Skip to main content

Tag: Metadata

BC Court Orders Production of Private Facebook Photos in ICBC Claim

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the production of private social media data in the context of a personal injury claim.
In today’s case (Fric v. Gershman) the Plaintiff sued for damages for injuries sustained in a 2008 collision.  The Plaintiff apparently suffered from “chronic severe headaches and soft-tissue injuries” following the crash.  The Plaintiff, who was a first year law school student at the time of the crash, plead damages for various losses including diminished earning capacity.
ICBC sought production of the Plaintiff’s entire Facebook profile, vacation photos and metadata related to digital photos in her possession.  Master Bouck held that while some of this relief was too broad, relevant photos need to be disclosed and ordered production accordingly.  In doing so the Court provided the following reasons:

[54] After considering all of these authorities, I have concluded that some of the plaintiff’s photographs, including those held on the private Facebook profile, ought to be disclosed.

[55] The pleadings define the issues between the parties. Here, there is also evidence on which the court can exercise its discretion to allow for broader document discovery under Rule 7-1(14).

[56] In her pleadings, the plaintiff alleges that the accident led to not only loss of amenities of life, but also loss of mobility and diminished earning capacity.

[57] The diminished capacity is said to be the result of pain and fatigue. Ms. Fric claims that the injuries effected her academic achievements and thus ability to secure employment after her second year of law school. The ongoing symptoms continue to impact Ms. Fric’s working capacity.

[58] How this diminished capacity is measured is yet to be determined. However, the defence fairly argues that a damage award for a young professional’s diminished earning capacity can be very significant. Although plaintiff’s counsel downplays this aspect of the claim, there is no suggestion that the plea is to be withdrawn.

[59] Ms. Fric has also testified that the accident-related injuries have negatively impacted her social life and ability to perform certain sports or recreational activities, either pain-free or at all. While Ms. Fric has remained an active individual, the symptoms from the accident-related injuries are allegedly unresolved. Obviously, the ongoing complaints will influence the award claimed for pain and suffering.

[60] Photographs which show the plaintiff engaging in a sporting or physical recreational activity — from hiking to scuba diving to curling to dancing — are relevant in discovering the plaintiff’s physical capacity since the accident.

[61] I do not agree with the plaintiff’s submission that such information is only relevant when there is a claim or evidence of total disability.

[62] In terms of proportionality and ensuring a fair trial on the merits, the defence should be given an opportunity to discover the plaintiff on all aspects of her physical functioning and activity level since the accident.

[63] Allowing such discovery does not preclude the plaintiff from arguing that some of the produced photographs are inadmissible at trial. The trial judge may accept that the prejudicial effect of a particular photograph outweighs any probative value.

[64] Nonetheless, the order sought by the defendants is too broad…

[70] In my view, the appropriate relief is to order Ms. Fric to produce an amended list of documents which identifies the photographs and video in her possession and control in which in which she is featured:

1.  participating in the December 2008 Law Games; and

2.  on a vacation taken since November 18, 2008.

[71] The photographs should be identified by location, date and time (if this information is available to the plaintiff). The defence may then choose to either inspect the photographs (electronically or otherwise) and/or pay for the photographs’ duplication.

[72] Before disclosure, the plaintiff may edit the photographs to protect the privacy of other individuals appearing in those photographs…

[75] The plaintiff is not obliged to include commentary from the Facebook web?site. If such commentary exists, the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties: Dosanjh v. Leblanc.

[76] Costs of the application will be to the defendants in the cause.

Digital Vacation Photos and Metadata Production Ordered in ICBC Claim

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized. 2 Comments on Digital Vacation Photos and Metadata Production Ordered in ICBC Claim


Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, ordering production of a Plaintiff’s vacation photos in an ICBC injury lawsuit.
In today’s claim (Abougoush v. Sauve) the Plaintiff was injured in a 2007 motor vehicle collision.  She alleged that her injuries disabled her for a period following this collision.  During this period she travelled to Las Vegas, Palm Springs and the Caribbean.   Photos were taken during these trips.
ICBC asked for the photos to be produced.  The Plaintiff opposed arguing that any probative value in the photos was outweighed by Privacy concerns.  Mr. Justice Rogers reviewed the photos and ultimately ordered them disclosed.  The Court noted some difficulty reconciling the activities depicted in the photos with the “Plaintiff’s perception of what is a physical activity” based on her affidavit evidence.  In ordering production of the digital photos and metadata Mr. Justice Rogers provided the following reasons:


[7] The photographs in question depict the plaintiff in various indoor and outdoor tropical settings. The plaintiff is depicted engaging in various activities including swimming, walking on a beach, going on a catamaran power boat, and visiting the Grand Canyon. The photographs clearly establish that the plaintiff did not spend the majority of her time curled up in her parent’s motorhome or resting poolside in a chaise lounge.

[8] I have referred to the pleadings, of course, in order to determine what matters are in question, but I have also referred to the plaintiff’s Affidavit #1, particularly the extracts set out above. The pleadings establish that the nature and extent of the plaintiff’s physical injuries, their effect on her enjoyment of life and their effect on her ability to participate in physical activity are matters in question. The photographs, when they are compared to the plaintiff’s affidavit evidence, are clearly relevant to the plaintiff’s perception of what is a physical activity. They are also relevant to the plaintiff’s tolerance for physical activity over a several week period.

[9] The photographs do not show the plaintiff in embarrassing or socially unacceptable situations. There is nothing about the photographs that would prevent their owner from, for example, posting them on a social networking site such as Facebook. I do not consider that the plaintiff’s demeanour or comportment in any of the photographs in the binder is such that they must be withheld from the defendants in order to preserve her privacy.

[10] In my opinion, the plaintiff’s pleadings and her affidavit evidence make the entire photographic record of her trips to Las Vegas and Palm Springs, and to the Caribbean, relevant to matters in question in this suit. All of the photographs in the binder provided to me must, therefore, be produced to the defendants.

[11] From what I can see of the camera that the plaintiff used to take many of these photographs (the camera can be seen in the reflection off the plaintiff’s sunglasses in some of her self-portraits), I believe it was a digital device. Digital cameras typically record the time and date when the photograph was taken. Some cameras capture the camera’s GPS co-ordinates as well. These data are known as metadata. These data are relevant to a matter in issue in this lawsuit because they may provide information from which the camera user’s tolerance for physical activity from day to day or over several days may be inferred. More particularly, the metadata may be relevant to the plaintiff’s ability to, for example, be active throughout a given day and then go walking on the beach in the evening, or it may be relevant to the plaintiff’s ability to spend an evening at a nightclub until some given hour, and then tolerate swimming the next morning. For that reason, the metadata associated with these photographs must also be produced to the defendants. That discovery may be accomplished by providing the defendants with digital copies of the photographs with the metadata preserved intact in those copies.