Tag: privacy

Digital Vacation Photos and Metadata Production Ordered in ICBC Claim

Written by admin on July 5, 2011. 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.

Lawyer Ordered to Download His Own Client's Facebook Account Data In Injury Lawsuit

Written by admin on February 19, 2011. Posted in ICBC Privacy Issues, Uncategorized. 57 Comments on Lawyer Ordered to Download His Own Client's Facebook Account Data In Injury Lawsuit

Controversial reasons for judgement were recently released by the The Court of Queen’s Bench of New Brunswick. The Court required a Plaintiff in a personal injury lawsuit to preserve all contents on her Facebook homepage and have these produced. While requiring Social Medial Data production is not necessarily unique, the way the Court required this evidence to be preserved will cause concern for many.
In the recent case (Sparks v. Dube) the Plaintiff was injured in a motor vehicle collision in Fredericton in 2008. She hired a lawyer and sued for damages. In the course of the lawsuit the defence lawyer brought a motion, without notifying the plaintiff’s lawyer, requesting personal information from the Plaintiff’s Facebook account. The Court granted the motion and made the following contraversial orders:

1) A Preservation Order and, in the alternative, an Interlocutory Injunction are hereby made and issued compelling Erica Sparks: 1) to preserve and maintain without deletions or alterations the entire contents of her personal Webpage(s) on the social network Facebook including but not limited to photographs, text, links, postings, event details and video clips until further direction of the court, and 2) to participate in the carrying out of the following orders where her participation is required;

2) The Interlocutory Injunction shall expire ten days after these orders take effect instituted;

3) The Applicant-Defendant shall personally and immediately serve all orders and a copy of this judgment upon the Plaintiff’s solicitor, Mr. James Crocco who shall not disclose any of the orders set out herein nor the contents of this judgment except on terms as they are allowed by these orders;

4) Upon being served, Mr. James Crocco shall arrange for a solicitor in his firm or an agent lawyer of his choice to be appointed to carry out as soon as reasonably possible, and in the case of the Interlocutory Injunction within ten days of the taking effect of these orders, the orders set out that pertain to his client Erica Sparks subject to the following terms:

a) The appointed solicitor shall be remunerated by the Defendant for his or her services;

b) That solicitor shall immediately contact Ms. Sparks and, without disclosing the nature of the subject matter to be discussed, schedule a meeting with her at a location convenient to access and download data from the Internet and reduce it to usable form, such as hard copy for data so suited or memory stick or other such device for videos, as soon as reasonably practicable;

c) Upon personally meeting with Erica Sparks at the location chosen the appointed solicitor shall apprise her of the terms and conditions of the Preservation Order and Interlocutory Injunction as well as the other orders contained herein that pertain to her;

d) Immediately upon disclosure of the terms and conditions of the orders set out, Erica Sparks, in the presence of the solicitor engaged, shall create a permanent tangible records in hard copy, wherever possible, or to other suitable device, of the entire contents of her Webpage(s) on Facebook including, but not limited to, all photographs, text and links and shall record by a memory stick or other suitable device any videos posted or linked to Erica’s Sparks’ Webpage, one copy of which shall be sealed upon the carrying out of that part of these orders and delivered to Mr. James Crocco to be held and preserved by him until further direction of the court; but the delivering of a sealed copy of the entirety of her Webpage(s) shall not operate to preclude Erica Sparks from providing her counsel, Mr. James Crocco, or anyone else of her choosing with a copy of the entirety of her Webpage(s) in order to prepare for the Production Hearing or further proceedings;

5) Upon complying with the said orders the solicitor appointed to supervise the downloading of the material referred to herein shall immediately review all of the material downloaded to ensure that the orders have been carried out in full and shall then certify to the court in writing that there has been strict compliance with the orders contained herein, and that the sealed packet represents the entire contents of the Facebook Webpage(s) of Erica Sparks as well as videos posted or linked to it or them;

6) Upon the successful execution of the orders set out herein and the execution of the certification of strict compliance with the orders contained herein by the solicitor appointed to supervise the downloading of the material referred to herein Erica Sparks shall be free to resume unrestricted access to her Webpage(s) on Facebook including its substantive composition;

7) The Motion begun on December 9, 2011 shall be adjourned to a date to be fixed by the Clerk of the Court of Queen’s Bench for the Judicial District of Woodstock;

8) The Defendant shall then file with this court and serve on the Plaintiff, in timely fashion, a Notice of Motion for the production and disclosure of the contents of the sealed packet of information/data;

9) Once a date for a Production Hearing has been set Mr. James Crocco shall bring to that hearing the sealed packet of data retrieved from the Facebook Webpage(s) of Erica Sparks pursuant to the orders contained herein;

10) Upon completion of the execution of the orders contained herein, that apply to the retrieval of the entire contents of Erica Spark’s Facebook Webpage(s) on the terms as set out in these orders, the temporary oral sealing order sealing the entire file and court record in this matter that was imposed on December 9, 2010 at the conclusion of the ex partehearing shall be lifted without further order of the court.

11) The Plaintiff shall upon execution of these orders and the holding of a Production Hearing, in timely fashion, file a further and better Affidavit of Documents;

I understand that this order is being appealed and look forward to the New Brunswick Court of Appeal’s views on this matter. While there are cases requiring Plaintiffs to produce social media data in personal injury lawsuits in BC, I am not aware of any cases in this Province going as far as the above decision. Arguably the New BC Rules of Court focus on proportionality, narrower document disclosure obligations, and general prohibition of “fishing expeditions” in discovery of documents would prevent such an order from being granted in BC.

We Don't Need Your Consent! – ICBC Claims and Medical Reports

Written by admin on December 1, 2010. Posted in ICBC Privacy Issues, independent medical exams, Uncategorized. 112 Comments on We Don't Need Your Consent! – ICBC Claims and Medical Reports

If you’re involved in a BC motor vehicle collision and have your injuries treated by a “medical practitioner” ICBC can compel the medical practitioner to provide them with a report documenting your injuries. This is so even if you are not insured with ICBC and even if you don’t consent. Reasons for judgement were published this week on the BC Supreme Court’s website discussing this area of law.
In today’s case (Pearlman v. ICBC) the Plaintiff was involved in collision in 2004. He was insured with a carrier from Washington State. The other motorist was insured with ICBC. The Plaintiff initially contacted ICBC and signed an authorization permitting ICBC to obtain medical information relating to his injuries. About a year later the Plaintiff hired a lawyer and cancelled the authorization. Despite this ICBC contacted a physician who treated the Plaintiff after the accident (Dr. Lubin) and requested “a narrative medical report“.
Ultimately the Plaintiff’s lawsuit against the other motorist was dismissed at trial. The Plaintiff then sued Dr. Lubin arguing that the physician breached the Plaintiff’s confidence by providing ICBC a medical report when the Plaintiff withdrew his consent for ICBC to obtain his medical information. The Plaintiff also sued ICBC directly arguing that ICBC improperly requested the medico-legal report. Both of these lawsuits were dismissed with the BC Supreme Court finding that whether or not ICBC has written authority, section 28 of the Insurance (Vehicle) Act permits ICBC to obtain reports from treating medical practitioners and that practitioners have “no legal choice” other than to comply with such requests.
In the claim against Dr. Lubin Madam Justice Morrison stated as follows about the mandatory nature of section 28 of the Insurance (Vehicle) Act:
[] Dr. Lubin was obligated to provide ICBC with the report as requested. Dr. Lubin had no legal choice other than to comply with the mandatory request to submit a medical legal report to ICBC. This did not amount to a breach of confidentiality as alleged by the plaintiff.
In the claim against ICBC Mr. Justice Smith found that it would be an ‘abuse of process‘ to permit the Jury in that action to make findings contrary to Madam Justice Morrison’s previous decision. Mr. Justice Smith held as follows:

[14] The plaintiff also sued Dr. Lubin, alleging a number of causes of action, including negligence and breach of confidence. That action went to trial before Madam Justice Morrison and was dismissed in reasons for judgment dated March 11, 2009. Madam Justice Morrison held that when ICBC requested the report, Dr. Lubin was obliged to provide it. She found that obligation arose out of s. 28 of the Insurance (Vehicle) Act, which reads:

If any of the following persons attends to, diagnoses, treats or is consulted by a person injured in a motor vehicle accident in British Columbia, he or she must, whenever the corporation requests, provide the corporation, as soon as reasonably practicable, with a report of the injuries and their diagnosis and treatment and a prognosis, in the form the corporation prescribes …

The persons then listed include a medical practitioner….

[20] Madam Justice Morrison’s findings regarding Dr. Lubin’s conduct were made on the same or very similar evidence that is before the Court in this case, and I conclude it would indeed be an abuse of process to invite this jury to make contrary findings.

The Plaintiff appealed Madam Justice Morrison’s decision. In the course of the Appeal the Plaintiff was ordered to post security for costs in the event he lost the appeal. In reviewing this decision the BC Court of Appeal made the following comments on the matter of ICBC ordering reports not in the ‘prescribed form‘:

[19] Even if Mr. Pearlman were to succeed in his argument that the judge erred in finding that Dr. Lubin was required to provide the report under statute – I note, in that regard, that the report was not prepared in form CL 19, which is ICBC’s prescribed form under s. 28 of theInsurance (Vehicle) Act) – it is difficult to see how his appeal could succeed given the trial judge’s clear finding that Dr. Lubin did not cause him any loss.

These decisions illustrate ICBC’s power to get medical reports even absent patient consent. It can be argued that the Court of Appeal’s comments can leave individuals with little recourse if ICBC goes further than ordering a CL-19 and in fact obtains a full medico-legal report. A solution, at least insofar as tort claims are concerned, is for plaintiffs to bring this power to the Courts attention when ICBC insured defendants try to obtain independent medical exams in order to ‘level the playing field‘ under the BC Supreme Court Rules.

More on Privacy Rights, Compelled Disclosure and the Implied Undertaking of Confidentiality

Written by admin on May 11, 2010. Posted in Civil Procedure, Uncategorized.

Further to my previous posts on this topic, when people sue (or are sued) in the BC Supreme Court the Rules force disclosure of certain facts and documents. To balance the parties privacy interests the Courts have developed an “implied undertaking of confidentiality” which is basically a judge made rule that “requires a party to civil litigation to keep confidential all information disclosed by adverse parties in the litigation under the compulsion of discovery procedures. The receiving party is only to use the disclosed information in the litigation in which it was produced”
The implied undertaking can be lifted by an order of the Court or by consent of the party that disclosed the information. Another way the implied undertaking can come to an end is if the case goes to “open court”. The question is when is the open court exception triggered. As most lawyers know most cases don’t go to trial but it is common to have pre-trial applications held in open court. In such a case is the exception triggered? Reasons for judgement were released today dealing with this novel issue.
In today’s case (Bodnar v. The Cash Store inc.) the Plaintiff’s were involved in a lawsuit. During the course of that claim a pre-trial motion was brought which relied, in part, on documents produced by the Defendant by the compulsion of the forced disclosure under the Rules of Court. The case ultimately settled and a different class of Plaintiff’s brought a “virtually identical” lawsuit.
The Plaintiff’s wished to use the materials obtained in the first lawsuit in the second claim. The Defendant’s would not consent arguing that the implied undertaking of confidentiality prohibited this use. The Court was asked whether having the documents used in a pre-trial chambers application triggered the open court exception. Madam Justice Griffin provided the following useful analysis:

[45] I conclude that a proper balancing of the public interest involved in the implied undertaking rule and in the open court principle, in respect of information filed in court as part of an interim application, can best be achieved by applying the following principles:

(a) the implied undertaking does not end when information, produced by an adverse party under compulsion of discovery (the “Producing Party”), is filed in court by the receiving party (the “Receiving Party”) in support of an interim application;

(b) in considering a Receiving Party’s application for leave to be relieved from the implied undertaking, the court may consider, as one factor in support of leave, the fact that the information was filed in court for a legitimate purpose and became part of the court record; and

(c) the implied undertaking of a Receiving Party ends, with respect to information produced by the Producing Party, when that information is filed in court by the Producing Party itself.

[46] The above principles would seek to avoid the mischief of a party with ulterior motives filing the adverse party’s information in court simply to get around the implied undertaking. Upholding the implied undertaking and placing the onus on the Receiving Party to seek the court’s leave before using the information for another purpose, would encourage parties to fulfill their discovery obligations knowing that the implied undertaking cannot easily be avoided. At the same time, the fact that the documents are now part of the court record, available to all other persons, will be one important factor to be considered by the court on a Receiving Party’s subsequent application for leave to use the documents for other purposes.

[47] It makes sense however, that the implied undertaking is lost when the Producing Party files its own information in open court. There can be no concern about abuse of process or a deliberate attempt to circumvent the implied undertaking rule in such a situation, given that the Producing Party is not under any undertaking with respect to its own information and was not compelled to produce it in court.

The Court went on to hold that, despite the implied undertaking not coming to an end by virtue of the documents use in court, it would be appropriate to permit the Plaintiff’s to use the information in the subsequent lawsuit. This case is worth reviewing in full for anyone interested in the developing principles of privacy law in BC as the judgement contains a lengthy discussion of the principles at play and the relevant precedents addressing the “implied undertaking of confidentiality”.

Privacy Rights – Personal Injury Claims and Your Computer Hard Drive

Written by admin on March 19, 2010. Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 56 Comments on Privacy Rights – Personal Injury Claims and Your Computer Hard Drive

A developing area of law is electronic discovery.
In the personal injury context the BC Supreme Court Rules require relevant, non privileged documents to be disclosed to opposing counsel. The definition of document includes “any information recorded or stored by any means of any device“. So, if there is relevant information, be it printed, on a computer or even on a cell phone, discovery needs to be made in compliance with the Rules of Court.
In recent years electronic documents have been the subject of court applications and Insurance companies / Defendants have sometimes been successful in gaining access to a Plaintiff computer’s hard drive. Reasons for judgement were released today by the Supreme Court of Canada discussing court orders for the seizure of computer hard drives.
Today’s case (R v. Morelli) dealt with a criminal law matter. However the Canadian High Court’s reasons may be of some use in the personal injury context.
By way of background the Defendant was charged with a criminal code offence. One of the reasons for the charges was evidence that was apparently obtained from the Defendant’s computer which was seized pursuant to a search warrant.
The Defendant was convicted at trial. The Supreme Court of Canada, in a very close split decision (4-3) overturned the conviction on the basis that the search warrant never should have been ordered because there were no reasonable and probable grounds to issue it.
While this case strictly dealt with criminal search warrants and the necessary evidence to obtain one, the Canadian High Court made some very strong comments about the intrusive effects of computer searches and this reasoning very well may have persuasive value for Courts considering whether they should give insurance companies access to Plaintiffs computers. Specifically the Supreme Court of Canada provided the following comments:

[1] This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure. And it relates, more particularly, to the search and seizure of personal computers.

[2] It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.

3] First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

[4] That is precisely the kind of search that was authorized in this case. And it was authorized on the strength of an Information to Obtain a Search Warrant (“ITO”) that was carelessly drafted, materially misleading, and factually incomplete. The ITO invoked an unsupported stereotype of an ill-defined “type of offender” and imputed that stereotype to the appellant. In addition, it presented a distorted portrait of the appellant and of his surroundings and conduct in his own home at the relevant time…

[105] As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer. Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. ..

[111] The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

When considering whether a Defendant should be allowed access to a Plaintiff’s computer in a personal injury lawsuit I should point out that the New BC Supreme Court Civil Rules will change the scope of documents that need to be disclosed. Specifically, the test for what documents are discoverable will be altered.

Under the current system parties must disclose documents “relating to every matter in question in the action“. Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.

This new test is supposed to be narrower in scope than the current one. Time will tell how this new test will change disclosure requirements in the prosecution of personal injury actions however, given the fact that this new test will be applied alongside principles of proportionality there very well may be narrower disclosure requirements in smaller personal injury claims and greater obligations in the prosecution of more serious claims.
I will continue to write about this area of British Columbia personal injury law as it develops in the coming months.

BC Injury Claims and Document Disclosure – Can a Court Order a Plaintiff to "Consent"?

Written by admin on March 9, 2010. Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 51 Comments on BC Injury Claims and Document Disclosure – Can a Court Order a Plaintiff to "Consent"?

Important reasons for judgement came to my attention today dealing with discovery of documents in BC Injury Litigation.
The BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control. Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents. (For example medical records documenting accident related injuries.) Such records are commonly referred to as “Third Party Records”.
When a Defendant requests Third Party Records Plaintiff’s often consent, obtain the documents, and then exchange a copy of the relevant records. When the parties don’t consent a Court Motion can be brought.
With this background in mind today’s case dealt with an important topic; when a motion for Third Party Records is brought can the Court order that the Plaintiff sign authorizations to allow the Defendant to get the records directly? Mr. Justice Hinkson held that such a shortcut is not allowed under the Rules of Court.
In today’s case (Stead v. Brown) the Defendant “brought an application to require the plaintiff to execute consent forms for the production of the records of some ten doctors, three hospitals, two groups of physiotherapists, WorkSafeBC, the Ministry of Housing, and Service Canada“.
The Plaintiff opposed the application on the basis that the Court lacked the power to make such an order. Mr. Justice Hinkson agreed and held that even if the requests were relevant a Court could not compel disclosure in this fashion, instead the Defendant would have to follow the procedure set out in Rule 26(11) of the BC Supreme Court Rules.
In reaching this conclusion Mr. Justice Hinkson was referred to the BC Court of Appeal decision Peel Financial Holdings Ltd. v. Western Delta Lands where the BC High Court held that “The Supreme Court judge cited no authority fo rhis power to compel a party to consent, and no authority for such a power was provided to us. As I jhave said, a consent given pursuant to an order is a contradiciton in terms“.
Mr. Justice Hinkson went on to find that while there was another case (Lewis v. Frye) which held that a Supreme Court judge could compel a party to sign an authorization, that decision was wrong. Specifically Mr. Justice Hinkson held as follows:
Regrettably the decision of the Court of Appeal in Peel Financial Holdings Ltd. was not considered which Hood J. and I am persuaded that the binding nature of that authority if considered would have altered the conclusion reached by him had the authority been brought to his attention.
I conclude that the plaintiff in this case cannot be ordered to execute authorizations for the release of records in the (hands) of third parties. The mechanism that must be pursued in order to obtain the hospital and doctors’ records is pursuant to Rule 26(11) of the Rules of Court.
This decision is important because it clarifies the procedures that must be used when Defendants in Injury Lawsuits wish to obtain the records in the hands of Third Parties and the Plaintiff does not consent. Time will tell whether the New Rules of Court which soon come into force will effect this reasoning.

Leave For Appeal Denied in Computer Hard-drive Disclosure Case

Written by admin on December 8, 2009. Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 61 Comments on Leave For Appeal Denied in Computer Hard-drive Disclosure Case

In April of this year the BC Supreme Court ordered that a Plaintiff involved in a Brain Injury Claim from a BC Car Crash “produce for inspection by an independent expert a duplicate copy of his computer hard-drive and that the expert prepare a report identifying the number, nature, and time for all files relating to the use of the plaintiff’s Facebook account between the hours of 11:00 p.m. and 5:00 a.m., dating from July 23, 2005 to the present.” (Click here to read my post summarizing the trial decision).
The Defendant in this case sought greater disclosure including “production of information (from the Plaintiff’s computer hard drive) regarding the number, nature and time of the information files that related to the Plaintiff’s Hotmail account and all other computer activity occurring between the hours of 11:00 pm and 5:00 am.” This application was dismissed by the Chambers Judge.
The Defendant asked the BC Court of Appeal permission to appeal this order arguing that such information would have been relevant in assessing the Plaintiff’s brain injury claim and that the Judge failed to turn his mind to the application properly.
The Court of Appeal refused to hear the appeal holding that the sought order was not supported by the evidence, specifically the Court of Appeal held as follows:

[22] At the plaintiff’s examination for discovery, he testified that he communicated with a friend on Facebook at night. He also testified that he does have a Hotmail account but he had not “checked it forever”. His mother testified that if anyone used the computer after 11:00 p.m. on weekdays, it would be the plaintiff (as opposed to other family members), and that he would probably be on the computer most nights.

[23] In the psychiatric assessment dated March 10, 2008, the plaintiff had apparently reported to his psychiatrist as follows:

[H]is sleep varies with the time one of his friends goes to bed. This is because he spends a lot of time on Facebook chatting with this friend.

[24] I conclude that this appeal is prima facie without merit. It is true that the chambers judge did not explain his reasons for dismissing that part of the application that is the subject of the appeal, but having reviewed the evidence that was before the chamber judge, it does not appear to me there was an evidentiary foundation for the request for the electronic records of his computer usage beyond Facebook. Any other usage, such as was suggested in the argument before me (that the plaintiff may be using gaming websites or other such websites late into the night), appears to be somewhat speculative.

[25] I dismiss the application for leave to appeal.

You can read the full judgement by clicking here (Bishop v. Minichiello)

Unfortunately the Court of Appeal did not highlight any factors which will be of use in considering when applications for computer hard drives will be meritorious in personal injury claims. With more and more information being stored on computers these days, however, such applications will become more frequent and it will only be a matter of time before the Court of Appeal has a chance to weigh in on this important issue.

More on Facebook and BC Injury Claims

Written by admin on September 28, 2009. Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Further to my previous posts on the subject, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, showing that the use of Facebook photos by Defence Lawyers is a trend that is becoming well entrenched in ICBC and other BC Injury Claims.
In today’s case (Mayenburg v. Yu) the Plaintiff was injured in a 2006 BC Car Crash. Liability (fault) for the crash was admitted by the Defendant. The Plaintiff’s non-pecuniary damages were valued at $50,000. In arriving at this figure Mr. Justice Myers accepted the evidence of Dr. Apel, an expert in physical and rehabilitation medicine. Dr. Apel opined that the accident caused a soft tissue injury to the Plaintiff’s upper trapezius muscles described as a “myofascial pain of mild severity“. Additionally the Plaintiff was found to have “myofascial chronic regional pain syndrome of the gluteus medius” and “mechanical back pain“.
The court accepted that the Plaintiff’s injuries were likely permanent, specifically noting that her “prognosis for complete symptom resolution is guarded“.
At trial the Defence Lawyer challenged the credibility of the Plaintiff and to this end tried to introduce 273 photos from the Plaintiff’s Facebook wall.
Mr. Justice Myers noted that “the bulk of these photos showed no more than (the Plaintiff) enjoying herself with her friends“. He ruled that over 200 of these photos were inadmissible only permitting the photos that showed the plaintiff “doing a specific activity which she said she had difficulty performing”, he did not let the other photos in because they “had no probative value“.
Mr. Justice Myers did not agree with the Defendant’s challenges to the Plaintiff’s credibility noting that the admissible photos did not contradict the Plaintiff’s evidence, specifically he stated as follows:

[40] This left a subset of approximately 69 photographs. These showed Ms. Mayenburg doing things such as hiking, dancing, or bending. However, even these photos do not serve to undercut Ms. Mayenburg’s credibility, because she did not say that she could not do these activities or did not enjoy them. Rather, she said she would feel the consequences afterwards.

[41] In effect, the defendants sought to set up a straw person who said that she could not enjoy life at all subsequent to the accident. That was not the evidence of Ms. Mayenburg.

[42] As indicated above, I accept the conclusions of Dr. Apel. That said, Ms. Mayenburg’s injuries have had minimal effect on her lifestyle or her ability to carry on with the activities that she enjoyed beforehand. Her damages must be assessed on that basis.

[43] In terms of the facts relevant to assessing non-pecuniary damages (as opposed to loss of capacity) this case is remarkably similar to Henri v. Seo, 2009 BCSC 76, in which Boyd J. awarded the plaintiff $50,000. I find that to be a suitable award in this case.

The Defence also tried to minimize the extent of the Plaintiff’s injuries by pointing out that there was a “limited number of times she visited physicians to complain about her pain” Mr. Justice Myers quickly disposed of this argument noting

[37] I do not accept those submissions, which have been made and rejected in several other cases: see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63. Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation. Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time. Dr. Ducholke testified how her time with patients was limited.

[38] In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.

Lastly, this case is also worth reviewing as it contains a useful discussion of ‘rebuttal’ expert medical evidence at paragraphs 29-35.