The WSIB acknowledges that widespread fraud by injured workers is a myth. Yet the Board and employers often look to covert surveillance and private investigators in today’s aggressive and adversarial environment when the goal is to reduce long-term claims. As a 2021 CBC investigation indicates, ” it’s more often used to intimidate injured people into dropping their claims or dissuading others from making claims at all…” At the Appeals Tribunal level, WSIAT itself has recognized in numerous decisions that surveillance evidence is of limited value. Yet it has a huge prejudicial effect and can cause substantial harm. Snippets from a person’s life can be misleading, video evidence can be manipulated.
Targeting the most vulnerable
Unjustified surveillance adds to harm caused by the original injury or illness. It:
- delays physical recovery – the fear of being watched makes injured workers avoid the rehabilitation activities their doctors recommend, such as going for walks, light shopping, gardening and other limited duties of daily life
- damages mental health – feeling spied on and the loss of privacy often results in isolation, loneliness, depression or added anxiety, that also impact physical well-being
- hurts interpersonal and social relationships with neighbours and co-workers – surveillance stigmatizes the injured worker by questioning the legitimacy of a work injury or claim
Rather than investigate where there is reasonable suspicion in an individual case, the Board adopted a practice of “blanket suspicion” with injured worker files marked as problematic if they included what the WSIB considered indicators (“red flags”) of potential fraud. Internal guidelines obtained by IAVGO under a Freedom of Information request reveal that these indicators include language barriers, psychological problems, chronic pain or prolonged recoveries!
Taking action – a legal challenge on a human rights issue
In early 2015, the community made an important step forward in its fight back against the Board’s covert surveillance practices. Over 2014 a working group of community legal clinics, ONIWG and the OWA formed a strategy to challenge these practices of the Board as discriminatory against injured workers. They prepared a statement of fact for the Ontario Human Rights Commissioner who, following discussion with the WSIB, got their agreement to remove from their system all references to the discriminatory Red Flag list – and to prepare a guidance document for staff that “better reflects” a process for surveillance referrals that is in line with the Ontario Human Rights Code.
For more on the legal challenge, read “Human Rights of Injured Workers and Covert Surveillance by WSIB”, a presentation by ARCH Disability Law Centre.
- Marchitelli, Rosa. 2021 Feb. 8. “Go Public: Injured woman secretly videotaped by insurer, then wrongly accused of fraud.” CBC News
- IAVGO Community Legal Clinic. WSIB internal documents on surveillance (supplied through FOI request)
- Wolfson, Carmelle. 2014, Sep. 1. “Big brother’s watching: Ontario’s workers’ compensation board is increasingly using covert surveillance to target injured workers with costly claims, legal experts say.” OHS Canada
- Injured Workers’ Consultants. 2013, Nov. 28. “Submission on WSIAT Draft Practice Direction – Surveillance Evidence.” Toronto: IWC
- Lippel, Katherine. 2003, Jan. 24. “Legal and social issues raised by the private policing of injured workers.” Montréal: l’Université du Québec à Montréal