Social Media Posts May Be Evidence in a Personal Injury Case

For many Canadians, social media has become a part of everyday life. Unfortunately, many are guilty of oversharing. According to Statistics Canada, only 42% of Canadian internet users reported changing their privacy settings on social media accounts or apps to limit their profile or personal information.[1]

Believe it or not, what seems like a harmless post on social media may lead to dire consequences for Plaintiffs involved in personal injury actions. These social media accounts may be monitored by Defendants, their lawyers, or private investigators hired on behalf of insurance companies in order to obtain evidence which puts the Plaintiff’s credibility into question, particularly when the Plaintiff has claimed that the injuries have caused a reduced ability to function and enjoy life.

Social Media Accounts May Have to Be Disclosed to Opposing Parties

According to Rule 30.03 of the Rules of Civil Procedure, all parties are required to serve an Affidavit of Documents. The Affidavit of Documents has the function of disclosing all of the documents which are in possession and are relevant to any matter in issue in the litigation – for example – whether a Plaintiff’s injuries have interfered with their ability to socialize with their friends and enjoy their life.

“Documents” have been defined under Rule 30.01(a) to include “data and information in electronic form.” If that is not convincing enough, the Ontario Superior Court in Leduc v. Roman[2] held that Facebook posts are considered documents within the Rules of Civil Procedure. This means that if they are relevant to the action, a Plaintiff’s social media posts must be disclosed.

If parties cannot agree upon whether or not posts should be produced, the disagreement will likely be settled at a motion. More often than not, like in Casco v. Greenhalgh[3], the court will conclude that it is reasonably likely there are relevant photographs on the Facebook profile and order them to be produced.

Posting on Facebook Can Negatively Affect a Personal Injury Case

Consider the Plaintiff from Tambosso v. Holmes[4], who was involved in a car accident. She claimed that her injuries ruined her social life and were sufficient for the court to award damages for loss of enjoyment of her life.

Unfortunately for Ms. Tambosso, however, the court ordered that pictures on her Facebook account be disclosed as they were relevant to the matter. Upon reviewing these photographs, the court found that the pictures were at odds with her allegations that she suffered from PTSD and depression. The pictures showed that Ms. Tambosso continued to attend social events such as river tubing, attending costume parties, and performing at a karaoke competition.  Consequently, her claim for damages was significantly reduced.

Plaintiffs Should Take Steps to Use Social Media Wisely

If you have commenced an action or are considering bringing an action for damages as a result of personal injury, the best way to avoid this situation is to refrain from posting altogether until the lawsuit has concluded. However, if you must post, it is important to be mindful when posting on social media by:

• Refraining from posting any information related to your lawsuit;
• Refrain from posting pictures of yourself;
• Untagging yourself from photographs that were taken after your injury;
• Ensuring your Facebook page is private;
• Declining friend requests from people you do not know; and/or
• Thinking twice before posting something that may impact your case.

This article was written by a member of the Personal Injury Team at McKenzie Lake. If you require assistance with a personal injury matter or wish to speak to a personal injury lawyer at McKenzie Lake Lawyers LLP, please call (519) 672-5666.

[1] https://www150.statcan.gc.ca/n1/daily-quotidien/191029/dq191029a-eng.htm

[2] [2009] OJ No 6838.

[3] 2014 CarswellOnt 2543.

[4] 2015 BCSC 359, rev’d on other grounds 2016 BCCA 373.