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:
 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.
 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.
 In Murphy v. Perger,  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: http://www.canlii.org/en/on/onsc/doc/2012/2012onsc7236/2012onsc7236.html
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:
- Ensure you use the privacy settings on all social media accounts;
- Do not post photographs on any public forum online;
- Be aware before snapping a picture that the lawyer for the defendant insurance company may someday be scrutinizing your photos and questioning you about the activities depicted within.
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