Friday March 20, 2015

Say Cheese! Can Lawyers Get Their Hands On Your Private Photos?

Posted in: Personal Injury

If you are like most Canadians, you are longing to escape the winter and head south in search of white sandy beaches and maybe even a tropical cocktail. However, if you are in the midst of pursuing a personal injury claim, there are things you should know before packing your bags. 

The lawyer for the defendant insurance company will likely seek copies of your vacation photographs to be disclosed in the personal injury litigation. Also, the lawyer for the defendant insurance company can seek production of photographs posted to your Facebook, Instagram, Twitter, or other social media accounts.                                                                       

In a recent Ontario court decision, Stewart v. Kempster, 2012 ONSC 7236, the Defendant bought a motion to compel the Plaintiff to provide vacation and Facebook photos.  The Plaintiff was injured in a car accident and had started a lawsuit seeking compensation for her injuries. After the accident, the Plaintiff had taken a trip to Mexico. The lawyer for the defendant insurance company was asking the court to force the Plaintiff to provide copies of the photos from her Mexico trip as well as other photographs on her private Facebook account. Justice Heeney of the Ontario Superior Court of Justice dismissed the Defendant’s motion and provided the following reasons:

[12] In order to succeed on this motion, the defendants must satisfy the court, based on “evidence”, that a relevant document has been omitted from the plaintiff’s affidavit of documents. The defendants submit that all vacation photographs are relevant because the plaintiff has put her enjoyment of life and participation in social and recreational activities in issue. She testified on her discovery that during some of these trips, she engaged in various activities, including swimming, walking and sightseeing.

[15] I am not persuaded that the photographs in question have any real relevance to the issues in this case. I quite agree that if there were photographs that showed the plaintiff [page156] water skiing or rock climbing, they would be relevant to demonstrate the extent of her physical limitations following the accident. The photographs in question, though, say nothing about the physical limitations that she has testified she is suffering from. An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.

[16] In Murphy v. Perger, [2007] O.J. No. 5511, 67 C.P.C. (6th) 245 (S.C.J.), Rady J. ordered production of photographs that were posted on the private portion of the plaintiff’s Facebook account. However, that case is distinguishable for two reasons. First, there were photographs available on the publicly accessible portion of the Facebook account, which led to the inference that similar photographs were posted on the private portion of the account. Second, the plaintiff had served, and would be relying on, pre-accident photographs to assist in proving the impact of the accident on the plaintiff’s lifestyle. The court reasoned that if the plaintiff felt that pre-accident photographs met the relevance test, post-accident photographs would be similarly relevant.

The full decision can be viewed at:

Although that particular decision was favourable for the Plaintiff and she did not have to give up any of her photographs, it is important to remember that each case turns on its own facts. You can help protect your privacy by taking some precautions:

Connect with a member of our team today to schedule your free consultation. To contact a member of our Personal Injury team call us at 902-469-9500 or 1-866-339-3400.

Share This Post:

Ask a question about this post.

Any Questions

Recent Blog Posts

Blog Post | Thursday November 7, 2019

Trademark Basics: What is a Trademark?

Authored by: Marc J. Belliveau Posted in: Intellectual Property

Canadian trademark practice is evolving every year due to technological advancements in brand marketing and changes in the law itself, whether through legislative amendments to the Trademarks Act or as a result of new judicial interpretations.

Read full article
Blog Post | Tuesday October 8, 2019

Supreme Court finds Crown owns Copyright in Land Surveys

Authored by: Marc J. Belliveau Posted in: Intellectual Property

It is not often that our Supreme Court of Canada (“SCC”) decides a copyright case. So, it’s always exciting to read their latest thoughts on the interpretation of the Copyright Act (“Act”).

Read full article
Blog Post | Tuesday September 17, 2019

What are Statutory Damages for Copyright Infringement?

Authored by: Marc J. Belliveau Posted in: Intellectual Property

When you sue someone for copying your original work of art, music, drama or fiction without your permission, it’s often difficult, time consuming and very costly to calculate and prove the full amount of your financial losses.

Read full article
Blog Post | Wednesday August 28, 2019

What’s the Buzz in Music Plagiarism Lawsuits?

Authored by: Marc J. Belliveau Posted in: Intellectual Property

During the last century, composers, musicians and their copyright lawyers held a traditional belief and legal understanding that copyright infringement lawsuits related only to stolen lyrics and copied melodies, but not for more abstract compositional elements.

Read full article