Is there an obligation to disclose Selfies and other social media posts relevant to a personal injury claim?

October 23, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

In a recent Ontario Superior Court Decision Toth v. City of Niagara Falls Justice Whitten reviewed the question of whether a plaintiff is bound to disclose selfies and other social media content at trial. A young girl claimed injury allegedly caused by an uneven sidewalk. She suffered a badly broken leg and then underwent many serious surgeries. She claimed general damages, loss of economic opportunity due to psychological issues.

PRODUCTION OF SELFIES AND SOCIAL MEDIA POSTS: Production of the public available information prior to trail considered relevant and necessary.

The Judge noted there were three impediments to a successful pursuit of her case, all to do with how the case was presented;

1. There was significant disparity between what the plaintiff attested to at discovery when she was 12, and what she said at trial
2. Social media pictures directly contradicted her evidence of social isolation and difficulty physically.
3. The evidence of her physician.

The Justice reviewed the law and the evidence in light of awarding costs noting that the traditional approach to costs can be viewed as being emanated by the broad concerns to ensure that the justice system works fairly and efficiently.  Because cost awards transfer, some of the winner’s litigation expenses to the loser rather than them leaving each parties expenses where they fall (as is done in jurisdictions without costs rules).  They act as a disincentive to those who might be tempted to harass others with meritless claims.  Because they offset, to some extent, the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position.  These effects of the traditional rules can be connected to the court’s concern with over-seeing its own processes and ensuring that litigation is conducted in an efficient and just manner.  In this sense, it is a natural evolution of the law to recognize the related policy objectives that are served by the modern approach to costs.

Obviously, offers are encouraged within a system of litigation that cause parties to reflect upon their chance of success and the costs associated with the pursuit of the litigation.  In other words, to take a clinical objective approach to that which they are embroiled in.  The incentive is to make a fair offer and that there are costs consequences to the other side if they do not achieve the offer or better than.

Rule 57.01 continues to consider as factors: elements of bad litigation behaviour, i.e.  the failure to admit that which should be admitted and behaviour that contributes to the prolongation of the matter or unnecessary expense.  Obviously, one of the goals is to have litigation which is cost effective, not a function of playing “hardball”.

The duty to give correct answers given at discovery is addressed in Rule 31.09, which provides that if a party has testified in a particular fashion, namely, an answer,  and information is subsequently discovered that renders that answer incorrect or incomplete, that deviation should be communicated to the other parties.  If a party fails to do that then the corrected evidence can only be led or introduced if leave is obtained from the trial judge (Rule 31.09(3)(a). This rule clearly applies to the deviation of the plaintiff in her evidence at trial from that which she attested to at her examination for discovery.

Social Media Evidence

In the last day of this trial (i.e. before the parties entered into settlement discussions facilitated by a jurist, in a mid-trial pre-trial), the name of the plaintiff’s boyfriend, having been finally discovered, counsel for the defence tabled as exhibits, Facebook and photographs from the boyfriend’s account showing the plaintiff in various physical and social events.  The plaintiff was familiar with these photographs.  These photographs were arguably relevant to the plaintiff’s physical capabilities and her degree of socialization, both elements of the general damages sought.

Generally speaking, all documentation are relevant to a pleading is producible by the party in whose possession they are.  Perhaps because these documents were on the public side of the boyfriend’s Facebook it could be argued that they were not in possession of the plaintiff, but ostensibly they were within the power of the plaintiff. 

Why was the name of the boyfriend not revealed earlier?  It could be because of the duration of this litigation, “Facebook” disclosure only came into vogue four or five years ago.  But in this case, this revelation led to the possibility of hundreds of more pictures.  In this day and age, given the ease of taking such pictures with your iPhone and the frequent tendency by some to take “selfies”, this form of potential disclosure presents a potential treasure trove of real evidence as to what a party is capable of doing, notwithstanding their injuries.

Counsel for the plaintiff started to argue privacy concerns before the subsequent evidence was produced.  In considering whether to make an order compelling disclosure of private documents, whether in possession of a party or a non-party, the court ought to ask itself whether the particular invasion of privacy is necessary to the proper administration of justice and, if so, whether some terms are appropriate to limit that invasion.  There need not be a privilege against testimony in the classic sense for this to be a relevant question.  By “private documents” the Judge meant documents which are not public documents.  He did not limit this question to what might be thought of as personally embarrassing documents.

On the one hand, a person who has been injured by the tort or breach of fiduciary duty of another ought not to be driven from the judgment seat by fear of unwarranted disclosure a sort of blackmail by legal process.  If such a thing were to happen, the injured person would be twice a victim.

But, on the other hand, a defendant ought not be deprived of an assessment of the loss he actually caused, founded on all relevant evidence.  It would be as much a miscarriage of justice for him to be ordered to pay a million dollars when, if all the relevant evidence were before the Court, the award would be for one-tenth that sum, as it would be for the injured person to feel compelled to retire from the field of battle because of a demand for documents containing intensely personal matters of little relevance”.

The defendant had made a Rule 49 offer before the commencement of the trial of a judgment for the plaintiffs in the amount of $400,000.00, costs, HST, and disbursements, were to  be assessed on a partial indemnity basis. That offer was made at the time when the defendant operated under of the belief that the plaintiff would testify as per her examination for discovery.

The plaintiff offered to settle the matter for $720,000.00 without any breakdown of what the sum covered.  Counsel for the plaintiff asserts that because counsel for the defendant made reference to an apparent limited preparation for the mediation, that reference somehow allowed her to refer to an offer made at the time of mediation, notwithstanding clause 5(d) of the Mediation Agreement which expressly prohibits the parties from “relying on or introducing as evidence in any subsequent proceedings... any offers or positions taken by any party”.

Remarkably, both sides refer to Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 (CanLII), 2014 1 SCR 800 as authority for their position.  That precedent is based on a factual situation in which a settlement was achieved at the mediation.  The discussion was with respect to the interaction between settlement privilege and a mediation confidentiality clause.  In our case, there was no settlement.  There is no way that counsel for the defendant breached the confidentiality clause, by referring to the quality of the plaintiff’s counsel’s preparation, a fact that she herself had raised in the context of the costs sought.  The confidentiality clause prevails, the innocuous reference made in the cost submissions does not allow counsel for the plaintiff to put forth in these cost submissions an offer that was made by the plaintiff at mediation.

The Rule 49 offer by the defendant comes close to how this case was resolved.  The Rule 49 offer of the plaintiff was far in excess of what was achieved.  Although as Justice Rosenberg stated in Elbakhiet v. Palmer, supra at para. 31, there is no “near miss” policy, the defendant’s offer was still the more relevant and realistic offer to consider in the holistic approach to costs provided for by Rule 49.13.

The Rule 49 offer by the defendant was no doubt influenced by the “discovery version”, which was what was anticipated to be led at trial.  That version is pivotal with respect to the liability issue in the trial.  Because the evidence led was rather vague as to how the actual falling off the scooter is caused, the evidence of Kelly Toth was crucial.  The “discovery version” made contributory negligence a live issue, she had circumnavigated the block several times without issue, without apparently being affected by a sidewalk rise or perhaps she had learned to deal with that alleged feature.  Counsel for the defendant in his opening remarks clearly stated that contributory negligence was key, perhaps even eliminating liability.

The Rule 49 offer, given that position, which was not unreasonable, appears to be in itself quite fair and reasonable.  “Reasonable” in the holistic sense, i.e. all things considered, it was somewhat generous.  With the benefit of hindsight, if the defence had known of the disparity between the trial and discovery versions, no doubt the offer would have been much lower.

Given the disparity between the versions and the absence of a Rule 31.09 notification, counsel moved to strike the trial version.  That was a legitimate position.

Counsel for the plaintiff was naturally upset.  There was talk of her retaining counsel to represent her.  It was about as awkward a moment as you could have in a trial, the plaintiff stating that she believed her counsel had sent the Rule 31.09 notification.  The concern was openly expressed with respect to how the other plaintiff witnesses would testify.  So, this jurist had the spectre of professional negligence and possible collusion amongst witnesses.

Fortunately for all, after counsel discussed this matter, the defence withdrew the motion to strike the trial version and the two versions were left in place.  So, the plaintiff was now a witness with a prior inconsistent statement, which could be considered by the trier as relevant to her credibility.  The Rule 31.09 non-compliance could be considered on costs.

So, the trial limped on.  The inconsistent versions were not inconsequential; the existence of liability was perhaps even more of a sensitive issue.  Counsel for the plaintiff seeks to explain the discrepancy, by saying that Kelly was a pre-adolescent child when she was examined at discovery, whereas at trial she was a more sophisticated young adult.  That being said, is there not something refreshing, non-rehearsed when children say things?

It must be observed that with all the preparation counsel for the plaintiff alleges in her Bill of Costs, devoted to interviews and preparation of witnesses, would counsel not have gone over with her client the latter’s discovery evidence?  Would that exercise not have revealed the discrepancy, the error, the “incorrect” discovery testimony?  Maybe the preparation was not as intensive as is put forth, but the exercise of going over prior evidence or statement is pretty basic.

There is no doubt that the plaintiff experienced numerous surgeries and apparatus to address the multiple fractures resulting from the incident.  Her evidence with respect to her sense of isolation as an adolescent was compelling.  At the same time, she demonstrated a certain strength of personality in her demeanour as she testified.  Ms. Toth’s evidence as to the continuation of this lack of physicality and sociability into adulthood, such that it would impact upon her scholastic success and choices, was challenged by the Facebook photographs.  She had travelled to England with her boyfriend, gone to rock concerts, went drinking with friends, etcetera.

Regrettably, over her evidence of isolation and lack of physicality, was the cloud of credibility arising out of the Rule 31.09 fiasco.  This was not helped by or lifted by how the photographs were discovered by accident, versus being produced.  Two failures of disclosure in one trial does not help a plaintiff’s case. Did the plaintiff torpedo or diminish her credibility independently? Or did counsel just not address those issues?

Conduct of a Party that Unnecessarily Lengthens the Duration and Complexity of a Trial

What has been said above with respect to the effect of the Rule 31.09 conformity applies with respect to the manner in which the plaintiff’s case was presented.  That non-conformity clearly added to the length of the trial; there was a fire to be extinguished, an issue that could have been so easily addressed by adhering to the rule in the first place. Preparation of counsel for the defence was geared up to and based on the discovery version.  With the “trial version” counsel had to scramble to address that version and the repercussions for the defence’s case. To some extent, counsel for the defence had to scramble when the boyfriend’s name was finally revealed, and Facebook could be explored. Clearly how the plaintiff’s case was presented at trial elongated the process.  The trial was expanded upon by dealing with both the Rule 31.09 issue and the social media production.

At the outset of the trial, the plaintiff moved to increase the prayer for relief from $1,000,000.00 to $2,000,000.00.  No reason was provided for why this amendment had not been made earlier. The plaintiff succeeded in obtaining a settlement of $450,000.00 plus costs, which represents about a quarter of what was sought. Proportionality of costs relative to the amount realized is a factor.  A Bill of Costs ranging between $381,695.09 and $427,499.64, the latter being almost 100 percent of what was achieved.  This is not a model of proportionality.

The legal framework of this case was not complex.  The real challenge lie in producing a body of evidence which satisfied the liability issue and the magnitude of the damages.  With respect to the former, the plaintiff undermined her credibility and with the latter, there was the prospect of “overreaching”.

The discussion to this point reveals significant problems with how the case was presented on behalf of the plaintiff.  Some of these problems trigger the negative factors touched upon in Rule 57.01.  That being said, that does not mean the plaintiff is not to receive any costs.The case for the plaintiff obviously had some worth, despite how it was presented.  It was that sense of worth that caused this jurist to encourage participation in a mid-trial pre-trial. The settlement itself recognizes inherent worth in the plaintiff’s claim and that is at a point where there are real credibility issues with respect to liability and the extent of damages.  $450,000.00 plus assessed costs is not a diminutive result.  Given what has been discussed, it is a very fair result for a young person with a shortened leg and coincidental orthopaedic architectural difficulties.

The discussion to this point merits a significant reduction in the amount of costs claimed by counsel for the plaintiff.  It is recognized that depending upon the understanding between the plaintiff and her counsel, that any discrepancy between what is awarded and what counsel has put forth in her bill of costs may be deducted by counsel from the $450,000.00.  That possible deduction or diminution of the settlement amount may be based on what counsel claims as between her client and herself as costs.

This potential for encroachment upon the settlement cannot be a concern for this court.  That is between counsel and her client. The responsibility of the court is broader as was referenced in the survey of applicable case law regarding costs.  The courts have to apply the general principles of Rule 57.01 and consider how the presentation of the case impacted upon the efficiency of the system and fairness to all sides.

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