Tag Archives: evidence

Facebook Evidence Causes Damage to Personal Injury Claims

Written by: John McLeish and Lindsay Charles

Posting photographs, documents, and information on Facebook, Instagram, and Twitter can only cause harm to an individual involved with a personal injury case. Why?  Photos can be taken out of context. Information can be overly optimistic about an injured person’s condition. Both photos and information posted on Facebook only tell a small part of the story. They usually convey an inaccurate picture of the injured person’s ability to function.

Insurance defence lawyers want to see the photos and information.  Requests for the photos and information are now part of standard requests of most defence lawyers on examinations for discovery.

Here  is a series of questions that the insurance defence lawyer may ask the Plaintiff at his examination for discovery to establish that there is relevant information on the injured person’s social media web pages.

  • Are you on Facebook?
  • Do you have any other social media sites or avenues?
  • On those social media sites, do you tell people what you are doing, or make comments about your life?
  • Do you post photographs of what you are doing?
  • Have you posted any photographs on Facebook, Instagram or Twitter in the last two to three years?
  • In that time frame have you posted photographs of what you are doing, where you are doing it, and your social activities?
  • When you tweet and are on Facebook, do you talk about your jobs, and your work, and school?

If the Plaintiff has answered ‘yes’ to the majority of these questions, the defence lawyer will ask to produce the entries that deal with the Plaintiff’s job, school, social activities, and how he spends his time.

If Plaintiff’s counsel refuses, defence counsel will bring a motion to compel production of the photos and documents. Plaintiff’s lawyers need to know how to handle the motion.

The Plaintiff’s lawyers should not automatically produce the Plaintiff’s entire Facebook page for these reasons.

  • A motion brought under Rule 06 requires evidence, as opposed to speculation, that potentially undisclosed information exists[1].
  • The mere existence of a Facebook profile does not entitle a party to gain access to all material on the site. Some materials may be relevant to the litigation and some materials may not be.[2]
  • The onus is on the defendant to demonstrate that the Plaintiff has relevant materials on a Facebook page before the Court can order that the materials be disclosed.[3]
  • The examination for discovery is the opportunity for the defendants to determine the relevance of the contents of a Plaintiff’s Facebook account.[4]
  • The Courts have generally looked at the party’s public Facebook profile to determine if relevant material exists in the private portion. In cases where a party had posted relevant photographs on a publicly-accessible Facebook profile showing that the party engaged in physical activities, the Courts have deemed it reasonable to infer that similar photographs exist on the private portion of the account.[5]
  • There may be relevance to the Plaintiff’s private photographs that did show her engaged in some physical activity. However, if Plaintiff’s counsel reviews the photographs and there are no photographs of that nature, the photographs do not have any real relevance to the issue in the action and should not be produced.[6]

Based on the Garacci v Ross decision, if the defence lawyer brings a motion for the production of social media evidence, the Plaintiff’s counsel should prepare an Affidavit summarizing what each photograph depicts on their Facebook profile. If the matter continues to the motion, Plaintiff’s counsel should then present the Affidavit and a sealed envelope with the Facebook photographs for the Judge or Master to determine the relevance of the posts.

Even when an injured person is being totally honest, posting Facebook photos at his or her best time can be very misleading and can give a Judge or Jury the wrong impression.

Once a photograph or post is published to a social media site, the Plaintiff’s lawyer can never tell the injured person to remove the photograph or post. It is much wiser for Plaintiff’s counsel, upon been retained, to tell the injured person to not post any photographs or information to any social media website.

[1] Leduc v Roman, 2009 DLR (4th) 353 at para 14, 2009 CarswellOnt 843 (WL Canada), (ON SCJ) Brown J.

[2] Leduc v Roman, 2009 DLR (4th) 353 at para 33, 2009 CarswellOnt 843 (WL Canada), (ON SCJ) Brown J; Schuster v Royal & Sun Alliance Insurance Co of Canada, 120091 78 CCL1 (4th) 216 at para 33, 2009 CarswellOnt 6586 (WL Canada), (ON SCJ) Price J.

[3] Leduc v Roman, 2009 DLR (4th) 353 at para 15, 2009 CarswellOnt 843 (WI.. Canada), (ON SCJ) Brown J; Schuster v Royal & Sun Alliance Insurance Co of Canada, 120091 78 CCL1 (4th) 216 at para 34, 2009 CarswellOnt 6586 (WL Canada), (ON SCJ) Price J.

[4] Schuster v Royal & Sun Alliance Insurance Co of Canada, [2009] 78 CCLI (4th) 216 at paras 40, 41, 43, 2009 CarswellOnt 6586 (WL Canada), (ON SCJ) Price J.

[5] Stewart v. Kempster, 2012 ONSC 7236 at paras 16, 17 CPC (7th) 188, Heeney RSJ; Schuster v Royal & Sun Alliance Insurance Co of Canada, (2009] 78 CCLI (4th) 216 at para 37, 2009 CarswellOnt 6586 (WL Canada), (ON SCJ) Price J.

[6] Garacci v Ross, 2013 ONSC 5627 at para 7, 232 ACWS (3d) 341, Master RA Muir

Judge Overrules Jury Verdict: Court of Appeal Upholds Judge’s Decision

It is extremely rare for a judge in Ontario to overrule the decision of a jury.

However, that is precisely what happened in the recent case of Salter v. Hirst.  Recently, the Court of Appeal upheld the trial judge’s decision and set out strict requirements for proving causation in medical negligence cases.

In the Salter case, George Salter came to the hospital with severe abdominal pain.  Over the course of 3 days in hospital, Salter began vomiting and passing blood.  Finally, he began to lose feeling in his lower extremities.  Dr. Jason Hirst was the doctor responsible for Salter’s care in hospital.   After three days in hospital, Dr. Hirst had Salter transferred to another hospital for more investigation.  At the second hospital, Salter underwent emergency surgery that left his legs paralyzed.

Salter sued Dr. Hirst for negligence.  He alleged that Dr. Hirst’s failure to transfer him sooner was negligent and that, if he had been transferred sooner, he would have recovered the use of his legs.

After a long trial, the jury found that Dr. Jason Hirst was negligent for failing to transfer George Salter sooner as Salter alleged.  The jury also found that Dr. Hirst’s negligence caused Hirst’s paralysis.

Dr. Hirst asked the trial judge to overrule the jury’s decision. Continue reading

Fight Continues for Access to Benefits for Severely Injured Accident Victims

The Ontario government is completing a review on what constitutes a “catastrophic impairment” when a person is injured in a car accident.  The definition is critical: a person who has suffered a catastrophic impairment is entitled to access much greater levels of benefits for care and treatment.  This is not akin to a lottery ticket.  A catastrophically injured person must still prove that the benefits are reasonable and necessary.  All the definition does is raise the ceiling so that the most seriously injured accident victims may gain access to the treatment and care that they legitimately need.  Last week, an expert medical panel completed a review of the definition of catastrophic impairment.  The recommendations are based on a technical review.  In yesterday’s Toronto Star, Dale Orlando wrote an article urging the Ontario government to consider not just rigid technical definitions but also to consider the real needs of severely injured individuals.

The text of the article is reproduced below:

‘Catastrophic impairment’: What’s at stake

Published On Sun Apr 17 2011

Dale Orlando
President of the Ontario Trial Lawyers Association

“If any changes are to be made to this definition of injury, the government should ensure that everyone who needs the additional level of coverage has access to it. It is important to remember that, just because someone is deemed to be catastrophically impaired, that does not confer an automatic right to benefits. They must demonstrate need on an ongoing basis in order to receive benefits from their insurer.”

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