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“Troublesome” ICBC Surveillance Practices Come Under the Judicial Microscope

Written by ERIK MAGRAKEN on . Posted in ICBC Privacy Issues, Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.

In the recent case (Williams v. Sekhon) the Plaintiff sustained serious and disabling injuries in a 2013 collision that the Defendant accepted fault for.  In the defence of the claim the Defendants insurer, ICBC, conducted a ‘troublesome‘ amount of surveillance into the Plaintiff’s life.  The Plaintiff requested that special costs be awarded for this.  While the court did not go so far as to award special costs Mr. Justice Voith provided the following lengthy comments setting parameters into what is and is not reasonable surveillance:

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Court Allows Video Surveillance Evidence Despite Defence Failing to List Document

Written by admin on . Posted in ICBC Privacy Issues.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, allowing the introduction of video surveillance evidence despite counsel failing to disclose this evidence on their list of documents.
In today’s case (Karpowicz v. Glessing) the Plaintiff was involved in a collision and sued for damages.  The Defendant “retained a private investigator and, on June 27, 2016, filmed a short video of the plaintiff at the Vancouver International Airport accompanied by his wife and children.”  Plaintiff’s counsel was provided the video ahead of a mediation but the document was never listed on the Defendant’s formal list of documents.  The Plaintiff objected to the video’s introduction at trial but the Court ruled the evidence was admissible as there was a lack of prejudice from the failed disclosure.  In reaching this conclusion Madam Justice MacNaughton provided the following reasons:

[34]         I have concluded that the video evidence should be admitted. While I agree that the defendant had a clear obligation under Rule 7‑1(9) to list the video as a document as soon as it came into his possession, I accept defence counsel’s representation that the failure to list the video was not for a tactical advantage at trial. Counsel frankly acknowledged that it was an oversight on her part, and as soon as the plaintiff raised the issue, the video was listed in the supplementary list of documents. The late listing of the video has not caused the plaintiff prejudice.

[35]         If it had been listed in the summer of 2016, presumably it would have been done so as a privileged document. The plaintiff would have known of its existence, but not its content, as the video was not required to be disclosed until the defendant determined to rely on it at trial. On that determination, the video was disclosed to the plaintiff. The disclosure was in advance of the deadline for disclosure in Rule 12‑5(10).

[36]         The plaintiff has had time to consider the video and to prepare to address it in his evidence at trial. The defendant had the right to investigate the plaintiff’s claims and the video is relevant to the issues the plaintiff has put before the court.

[37]         As to the issue of privacy, the video was taken at Vancouver International Airport at the passenger pickup area. The plaintiff and his family had no reasonable expectation of privacy while at the airport. The video focuses on the plaintiff, and the plaintiff’s spouse and the children are incidental to that focus or in the background of the video. Counsel for the defendant has obscured the faces of the children so that they are not identifiable.

[38]         In all these circumstances, I conclude that the video ought to be admitted.

BC Court of Appeal – Vicarious Liability Under the Privacy Act is an Open Question

Written by admin on . Posted in ICBC Privacy Issues.

Today the BC Court of Appeal released reasons for judgement finding it is an open ended question whether BC’s Privacy Act allows an employer to be vicariously liable when an employee willfully violates the privacy of another.
In today’s case, (Ari v. ICBC) a proposed class action, the Plaintiff sued ICBC alleging various improprieties arising from an employee improperly accessing “the personal information of about 65 ICBC customers“.
A chambers judge dismissed all of the claims except one under BC’s Privacy Act which makes it a tort  “for a person, wilfully and without a claim of right, to violate the privacy of another.“.
ICBC argued this section does not permit them to be sued for an employees wrongdoing.  The BC Court of Appeal disagreed and found it is an open ended question of whether vicarious liability can be attached to this statutory tort and that the issue needs to be addressed through the trial process.  In allowing this claim to survive the pleadings motion the BC Court of Appeal provided the following reasons:

[25]        It is not clear that s. 1 of the Privacy Act should be interpreted as limited in the same fashion as the relevant provisions in Nelson. Section 1(1) states that “[i]t is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another”. There is no language (as there was in Nelson) that clearly limits a plaintiff to recovery of damages from the person identified in s. 1(1). While, as the chambers judge observed, vicarious liability for acts of intentional and deliberate wrongdoing has generally been rejected, it is not unheard of (see: Lewis Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012) at 682). To the extent that s. 1(1) of the Privacy Act requires deliberate wrongdoing, it is not per se incompatible with vicarious liability.

[26]        Although Nelson may provide, by analogy, a basis for denying the availability of vicarious liability, I cannot conclude that the chambers judge erred in finding the appellant’s claim is on this basis, not bound to fail.

[27]        Alternatively, ICBC says that there is a policy argument which supports its position that there is no cause of action in vicarious liability. For policy reasons ICBC says, employers should not be held vicariously liable for wilful breaches of privacy under the Privacy Act.

[28]        ICBC also contends that the question before the chambers judge was whether vicarious liability should be imposed due to policy considerations. It says that the appropriate question to ask is: should liability lie against a public body for the wrongful conduct of its employee, in these circumstances? The question necessarily demands some exploration of the evidence about the connection between ICBC’s security procedures and the security lapse that occurred, as well as a weighing of the policy considerations involved. It is reasonable to conclude that a factual matrix is necessary in order to fairly address whether ICBC’s conduct materially enhanced the possibility of committing the breach of privacy, and to determine the connection between the impugned conduct and ICBC’s conduct. In other words, to clearly determine how public policy considerations affect the viability of the vicarious liability claim, some evidence is required.

[29]        ICBC submits in the further alternative that ss. 73 and 79 of the Freedom of Information and Protection of Privacy Act bar recovery for vicarious liability. Section 79 provides that the Act prevails where it conflicts with the provisions of other legislation. Section 73(a) prohibits proceedings against a public body for damages resulting from good faith disclosure or non-disclosure of all or part of a record under the Act.

[30]        As the disclosure alleged was not a good faith disclosure, s. 73 has no application to the circumstances of this case.

[31]        I am of the view that the question of vicarious liability on the facts of this case cannot be resolved on a pleadings motion. It is not plain and obvious the claim would fail. The chambers judge considered that the appellant ought to have the opportunity to develop and argue this aspect of his claim. I see no error in her conclusion.

[32]        For these reasons I would dismiss ICBC’s cross-appeal.

Privacy A Rare Protection For Personal Injury Plaintiffs

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized. 50 Comments on Privacy A Rare Protection For Personal Injury Plaintiffs

When a personal injury claim proceeds to trial oftentimes publicly available reasons for judgement are published which are accessible by all.  These frequently reveal details about a Plaintiff’s health, limitations, injuries and other personal details.  Reasons for judgement were released discussing if a Plaintiff should be granted anonymity in published reasons for judgement.  In short, the Court held that absent exceptional circumstances, such privacy protections should not be granted.
In the recent case (Davidge v. Fairholm) the Plaintiff, who was injured in a collision, asked for anonymity on the basis that “ publishing the plaintiff’s name might hurt him in his employment, as his employer might treat him differently after learning about his medical issues.  This is because the plaintiff works in employment that involves some physical stress on his body”.  ICBC objected to the reqest for privacy.  In denying the Plaintiff’s request Madam Justice Griffin provided the following reasons:

[12]         The law is clear that anonymizing a judgment by substituting initials for a litigant’s name should only occur in rare circumstances, such as where it is necessary to protect a vulnerable litigant or a vulnerable person who can be identified through the litigant.

[13]         I find that there is nothing exceptional about this case which requires a publication ban on the name of the plaintiff.  There is no more of an invasion of privacy in this case than in an ordinary case and the plaintiff is not a vulnerable person.

[14]         I also note that if publication bans were a matter of course in personal injury trials this could negatively impact the administration of justice.  There are sound reasons for publishing the names of litigants.  One benefit of the open court principle is that it brings home to a person who testifies the importance of telling the truth and increases the potential consequences of failing to do so.  This is one reason the Third Party’s opposition to such an application is an important factor to weigh.

[15]         The application to anonymize the judgment is therefore refused.

"The special place of confidentiality in the physician-patient relationship" Discussed by BC Court of Appeal

Written by admin on . Posted in ICBC Privacy Issues. 51 Comments on "The special place of confidentiality in the physician-patient relationship" Discussed by BC Court of Appeal


In reasons for judgement released this week the BC Court of Appeal discussed physician patient confidentiality and the limited basis for disrupting this.
In this week’s case (Logan v. Hong) the Plaintiff was advancing a class action for damages on behalf of  “all persons who were injected with Dermalive in Canada and who thereafter developed granulomas in the area injected with Dermalive.”   The Plaintiff proposed to notify the class members by direct mail.   Mr. Justice Sewell agreed this was appropriate and ordered various physicians to provide the information concerning these patients to counsel for the plaintiff.
The Court of Appeal overturned this order finding it would unduly interfere with doctor/patient confidentiality.  In doing so the BC Court of Appeal provided the following reasons:
[11]         Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship…
[13]         The special place of confidentiality in the physician-patient relationship is of long standing. In Halls v. Mitchell, [1928] S.C.R. 125, the Supreme Court of Canada commented upon the duty of secrecy owed to a patient, affirming that the patient’s right of confidentiality is superseded only by issues of paramount importance. Mr. Justice Duff, for the majority, described this principle at 136:
We are not required, for the purposes of this appeal, to attempt to state with any sort of precision the limits of the obligation of secrecy which rests upon the medical practitioner in relation to professional secrets acquired by him in the course of his practice. Nobody would dispute that a secret so acquired is the secret of the patient, and, normally, is under his control, and not under that of the doctor. Prima facie, the patient has the right to require that the secret shall not be divulged; and that right is absolute, unless there is some paramount reason which overrides it. Such reasons may arise, no doubt, from the existence of facts which bring into play overpowering considerations connected with public justice; and there may be cases in which reasons connected with the safety of individuals or of the public, physical or moral, would be sufficiently cogent to supersede or qualify the obligations prima facie imposed by the confidential relation.
                                                                                    [Emphasis added.]
[14]         And, at 138:
It is, perhaps, not easy to exaggerate the value attached by the community as a whole to the existence of a competently trained and honourable medical profession; and it is just as important that patients, in consulting a physician, shall feel that they may impart the facts touching their bodily health, without fear that their confidence may be abused to their disadvantage. …
                                                                                    [Emphasis added.]
[15]         More recently, the Supreme Court of Canada, referring to Halls, restated the significance of confidentiality to the physician-patient relationship in McInerney v. MacDonald, [1992] 2 S.C.R. 138, 93 D.L.R. (4th) 415, discussing at 148 a patient’s right to access to medical records:
When a patient approaches a physician for health care, he or she discloses sensitive information concerning personal aspects of his or her life. The patient may also bring into the relationship information relating to work done by other medical professionals. The policy statement of the Canadian Medical Association cited earlier indicates that a physician cannot obtain access to this information without the patient’s consent or a court order. Thus, at least in part, medical records contain information about the patient revealed by the patient, and information that is acquired and recorded on behalf of the patient. Of primary significance is the fact that the records consist of information that is highly private and personal to the individual. It is information that goes to the personal integrity and autonomy of the patient. As counsel for the respondent put it in oral argument: “[The respondent] wanted access to information on her body, the body of Mrs. MacDonald.” In R. v. Dyment, [1988] 2 S.C.R. 417, at p. 429, I noted that such information remains in a fundamental sense one’s own, for the individual to communicate or retain as he or she sees fit. Support for this view can be found in Halls v. Mitchell, [1928] S.C.R. 125, at p. 136. There Duff J. held that professional secrets acquired from a patient by a physician in the course of his or her practice are the patient’s secrets and, normally, are under the patient’s control. In sum, an individual may decide to make personal information available to others to obtain certain benefits such as medical advice and treatment. Nevertheless, as stated in the report of the Task Force on Privacy and Computers (1972), at p. 14, he or she has a “basic and continuing interest in what happens to this information, and in controlling access to it.”
                                                                                    [Emphasis added.]
[16]         Whether referred to as secrecy, personal autonomy, confidentiality, or privacy, the patient’s interest in protecting information of his or her medical treatment is reflected in the Code of Ethics of the Canadian Medical Association under the heading Fundamental Responsibilities:
Privacy and Confidentiality
31. Protect the personal heath information of your patients.
…
35. Disclose your patients’ personal health information to third parties only with their consent, or as provided for by law, such as when the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients themselves. In such cases take all reasonable steps to inform the patients that the usual requirements for confidentiality will be breached…
[25]         I conclude that, giving full weight to the principle of privacy and confidentiality inherent in the physician-patient relationship, the limited circumstances that call for breaching the patients’ privacy are not present here.

The Duty of Lawyers to "Investigate" Litigants Social Media Use

Written by admin on . Posted in ICBC Privacy Issues.


It is well established that social media postings and other electronic ‘records’ can be relevant in injury litigation.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this and discussing litigant’s duties to canvass these documents in the course of litigation.
In  last week’s case (Ahadi v. Valdez) the Plaintiff was injured in a 2005 collision.  In the course of her trial an e-mail which was not previously disclosed was put to a witness. This led to a delay of the trial with further discovery taking place.   Madam Justice Adair provided the following comments addressing this development:
[154]     The defendants argue that Ms. Ahadi’s failure, prior to trial, to disclose all relevant electronic documents demonstrates a general lack of honesty on her part.  The problem relating to discovery of electronic documents was discovered on the third day of trial, when Mr. Marcoux showed e-mail communications to a witness (Ms. Betty Chow, Ms. Ahadi’s boss when she was working at Shoppers Drug Mart) that had not previously been disclosed to the defendants.  Mr. Marcoux acknowledged that he had received the e-mail communications from Ms. Ahadi shortly before the trial began.  An order was then made concerning production of electronic documents, and Ms. Ahadi was required to submit to further oral examination for discovery.  This turn of events was very unfortunate, and made an already stressful experience (the trial) even more so.  It was also completely avoidable, if only appropriate inquiries had been made by Ms. Ahadi’s solicitors prior to trial concerning the existence and location of relevant and producible electronic documents.  Court had to be adjourned early on the third day of trial, after the issues concerning Ms. Ahadi’s electronic documents had been uncovered and during Ms. Ahadi’s examination-in-chief, because Ms. Ahadi felt unable to continue in the circumstances.
[155]     The defendants argue that, because of the circumstances surrounding production by Ms. Ahadi of electronic documents and the conflicts in her evidence concerning the location of electronic documents in her home, I should give no weight to either Ms. Ahadi’s evidence at trial or her self-reports to the various experts.  The defendants say that anything less would be unjust to them.  They also argue that I should draw an adverse inference against Ms. Ahadi.
[156]     I do not agree. 
[157]     In my opinion, it does not follow from what happened concerning discovery by Ms. Ahadi of electronic documents that I should give no weight to her evidence generally.  Ms. Ahadi’s solicitors need to accept at least some of the responsibility for what occurred.  Prior to trial, they should have investigated the existence of relevant electronic documents much more thoroughly than they did.  Had they made a proper and thorough investigation, Ms. Ahadi’s solicitors could have avoided placing their client in the uncomfortable position in which she found herself on the third day of trial.  Defendants’ counsel also had the opportunity to pursue the matter of electronic documents (such as Facebook postings and e-mail), when Ms. Ahadi was examined for discovery some nine months before the trial, but they did not.  In my view, Ms. Ahadi’s evidence should be assessed looking at all of the relevant factors.  The court can accept some, all or none of the evidence of a witness.

Surveillance and You-Tube Videos Mount "Serious Attack" on Personal Injury Claim

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A few years ago I discussed  litigants spying on themselves through the use of social media.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this reality in action.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was involved in a 2007 motor vehicle collision.  He claimed significant damages and proceeded to trial.  Although there was medical evidence in support of his claim a jury outright rejected it and awarded $0 in damages.
The Plaintiff appealed arguing that such a verdict was “not open to the jury on the evidence“.  The BC Court of Appeal disagreed finding that credibility was a live issue and surveillance and even You-Tube evidence was introduced which could have explained the Jury’s rejection of the medical evidence.   In dismissing the appeal the Court provided the following reasons:
[25]         A major thrust of the respondent’s case was an attack on the credibility of the appellant.  Evidence was adduced of long-term, pre-existing medical issues and personal difficulties the appellant had been obliged to face over the years.  The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries.  It was supplemented by YouTube videos to the same effect.
[26]         The appellant presented evidence that he has medical difficulties, both physical and mental.  The difficulty is that the appellant was obliged to satisfy the jury that the injuries were caused by the accident.  There was evidence that these difficulties were more severe manifestations of pre-existing problems.  Although he presented a potentially persuasive case that he was injured as a result of the accident, the jury did not accept it. The respondent mounted an apparently successful, serious attack on the appellant’s case aimed extensively at his credibility.
[27]         I have reviewed the litany of medical evidence as canvassed by the parties.  A trier of fact could have concluded that the accident caused compensable injury to the appellant, but it certainly was open to the jury to conclude otherwise.  In my view, there was evidence on which the jury rationally could reach its verdict.  I do not think there is a basis in this case for this Court to interfere with the weight given by the jury to the evidence overall.
[28]         I would dismiss this appeal.

Facebook Photos Assist in Challenging Injury Claim

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In my continued efforts to track BC Caselaw addressing Facebook photos in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, highlighting the successful use of such photos in challenging an injury claim.
In last week’s case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle collision.  Liability was admitted by the defendant.  The Plaintiff advanced a claim alleging longstanding and disabling physical injuries.  The Defendant acknowledged some level of injury occurred but disputed the extent and severity of the claim.  Ultimately the Court rejected many of the Plaintiff’s advanced damages and in doing so provided the following comments addressing Facebook photos which were put into evidence:
 [107]     She was shown a Facebook photograph of her performing on stage and she says she does not recall what she was doing at the time…
[331]     …her Facebook photograph that shows her singing on stage in no apparent discomfort, and the evidence of Mr. Wall that he saw her singing and dancing on stage and jumping off the stage…
[369]     I find it persuasive that the plaintiff has been able to perform on stage with her band and twist her body as is shown in the photograph of her on stage. If her back is as badly injured as she says it is, I do not believe she would be able to perform as the photograph indicates.
[370]     In addition I accept the evidence of Mr. Wall that he saw her performing on stage with her band after the accident and she was dancing around on stage and in the crowd. When she came off the stage she sometimes put her hand on the stage and jumped off it, a distance estimated by him to be about four feet.

Video Surveillance Erodes Personal Injury Claim; $4,000 Assessment for Modest Soft Tissue Injury

Written by admin on . Posted in ICBC Privacy Issues, ICBC Soft Tissue Injury Cases.


Although video surveillance is not always a useful tool in personal injury litigation, it sometimes is used effectively.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, illustrating such evidence assisting in challenging a personal injury claim.
In last week’s case (Berenian v. Primus) the Plaintiff was involved in a 2006 collision when he was travelling on foot and struck by the Defendant’s vehicle.  Although liability was disputed the defendant was ultimately found 100% at fault for the collision.
The Plaintiff sought damages for soft tissue injuries which he says took 18 months to clear.  He further advanced a claim that the injuries “have impacted his routine… because of them, he was not able to run in the usual fashion and it was in fact some time later that he was able to get back to his pre-accident routine“.
The Defendant “robustly disputed” this allegation and produced video evidence of the Plaintiff jogging in the month following the collision.  Mr. Justice Williams concluded that the injuries sustained in the collision were “fairly minor” and assessed non-pecuniary damages at $4,000.  In rejecting the claims of long-standing consequences from the injuries the Court provided the following comments:
50]         As part of its examination of the circumstances, the defence retained an investigator to observe the activities of the plaintiff. That resulted in video recordings being made; those were tendered in evidence at this trial. Those recordings show the plaintiff, on three separate occasions, leaving his downtown place of business and travelling on foot to the area of his residence in West Vancouver.
[51]         The first of those recordings was made on May 4. It shows the plaintiff as he slowly jogged from his place of business to his residence. On the way, he stopped and did some moderate physical exercise including push-ups. The elapsed time from his departure from his place of work to his arrival at his home was approximately 70 minutes.
[52]         Another recording was made the day following, May 5. Again, it shows similar activity; the elapsed time was 70 minutes.
[53]         The third observation was conducted on May 11. Again, the plaintiff is shown essentially jogging from his place of work to his home. The additional exercise was done along the way in the same fashion.
[54]         At trial, the plaintiff was confronted with this evidence, as well as testimony he had provided in the course of an examination for discovery, at a time when he was unaware of the recordings having been made. At the examination, he stated under oath that he had eased into his running gradually following the motor vehicle accident and had started running the entire distance from his place of work to his home approximately five to six months after the motor vehicle accident. He said that, post-accident, the trip would take him in the order of two hours, which he said was about 45-60 minutes longer than it had taken prior to the injury. His evidence at the examination for discovery was that his time to make the trip, prior to the motor vehicle accident, was in the order of 60-70 minutes.
[55]         At trial his testimony was different. He said that before the motor vehicle accident, he had been able to do the run and the en route workout in 40 minutes.
[56]         Quite predictably, the apparent discrepancy between these activities and the manner in which the plaintiff had represented his injuries and their effects was the basis of some real dispute at trial…
[68]         I am concerned with the veracity of the plaintiff’s claims regarding the extent, severity and effects of the injuries he suffered. The principal basis upon which the claim rests is his testimony, his description. There is not any notable objective evidence to support his assertions of the quite extensive nature of the consequences…
[70]         In the final analysis, I have very serious doubts as to the truth and reliability of the plaintiff’s description of the extent of the injuries and their impact upon him. My conclusion is that there was some soft tissue injury – bruising and discomfort – but it was fairly minor in that he was able to resume his running within a month. In view of that finding, while I accept there may have been some lingering residual discomfort, it would be of a fairly modest magnitude.
[71]         Similarly, as for his claims that his neck pain continued for 12 to 18 months, that the headaches persisted for six to eight months, and his complaint of low back pain, I find that he has not proven on a balance of probabilities that such injuries resulted in discomfort such as he describes. On the evidence, it was substantially less.

Facebook Photos Found to be "Of Limited Usefulness" In Injury Claim

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Adding to this site’s archived posts addressing Facebook photos in BC personal injury lawsuits, reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding such photos to be ‘of limited usefulness‘ when assessing a chronic soft tissue injury claim.
In today’s case (Dakin v. Roth) the Plaintiff was injured in three collisions.  The Defendant unsuccessfully argued that the Plaintiff  “is not a credible witness”.  In support of this argument the Defendant introduced two years of photos taken from the Plaintiff’s Facebook profile.  In discussing the lack of impact of these photos Mr. Justice Cole provided the following reasons:
[55]         The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.
[56]         I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v. Narayan, 2012 BCSC 734 (at para. 30) in respect to Facebook photos:  “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.