It was a textbook example of how credibility can implode in an instant.
Back when I was still in active practice, I represented a woman who I believed had legitimately suffered two herniated discs in a motor vehicle accident. The injuries were well-documented and appeared to be supported by objective post-accident imaging. Her claim for general damages was initially strong. But then came discovery. When asked by the very skilled defence lawyer about her daily limitations, she testified without hesitation that she was “totally disabled,” unable to perform basic household chores. When prompted for examples, she denied that she could “even stir a pot of soup.” In my office, she became known as the Soup Lady, but not for her culinary prowess.
Within the minute following her swearing under oath that she could not stand over the stove to cook soup for her children, she volunteered that she was moving house in the next two weeks. That single remark turned the tide. Defence counsel hired a surveillance team. Footage captured her, not just helping, but physically lifting two large sofas — one end carried by her husband, the other by her. You can imagine the look on my face when the defence counsel, with whom I had had very courteous past dealings, called me the first thing one morning soon thereafter and advised me of the results of his investigation. The video left little to the imagination. When the mediation came around, there was nothing left to negotiate. The credibility damage was irreversible.
This is the paradox mediators often face: how to reconcile claims of chronic pain and functional limitation with surveillance evidence that tells a different story. As the mediator, I am not a trier of fact — but I do evaluate risk. And in personal injury cases, particularly chronic pain cases, credibility is the currency. Once it is spent, there is often no refund.
A skilled plaintiffs’ counsel will often attempt to reframe surveillance evidence to preserve the narrative. A common tactic is to explain the footage as a rare good day — the plaintiff pushed themselves in a moment of determination or necessity, only to suffer for it in the days that followed. Another frequently used strategy is to remind the mediator and, ultimately, the court that surveillance only captures brief moments in time. A 20-minute video of grocery shopping cannot possibly tell the story of a person’s 24-hour pain cycle. These arguments are legitimate, and in many cases, true. But their persuasive power hinges entirely on the consistency of the plaintiff’s story and the accuracy of their testimony.
When I was practising, clients would often ask, “What if they’re watching me? Should I stop doing things in case they use it against me?” My answer was always the same: live your life. If you feel well enough to do something, do it. But if you are ever asked — under oath or otherwise — whether you did that particular activity, the only correct answer is yes. Tell the truth! The surveillance footage itself is rarely the problem. The problem arises when the plaintiff denies doing what is plainly caught on tape. In my experience, the credibility loss from being caught in a lie is usually far worse than the damage from the footage itself, as evidenced by my Soup Lady.
In recent mediations, several patterns have emerged. In one case, the plaintiff alleged debilitating pain and psychological injury, including a phobia of driving. Discovery testimony emphasized that she could not tolerate traffic and never used 400-series highways. But multiple rounds of surveillance captured her driving on Highway 401, dropping her children at school, stopping at drive-thrus, carrying baskets of cleaning supplies, and lifting items that appeared heavier than her sworn tolerence. The disconnect between testimony and tape was so stark it became the central issue in the mediations, and I failed to achieve resolution.
In another recent mediation, the plaintiff—a self-employed contractor—claimed chronic lumbar pain and an inability to perform light labour after a minor rear-end collision. He alleged that his condition forced him to decline work. Defence counsel presented two weeks of surveillance showing him climbing scaffolding, using power tools, and hauling debris with ease. Plaintiff’s counsel argued these were isolated moments, but the footage showed consistent physical capability that directly contradicted both his claims and treatment records. The defence used it to challenge threshold and credibility. The case settled for far less than demanded, with even plaintiff’s side recognizing the trial exposure.
In another mediation, the plaintiff claimed severe post-concussive symptoms, anxiety, and cognitive impairment that kept her housebound and unemployable. However, defence counsel introduced publicly available Instagram and TikTok posts showing her travelling, attending a fitness boot camp, and posting articulate product reviews. The content sharply contradicted her reported limitations. Faced with this, plaintiff’s counsel acknowledged the credibility issue, and expectations shifted. The case resolved on terms reflecting the functional reality captured online—not the narrative advanced in her brief.
Similarly, in another case I recently mediated, the plaintiff presented with a consistent pain narrative and avoidance of public spaces due to anxiety. Yet surveillance showed prolonged errands, including heavy lifting and social engagements. The plaintiff’s psychologist attempted to explain this as “bravery in small doses,” the defence counsel and insurer saw it as overreach.
The Ontario courts have repeatedly weighed in on the probative value of surveillance evidence in personal injury litigation, particularly when it goes to the core issue of credibility. In Ismail v. Fleming, 2018 ONSC 5667, the plaintiff claimed ongoing severe limitations due to soft tissue injuries and chronic pain syndrome following a motor vehicle accident. He testified that he could not walk for more than ten minutes and required assistive devices. Surveillance obtained by the defence, however, showed him dancing energetically at a wedding reception. Justice Leach found the surveillance directly contradicted the plaintiff’s testimony, noting that it seriously undermined his credibility on the nature and extent of his ongoing symptoms. The court ultimately rejected the plaintiff’s threshold claim and significantly reduced damages.
Girao v. Cunningham, 2020 ONCA 260, though primarily focused on the admissibility of surveillance and procedural fairness, reinforced the evidentiary weight surveillance can carry when properly disclosed. The Court of Appeal underscored the importance of early and complete production of surveillance under Rule 30, affirming that surprise tactics at trial would likely result in exclusion, but well-timed disclosure could significantly influence the trier of fact.
The strategic decision about whether and when to disclose surveillance is one that defence counsel must make with great care. If the footage is irrefutably damaging — for example, a plaintiff doing construction work after alleging physical disability — early disclosure may pressure the plaintiff into settlement. It can also reframe the entire mediation, compelling plaintiff’s counsel to negotiate from a weakened position. Early disclosure also helps preserve the admissibility of the evidence should the matter proceed to trial, as failure to disclose under Rule 30 risks exclusion under Girao.
However, there are cases where holding the footage back can serve the defence better. If the surveillance is only moderately inconsistent, it may be more valuable as impeachment material on cross-examination. Revealing it too early might allow the plaintiff to recalibrate their story or generate new medical explanations. Furthermore, if further surveillance is anticipated, withholding the initial footage may avoid prompting the plaintiff to alter behaviour or retreat into inactivity, rendering subsequent rounds of surveillance useless.
Sometimes, the most subtle strategic move is for defence counsel to alert plaintiff’s counsel — delicately, and without specifics — that surveillance has been conducted and may continue post-mediation. This serves as a shot across the bow: settle now, or risk more damaging footage later. But this too is a gamble. If subsequent surveillance fails to support the defence narrative, or worse, humanizes the plaintiff, the tactic can backfire.
Surveillance does not just challenge the factual matrix — it reframes the case. It’s a credibility wrecking ball. As a mediator, when the evidence is strong and the disconnect stark, my role shifts from risk calculator to damage controller. I help parties understand that the issue is no longer what happened, but who is believable. And once a jury or judge doubts the plaintiff’s truthfulness, all else — even herniated discs — starts to look like an exaggeration. In personal injury mediation, credibility is not just part of the case. Sometimes, it is the case.