Yes. In an Ontario car accident lawsuit, the defence may ask to use surveillance footage or social media posts to challenge what an injured person says about their recovery. A judge decides whether the evidence can be used and for what purpose. A short clip can show someone lifting a bag, walking to a car, or attending an event. Its significance depends on what the person says they can do, how often they can do it, and how the clip fits with the other evidence.
The Ontario Court of Appeal considered those questions in Nemchin v. Green, 2019 ONCA 634. The case shows why surveillance can matter and why the court needs to look closely at what each clip actually shows.
Read the Court of Appeal decision: Nemchin v. Green, 2019 ONCA 634 (CanLII)
What happened in the Nemchin case
The lawsuit followed a collision in Ottawa. Yvonne Green turned left into oncoming traffic and collided with Tanya Nemchin. At trial, the parties disputed how much the collision contributed to Nemchin’s post-traumatic stress disorder. They also disagreed about how the condition affected her ability to work and manage daily activities.
The defence argued that Nemchin could do more in her daily life than she had described. To support its argument, it wanted to show the jury surveillance clips and Facebook posts.
Nemchin’s own evidence included a video from a yoga retreat. It showed her doing some activities she said she now found harder. The trial judge excluded the defence surveillance and Facebook material. The jury assessed damages at approximately $700,000, and Green appealed.
What the Ontario Court of Appeal decided
The Court of Appeal found errors in how the trial judge dealt with the surveillance footage. One was assessing the videos as a group. The court explained that the judge should have considered the individual clips the defence wanted to use. A clip can show what a person can do or help put their testimony in context. It can do so even if it does not contradict what they said.
The appeal court also considered the effect of the error. Is the other side using surveillance footage or social media posts to question your injuries? A car accident lawyer in Brampton can review the evidence alongside your treatment records and work history. Your lawyer can also consider how you describe your recovery.
The court dismissed the appeal and left the verdict in place. Whether the trial court should have heard the evidence is one question. Whether that evidence would have changed the verdict is another.
What a short surveillance clip can show
Imagine someone says their back injury limits how long they can stand or carry groceries after a collision. A video shows them carrying a bag from a car to their front door. That footage shows they carried the bag on that occasion. To understand how much it matters, you would want to know how heavy the bag was, how far they carried it, whether someone helped with the rest of the groceries, and whether the activity led to symptoms later that day.
The same footage could matter more if the person had said they were unable to carry any bag at all. The difference is in the specific limitation being claimed. Being able to complete a task briefly, being able to repeat it throughout a workday, and being able to do it without help are three different questions. Medical records, work records, and accounts from people who see the person regularly can help explain how an observed activity fits into their recovery.
How Facebook or Instagram posts can be used
Social media posts can become relevant if they address something disputed in the lawsuit. A photograph could help establish that someone attended an event or took part in a particular activity. The date, caption, and circumstances can affect how much the image tells the court. For example, someone may upload a photo on a different day from when they took it.. A picture from a family gathering may show a few minutes of an outing that lasted several hours.
In Nemchin, the Facebook posts raised a separate issue. Defence counsel had given the trial judge an incorrect account of how the posts were obtained under an access agreement between counsel. On the record presented at trial, the Court of Appeal held that excluding those posts was not an error. The court distinguished their treatment from its findings about the surveillance footage. Ontario’s Rules of Civil Procedure also treat recordings, photographs and electronic information as documents for disclosure purposes. The duty to disclose evidence and its admissibility at trial are distinct questions.
Why disclosure and context matter
A lawyer reviewing surveillance footage may ask when someone recorded it, whether the original is available, whether anyone edited the clips, and when the other side received them.Timing matters because the injured person may need an opportunity to explain the footage or have an expert review it. In Nemchin, the Court of Appeal explained that the trial judge needed to assess whether using the late-disclosed footage would actually be unfair in the circumstances.
If footage or posts come up in your claim, preserve the original material and share it with your lawyer along with any context you remember. Be specific about your abilities. For example, if you can shop for 20 minutes but need help carrying heavier items and a break afterward, those details describe your day more accurately than a broad statement that you can or cannot shop. The same approach helps explain a return to work with shorter shifts, lighter duties, or extra breaks.
Speak with a car accident lawyer in Brampton
If the other side uses surveillance footage or social media posts to question your injuries, a car accident lawyer in Brampton can review what the material shows alongside your treatment records, work history, and account of your recovery. Brij Mohan & Associates assists clients with Ontario motor vehicle injury claims and can discuss how disputed evidence may affect your case. Call 416-994-8989 to request a confidential consultation.
Related information: Brampton car-accident injury services | Contact Brij Mohan & Associates
This article provides general information. Legal advice depends on the facts and evidence in your case.