In the recent case of Fric v Gershman, 2012 BCSC 614, Carfra & Lawton partner Giles Deshon successfully obtained an order for production of a plaintiff’s photographs from her Facebook site, and those taken while on vacation. Further, the plaintiff was required to provide the location, date and time the photograph was taken, if available.

In a growing number of personal injury cases digital devices, Facebook and other social networking are yielding background information regarding plaintiffs. The plaintiff’s photographs and associated data are sometimes requested to be produced as relevant documents. Oftentimes, the plaintiff resists such requests.

One of the more difficult tasks we face in defending actions on behalf of insurers is assessing a person’s claim of impairment in work or recreational activities. We have various means through which we make these assessments, including independent medical examinations, obtaining medical, scholastic and occupational records, interviewing witnesses, examinations for discovery and sometimes surveillance. We utilize surveillance in large part to determine if the person is being forthright as to their functional capacity. The private investigator may discover the person engaging in activities inconsistent with their records and their discovery evidence. When a person ‘has their guard down’, there is greater likelihood that they will engage in their everyday activities. Digital devices and social media can also provide a window into such activities.

In the Fric case, the defendant had issued a demand under Rule 7-1(11) of the Supreme Court Civil Rules. The defendant had examined the plaintiff for discovery and found out that the plaintiff had photographs from her participation in a social and physical games weekend one month after the accident, and from various vacations. The plaintiff had refused to provide the photographs, arguing they would not provide evidence of whether the plaintiff was in pain, that the plaintiff’s right to privacy outweighed the probative value of the information sought and that the photographs were no more than “snapshots in time”.

The reasons for judgment analyse and reconcile the authorities in British Columbia and Ontario regarding when photographs and videos may be relevant, and when metadata may be ordered produced, along with how those decisions dovetail with the new document disclosure regime in B.C. The result is a framework for how to secure the necessary evidence and take the appropriate steps to ensure that relevant photographs and data can be ordered produced.

After determining that certain of the photographs sought were relevant, the court applied a test of proportionality and what was required to ensure a fair trial on the merits to order disclosure. As the action involved an articled student who had been in a motor vehicle accident during her first year of law school, which she said resulted in ongoing neck pain, back pain and headaches impacting her studies and work, it was clear that the claim could be significant. The court confirmed a 2011 decision that an order for broader disclosure can be consistent with the proportionality objective in the new rules (Global Pacific Concepts Inc. v Owners of Strata Plan NW 141, 2011 BCSC 1752).

The court explicitly left to the trial judge the balancing of prejudicial effect and probative value to determine admissibility. This was particularly interesting in the context of the court’s decision to relieve the plaintiff from an obligation to include commentary from her Facebook site because the probative value of the information was outweighed by the interest in protecting the privacy of the plaintiff and third parties. The court accepted that privacy rights should not be abridged without cogent reasons to do so. A defendant therefore is required to provide such reasons, but one of the important aspects of this decision is that it specifically allows defendants to cast a wider net at discovery in relation to photographs, and presumably other documents contained on digital devices, than they may be allowed to utilize as exhibits at trial.

Insurance Coverage Subtleties & Practice Notes - PDF

For more information, please contact Dean P.J. Lawton or Christopher H. McDougall.

The Insuring Agreement - PDF

For more information, please contact Giles P.G. Deshon.

The BC Court of Appeal agreed and dismissed the appeal.  In doing so, it grappled with the plaintiff’s contention that there are two types of occupier liability cases in BC:

[18]         The plaintiff says, further, that the chambers judge erred in finding that the sweep and inspection policies of the store were adequate to meet the requirements of the Occupiers Liability Act. She contends that there are two types of occupiers’ liability cases:  “due diligence cases” and “unsafe conditions cases”. She accepts that in “due diligence” cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an “unsafe condition”, there is a greater duty to take care to protect visitors to the premises from risk. In support of this argument, she cites Elder v. Westfair Foods Ltd., 2001 ABPC 94 and Stonechild v. Westfair Foods Ltd., 2001 SKQB 466.

The court rejected this notion, stating:

[19]         I do not agree with the plaintiff’s contention that different standards of care apply to different types of hazards on an occupier’s premises. The Occupiers Liability Act establishes a single standard of care, “a duty to take that care that in all the circumstances of the case is reasonable to see that a person … will be reasonably safe in using the premises.”  While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier’s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care.

This is an important decision because of the Court’s affirmation that in BC there is only one standard of care: the one set out in the Occupiers Liability Act.  It also suggests the peril that exists if one relies on occupier liability law from other jurisdictions where the common law still applies or where occupier legislation is essentially a codification of the common law.

A full copy of the decision is available for free at:

http://www.courts.gov.bc.ca/jdb-txt/CA/11/02/2011BCCA0202.htm

Neil Carfra, one of the partners with Carfra & Lawton, represented Canada Safeway in this matter.  Please feel free to contact him if you have occupier liability concerns.

DOWNLOAD OUR PAPER

DOWNLOAD OUR PAPER HERE

Health Care Costs Recovery Act paper

As the court noted in its unanimous reasons issued December 29, 2008, “On 4 August 1998, the plaintiff/appellant Rose Petersen fell over a 26-inch wall at the edge of the patio outside her condominium, dropping 13 feet into a concrete stairwell and suffering serious injuries.”

Acting without a lawyer, the plaintiff missed the two-year limitation period for commencing action for personal injuries in tort, contract and statutory duty, but in 2005 a Supreme Court judge permitted her to amend her pleadings to plead breach of fiduciary duty, which carries with it a six-year limitation period.

In the summer of 2007, a BC Supreme Court justice agreed with Mr. Carfra that the defendants owed the plaintiff no fiduciary duty to put up the railing, even though they had agreed to do so but did not get the job done before the plaintiff fell.  The plaintiff appealed.

In concluding that no fiduciary duty existed in this instance, the Court of Appeal wrote, “The claim for breach of fiduciary duty attempts to overcome the limitation period that now bars her common law action.”  The court continued:

… there was no element of unconscionability toward Ms. Petersen that elevates her claims beyond the boundaries of contract and tort.  It follows that the relationship between Ms. Petersen and the respondents did not satisfy the fiduciary elements outlined in Frame v. Smith.  Ms. Petersen was not vulnerable to any discretion or power assumed by the respondents to exercise selflessly on her behalf related to the wall and railing.  The relationship was entirely defined by common law obligations and those duties are time limited by the statutory limitation periods.  While I sympathize with Ms. Petersen’s plight, I do not think that we can create a fiduciary relationship where one does not otherwise exist simply to defeat a limitation defence.

The decision can be read at this link:  Petersen v. Proline Management Ltd, 2008 BCCA 541.