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.

If you have been injured in a motor vehicle accident, there is a good chance that ICBC will go to social networking sites like Facebook, MySpace, and Twitter, in an effort to gather information on you in order to undermine your credibility. For example, they will look for photos of you doing something you claimed you could not do, they may look for evidence that you were able to take vacations at a time when you said you were seriously injured, or they may look for written information on your wall made by you or your Facebook friends. As a personal injury claimant in an ICBC claim, you should be leery of what you post on your Facebook profile, for fear that it may be construed improperly, and taken out of context.

 

In Tambosso v. Holmes, the Plaintiff was injured in two motor vehicle collisions, and subsequently brought ICBC claims for many types of damages, including pain and suffering, income loss, diminished earning capacity, and future care. The Plaintiff alleged a variety of physical and psychological injuries that had a severely detrimental effect on his life. Unfortunately, the Plaintiff was not that private about the information and photos about himself that he posted on Facebook, which severely affected his credibility in the eyes of the judge, as the evidence presented at trial by the Plaintiff and his experts was largely contradicted by the Facebook postings. This led to an award for much less than the Plaintiff had claimed for.

 

[171] One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular. All of the posts were included in Ex. 1, Tab 1.

 

[174] I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet”.

In Raikou v. Spencer, the Plaintiff was injured in a t-bone collision, and subsequently brought an ICBC claim for her injuries. Liability was admitted by the Defendant. The Plaintiff claimed damages for pain and suffering, income loss, out of pocket expenses, diminished earning capacity, and future care. The Plaintiff‘s injuries continued by the time of trial, approximately two and a half years after the accident. Although the Plaintiff was successful at trial for the most part, a Facebook comment she made on her profile did affect her credibility somewhat in the Court’s view.

 

[53] Before turning to that issue, I should note that while I found Ms. Raikou generally to be a credible witness, in my view she had a tendency to overstate or exaggerate her condition somewhat. This is particularly so in her description of her pain as being constant and unremitting.

[54] By way of example, Ms. Raikou travelled to Greece in July and August of 2011. When she returned, she posted the following entry on her Facebook page on August 20, 2011:

From the airport to Eleni’s and Nick’s wedding. Missed the ceremony but made it to the reception. From the airport home to change and off to the reception. Made it through and had an awesome time. 48 hours without sleep, jet lagged and still partying.

[55] I agree with counsel for Ms. Raikou that caution must be applied when considering the relevance and import of Facebook entries in that they are but a mere “snapshot in time” and do not necessarily shed light on a person’s overall condition or ongoing complaints: see Guthrie v. Narayn, 2012 BCSC 734 at para. 30.

[56] Nonetheless, this particular snapshot is inconsistent with Ms. Raikou’s testimony that her pain condition is continuous and unrelenting and that it has effectively precluded her from enjoying any of her pre-accident activities.

 

In Neyman v. Wouterse, the Plaintiff was injured in a low velocity impact collision, and subsequently brought an ICBC claim for damages for pain and suffering, past wage loss, diminished earning capacity, special damages, and cost of future care. ICBC’S lawyer admitted liability, however disputed the extent of the injuries claimed by the Plaintiff, given the low speed of the collision. Although the Court awarded damages, it noted that the assessment of the Plaintiff‘s injuries was problematic due to the unreliability of her reporting and her failure to advise her treating practitioners of the extent of her pre-existing neck and back symptoms, and headaches. The Court specifically referenced a Facebook posting as evidence that undermined the Plaintiff‘s credibility.

 

[126]     Ms. Neyman’s evidence that she continues to suffer from a driving phobia, albeit one that has improved, is also questionable. Before a Facebook posting that she made on January 9, 2009 was put to her, she gave the impression in her evidence that she generally suffered from anxiety after the Accident, but that it improved with time. In her Facebook posting, she wrote about driving her mother’s manual transmission BMW late at night and at high speed. The entry reads:

Angela Neyman is finally remembering how awesome it is to drive 120 clicks on a clear road in her car (Ang ♥’s Speedy G).

[127]     I found that Ms. Neyman’s responses to questions during cross-examination about that entry reflected poorly on her credibility and indicated a mindset that continues to be heavily focused on the Accident as the cause of every problem or difficulty she has faced since. Once the Facebook entry was put to her, Ms. Neyman denied suffering any phobia to driving that involved driving very fast, late at night, and in the dark with a sore knee. I also found Ms. Neyman’s attitude towards defence counsel during the exchange to have been inappropriately condescending. I also found Ms. Neyman’s evidence to be at odds with her previous testimony that in 2011, two years after the Facebook posting, she was forced to purchase a vehicle with an automatic transmission because she found driving a car with a clutch aggravated her hip. That evidence is also inconsistent with her similar advice to Dr. van Rijn in 2010 that she found it difficult to drive a standard vehicle, “as using the clutch aggravates her back and hip pain.”

[128]     Many of the answers she gave in cross-examination about a number of her Facebook postings reflected a mindset to minimize physical and travel-related problems not related to the Accident, and to discount as overstated those Facebook postings that suggested she was, following the Accident, pursuing an over-burdensome schedule by working mostly full-time hours while attending school on a full-time basis.

[129]     I am, respectfully, unable to accept the submission made by her counsel that a number of Ms. Neyman’s postings on her Facebook that might reflect poorly on her credibility should be characterized as youthful boasting to her peers. Her comments on Facebook were made of her own volition. In my opinion, having observed Ms. Neyman in the witness box over the course of several days, I am satisfied that her Facebook comments accurately reflect her mindset when each posting was made.

[130]     In all, I found Ms. Neyman to be an unreliable historian in many respects. She is unduly focused on the Accident as the cause of all of her pain and difficulties with school and work. Accordingly, I find it difficult to place meaningful weight on much of her evidence concerning the nature and extent of her pain and suffering caused by the Accident and what happened to her on impact.

In Welygam v. Willms, the Plaintiff was injured as a passenger on a motorcycle, and brought an ICBC claim for damages for pain and suffering, income loss, past diminished earning capacity, and diminished earning capacity. As is often the case in ICBC injury claims, the severity and duration of the Plaintiff’s injuries were in question. ICBC’S lawyer admitted liability on behalf of the Defendant. The Plaintiff suffered from pre-existing psychiatric conditions such as depression and anxiety, and a central issue for the court to consider was whether, and if so, to what extent, the Plaintiff’s physical symptoms sustained in the accident aggravated her existing psychiatric issues, and/or whether such psychiatric issues aggravated the physical symptoms arising from the accident. The Court also touched upon the issue of Facebook photos that ICBC’S used in an attempt to discredit the Plaintiff.

 

[331]     Reliance is also placed on …… her Facebook photograph that shows her singing on stage in no apparent discomfort, and the evidence of Mr. Wall that he saw her singing and dancing on stage and jumping off the stage.

 

[369]     I find it persuasive that the plaintiff has been able to perform on stage with her band and twist her body as is shown in the photograph of her on stage. If her back is as badly injured as she says it is, I do not believe she would be able to perform as the photograph indicates.

 

[370]     In addition I accept the evidence of Mr. Wall that he saw her performing on stage with her band after the accident and she was dancing around on stage and in the crowd. When she came off the stage she sometimes put her hand on the stage and jumped off it, a distance estimated by him to be about four feet.

 

In Dakin v. Roth, the Plaintiff was injured in multiple motor vehicle accidents, and brought ICBC claims for damages. ICBC’S lawyer introduced photos from the Plaintiff’s Facebook profile, however the Court ruled such photos to be of limited usefulness.

 

[55]         The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.

 

[56]         I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v. Narayan, 2012 BCSC 734 (at para. 30) in respect to Facebook photos:  “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.

In Guthrie v. Narayan, the lawyer for ICBC entered photos of the Plaintiff’s trip to Las Vegas into evidence, however the Court assigned little weight to these.

 

[28]        I further find that Ms. Guthrie has aggressively attempted to deal with her injuries. She has followed the medical recommendations made to her. She has attended physiotherapy and message therapy. She took a series of painful IMS treatments. She works out regularly. She has done all she can to assist in her recovery.

 

[29]        Unfortunately, however, Ms. Guthrie’s injuries have not resolved. They continue to seriously impact her daily life and will likely do so for the foreseeable future. The injuries have affected all facets of her life. She needs accommodation at work, cannot partake in some sports she formerly enjoyed, must avoid certain social events and even has difficulty when she attempts to cuddle with her boyfriend. She is no longer suited for many occupations and requires accommodation to carry out many of the occupations that are still available to her.

 

[30]        In making these findings, I have not overlooked the pictures posted on Ms. Guthrie’s Facebook page concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. The fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident.

 

In Fric  v. Gershman, ICBC’S lawyer brought a court application for production of the entire Facebook page of the Plaintiff, including vacation photos, and metadata. The Court held that the application by the lawyer for ICBC was too broad, however did order that some relevant photos be produced.

 

[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.

 

[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.

In Mayenburg v Yu, the lawyer for ICBC attempted to discredit the Plaintiff at trial by introducing Facebook photographs of her. Some were admissible, and some were not. Of the ones that were, the Court still did not rule that the photographs undermined the Plaintiff’s credibility in any way.

 

[39]      The defendants sought to introduce 273 photographs which they obtained from Facebook “walls” of Ms. Mayenburg’s friends.  The bulk of these photos showed no more than Ms. Mayenburg enjoying herself with her friends, for example having a drink in a bar or pub.  I ruled inadmissible any photos which did not show Ms. Mayenburg doing a specific activity which she said she had difficulty performing, since they had no probative value.

 

[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.

In Bagasbas v Atwal, the Plaintiff alleged that she could not participate in certain sporting activities, however the lawyer for ICBC produced photographs from her Facebook page that contradicted her position. This had an effect on the amount of damages awarded to the Plaintiff.

 

[5]               The evidence disclosed that the only pre-accident activity which the plaintiff has given up for the time being is running.  She said she could no longer kayak, hike or bicycle, but the defendant produced some of the plaintiff’s own photographs posted on her Facebook page that showed her doing these activities.  There was no evidence of decreased capacity to perform household or work related chores.  The plaintiff and her husband testified that if the plaintiff exerted herself, she tired more easily than before, but it was unclear whether this related to injury to her upper or lower back.

 

[6]               The distinction between the plaintiff’s complaints of upper back and lower back injury is significant, because there was no evidence linking the upper back injury to the accident.  Dr. Ladhani said there was a temporal link between the complaint of pain in the neck, shoulder and upper back regions and the accident, but in his opinion no such link existed with respect to the plaintiff’s lower back injury.  Indeed, plaintiff’s counsel made it clear from the outset of trial that the plaintiff was not claiming for compensation for anything arising from her herniated disk or the condition of her lower back.

 

[7]               The medical evidence before me was rather vague.  Combining this evidence with the plaintiff’s subjective evidence of her complaints, I find that on a balance of probabilities the plaintiff suffered a mild whiplash to her right neck, shoulder and upper back in the accident of June 1, 2006.  I further find that the whiplash had probably substantially resolved itself within three months.  Any further complaint of pain in the fall of 2006 is not supported by the objective evidence of the plaintiff’s rather strenuous activities.  The photographs of the plaintiff dancing illustrate arm, neck and back movements, executed in approximately two inch heels, that contradict any claims of restricted range of motion or significant pain in these areas.  It has been said many times in many cases that the court must be careful in awarding compensation where there is little or no objective evidence of continuing injuries, or in the absence of convincing evidence that is consistent with the surrounding circumstances (Butler v. Blaylock, [1981] B.C.J. No. 31 (S.C.); Price v. Kostryba 1982 CanLII 36 (BC SC), (1982), 70 B.C.L.R. 397 (S.C.)).