Court Dismisses ICBC’S Application For Production Of Information From Social Media Profiles

Something I always advise my clients is to be careful about what you post on your Facebook and other social media profiles, as ICBC has a Special Investigations Unit (SIU) that will scour all of your online profiles in an effort to obtain information that may devalue your claim. Please click here for an article on this topic.

 

In Wilder v. Munro, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for damages. After the commencement of legal proceedings, ICBC’S lawyer filed a Fast Track notice.

 

The Plaintiff was an avid dancer. Prior to trial, ICBC’S lawyer brought an application for production of videos and documents from the Plaintiff’s social media accounts with respect to her engaging in dancing, with respect to her socializing, and with respect to her vacations.

 

Counsel for the Plaintiff opposed the application on the grounds that disclosure of such information would be overly broad, disproportionate to the issues to be heard at trial, invasive to the privacy of not only the Plaintiff but third parties as well, and would not be necessary for defence of the claim.

 

The Plaintiff had been examined at an Examination for Discovery about her social medial accounts in general terms, but not specifically with respect to the videos and photographs already in the possession of ICBC’S lawyer. Access to the Plaintiff’s social media profiles was curtailed after the Examination for Discovery when the Plaintiff changed her privacy settings.

 

The Court noted previous decisions which discussed the considerations to be taken into account on such applications, such as the probative value of the information sought, privacy issues, potential prejudice to the Plaintiff, and proportionality.

 

In dismissing the application, the Court focused on the probative value of the videos and photographs, noting that ICBC’S lawyer already had in his possession videos and photographs attesting to the Plaintiff’s physical abilities and social activities after the accident, and that further documentation would not be necessary in order to try to disprove the Plaintiff’s claims.

 

[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.

 

[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.

 

[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.

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