by the Superior Court with regards to the inadmissibility of the two first surveillances, and therefore, should not have performed the third.

The Court concluded that the three surveillances performed by the insurer were an invasion of the privacy of the insured. It is to be noted that the insurer had requested, during the investigation of the claim the authorization of the Court to examine the insured and to obtain a medical examination, which the Court refused. The Court of Appeal states that, at that moment, since the proof obtained by surveillance had been rejected up to that point, the insurer should have known that it could not continue to proceed with the surveillance of the insured.

The Court was also of the opinion that the means used by the insurer were an excessive and intolerable invasion of the private life of the insured. The Court concluded that the invasions of privacy were intentional and justified granting punitive damages of $125,000.

In conclusion, surveillance and shadowing must be justified by rational motives, and must be led by reasonable means and less intrusive means as possible. It is to be expected that in situations where one party will not have complied to the abovementioned standards, the Court will severely sanction the faulty behaviour.