Tag: Vacation Photos

ICBC Request for Photos of Dancing, Vacationing and Socializing Dismissed

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dismissing a request for a Plaintiff to produce various photographs.
In today’s case (Wilder v. Munro) the Plaintiff was injured in a 2010 collision and sued for damages.  In the course of the lawsuit ICBC reviewed the Plaintiff’s social media accounts and obtained “ten separate videos of the plaintiff dancing in rehearsals or shows in 2013, 2014 and 2015, photographs of the plaintiff performing dance moves, Facebook status posts discussing upcoming dance shows and auditions in 2011, photographs and posts about Ms. Wilder’s attendance at music festivals in 2014, travel related to the home based business and socializing with friends.“.
The Defendant brought an application requesting that

The plaintiff, within 7 days, deliver an amended list of documents:

a. identifying the photographs and video in her possession and control in which she is featured, identifying them by location, date and time, if available:

1. participating in dance training, rehearsals, auditions or competitions from 29 July 2008 to present;

2. attending music festivals since 29 July 2010;

3. socializing between January 2011 and September 2012;

4. on vacation since 29 July 2010;

ii. The plaintiff may edit the photographs prior to disclosure to protect the privacy of other individuals;

In rejecting this request Master Bouck provided the following reasons:

[16]         A party’s obligation to disclose social media content has been addressed in a number of decisions under the Supreme Court Civil Rules, including Fric v. Gershman, 2012 BCSC 614; Cui v. Metcalfe, 2015 BCSC 1195; and Dosanjh v. Leblanc, 2011 BCSC 1660. Generally speaking, the considerations for the court on this type of application include the probative value of the information sought, privacy concerns, potential prejudice to the plaintiff and proportionality: Cui at para. 9.

[17]         All three of the noted cases were personal injury actions. In all three, the plaintiff’s post-accident physical capabilities were in issue as was the impact of alleged injuries on the particular plaintiff’s social life. In the first two cases, disclosure of the plaintiff’s social media content was ordered; in Dosanjh it was not. While the plaintiff’s circumstances as described in Cui bear some resemblance to the case at bar, the result can be distinguished. Like the case at bar, the defence had obtained photographs, postings, and the like from the plaintiff’s social media platforms. However, unlike here, the defence was unable to identify the dates of the photographs or videos and thus correlate the content to either the pre or post-accident period. The court ordered the plaintiff to disclose additional social media content and identify the date or time frame of content’s creation. Of note is that this additional disclosure may not have been ordered had Ms. Cui provided the dates of the videos, photographs pursuant to the defendants’ notice to admit: para. 33. Instead, the plaintiff declined to make any such admissions thus necessitating the chambers application.

[18]         In terms of the proportionality factors, the plaintiff’s claim is not complex. There is no debate that this action will proceed to trial under Rule 15-1. The defendants filed the fast track notice and the plaintiff has no intention of having the action removed from the rule’s operation. The parties appear to agree that the trial can be completed in three days. While the plaintiff’s damages are not limited to $100,000, the evidence on this application suggests that the claim will not greatly exceed that figure, if at all.

[19]         The plaintiff is employed with no limitations on her ability to function at that job. It will be up to the trial judge to decide what compensation, if any, Ms. Wilder deserves for an overall reduced earning capacity. However, the defendants’ submissions on this application presume that a career in dance is financially lucrative and thus the potential award for this capital asset loss justifies the breadth of the order sought. If this theory was reasonably accurate, it would be expected that one or both of the parties would wish to remove the proceeding from fast track.

[20]         On the question of probative value, the defendants already have in their possession dozens of photographs and more than ten videos which show the plaintiff’s physical abilities and social activities in the years following the accident. I am not persuaded that adding to this collection is necessary to disprove the plaintiff’s claims. Moreover, the defendants have other evidence in the form of Dr. Winston’s report to also disprove the plaintiff’s claim of a lost dancing career.

[21]         Finally, I agree with the plaintiff that the defendants have failed to demonstrate the probative value of any photographs or videos depicting the plaintiff socializing or on vacation. If I am wrong on the question of probative value, then I find that the production of this information, including all that would be entailed in protecting the privacy rights of third parties, is not proportionate to the issues to be determined at trial.

ICBC Denied Access to Plaintiff's Vacation Photos


Reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing an ICBC application to compel production of a Plaintiff’s vacation photos.
In the recent case (Dawn-Prince v. Elston) the Plaintiff was injured in a 2007 collision.  In the course of her lawsuit she was examined for discovery where she “testified that she had been on these vacations…(and) about her activities on the vacations“.
ICBC brought an application to have access to any photos taken of these holidays.  The Court dismissed this application finding that while canvassing the scope of a Plaintiff’s vacation activities is fair game at discovery production of photos is not required.  In dismissing the application Master McCallum provided the following reasons:
[3]  In the authorities to which I was referred, the court has on some occasions ordered production of photographs in similar circumstances where on vacation…
[4]  The difference in this case is that the plaintiff acknowledges that she engaged in the sporting and physical recreational activities, including the very ones that are referred to in the Fric decision; hiking, scuba diving, and so on.  The photographs that are requested have been reviewed by counsel or someone in cosunsel’s office, Marler, who swears in her affidavit that she reviewed 23 photographs in which the plaintiff was shown and says that they do not depict the plaintiff in strenuous physical activities; rather they depict her standing, sitting, or walking, by the pool, or on the beach…I am satisfied from that evidence that production of this evidence, which is clearly the second stage of documentary discovery contemplated by the Rules, is not appropriate.  These photographs, from the evidence on this application, will not assist the defendant in defending the claim.  The evidence of the plaintiff, of course, with respect tow hat she did on her vacations nay well assist, but the photographs neither contradict nor confirm that.  They show the plaintiff on the evidence in activities that are not inconsistent with anything other than standing, sitting, or walking, none of which she says she cannot do,..
[6]  The application for production of photographs…is dismissed.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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