The abstract concepts of "tracking data" and
"biometric information" may well become increasingly
prevalent in Canadian courts.
On November 18, 2014 local Calgary media reported that one
Calgary litigator will be relying on Fitbit tracking information in
Court to demonstrate that his client has suffered debilitating
Simon Muller of McLeod Law LLP acts for an individual who
commenced a personal injury claim following a low impact automobile
accident. Muller candidly concedes that at first glance such claims
are often met with a dose what he terms "healthy
In an attempt to combat the "no crash, no cash"
approach common to many personal injury cases (including but not
limited to those involving injured workers), the plaintiff is using
technology as an aid in proving her injuries and corresponding
The Fitbit is a wrist-worn device used to track the physical
activities of the wearer, often over the course of one day. The
device can monitor, for example, levels of sleep, number of
calories burned, and steps taken over a given period.
In his case, currently scheduled to go before the Court in
December, 2014, Muller intends to use the Fitbit's biometric
data for a contrarian purpose. Rather than seeking to prove how
active and fit his client is, Muller's goal is to demonstrate
for the Court that the plaintiff is actually sedentary and inactive
relative to normal people in her age range.
Take Away for Employers
New and developing technologies will continue to offer lawyers
novel ways to present their cases. It remains to be seen how Fitbit
or other biometric data will be treated by courts and tribunals.
And even if such data is admitted into evidence, there are of
course distinctions between the mere correlation of events (the
plaintiff's accident and her inactivity) and a causal link
between them, which is required in order to establish liability and
For employers, the growing popularity of the Fitbit and other
biometric fitness devices raises some interesting privacy and
workplace monitoring questions. For example, will employers be
permitted to require employees claiming disability or illness wear
such a device, in order to "prove" their conditions? And
what, if any, tolerance will there be in modern workplaces for
efforts to "force" employees to stay at their work
stations and be inactive throughout the day?
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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