In this fast track personal injury claim the defendants sought an order for production of various documents and records, including photographs and videos from the claimant’s social media accounts or platform (Wilder v. Munro,2015 BCSC 1983). ICBC has been known to use social media photos against innocent victims of personal injury in an attempt to discredit their injuries. This apparent unscrupulous attempt to bully this claimant was unsuccessful.
The notice of application of the defendant requested that the claimant identify the photographs and videos in her possession and control in which she is featured, identifying them by location, date and time, if available:
- Participating in dance training, rehearsals, auditions or competitions;
- Attending music festivals;
- Socializing; and
- On vacation.
An injury claimant’s obligation to disclose social media content has been addressed in a number of decisions 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.”
The defendants already had in their possession dozens of photographs and more than ten videos which show the claimant’s physical abilities and social activities in the years following the accident. As the judge stated, ” 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.[ W]’s report to also disprove the plaintiff’s claim of a lost dancing career.”
Unlike the previous cited cases 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 and the claimant declined to make any such admissions.
The defendants failed to demonstrate the probative value of any photographs or videos depicting the claimant socializing or on vacation. The court also found that the efforts entailed in protecting the privacy rights of friends and family depicted in the photos and videos, was not proportionate to the issues to be determined at trial.