Anything you do or say may be used against you in the court of
law. Increasingly, this includes what you may have shared
Over the last few years, as sharing of personal information on
social media has become more ubiquitous, many personal injury cases
in Ontario are being decided on evidence gathered from
plaintiffs' social media accounts, which provide
'metadata' creating a time and location stamp of a
user's online activity. And it's all admissible as evidence
Crucial to the admission of this kind of evidence is what social
media now represents -- a public forum where users openly share
details of their private lives and personal opinions. Once a
comment, status update, tweet or photo is posted, it has gone
public and it never really goes away, even after you hide or delete
Whether the defendant is an employer fighting a case of wrongful
dismissal or an insurance company denying an injury claim, they
will often turn to their search engines and monitor a
plaintiff's social media activity, cross-referencing the
details of their legal claims with the content and timing of their
online activity to invalidate or refute them. This is particularly
the case if posts are made during a court proceeding.
This is what happened in Frangione v Vandongen et al.,
where the plaintiff was suing for damages arising out of
injuries--traumatic brain injury, neck and back pain and
headaches--sustained in two separate car accidents. The defendant
sought to access the entire contents of the plaintiff's
personal computer, including any material contained on his Facebook
The plaintiff insisted that submitting access to his Facebook
profile -- and the communications to third contained within -- was
a breach of privacy, while the defendant cited precedent to argue
the contents of a claimant's social networking profile were
relevant to the case and that submitting those documents was a
practice that was "beyond controversy."
In the end, the plaintiff was ordered to preserve and produce
"all material contained on his Facebook website including any
postings, correspondence and photographs up to and including any
postings, correspondence and photographs," up to and including
the date of the order.
Since this is becoming an increasingly common legal strategy in
Ontario courts, a more difficult question arises over whether
social media content can be considered reliable evidence.
After all, social media profiles are typically used to exhibit a
public profile that displays what we choose to share with our
friends and followers. To have a photo or post be interpreted as
indicative of your actual state of being is highly speculative.
Judges now require proof of relevancy before ordering plaintiffs
to submit social media materials. In a recent decision in Merpaw v. Hyde, Justice Rick
Leroy denied the defendant's discovery motion to overturn a
refusal to provide a private Facebook account by the Plaintiff, who
claimed "a reduced enjoyment of life, incapacitation from
employment, chronic fatigue and depression" resulting from a
trip and fall injury.
In his decision, Justice Leroy cited "minimal probative
value in this data to the issues of enjoyment," and was
"unclear on the inferences that can be drawn from usage
But as a standard practice, you should always be acutely aware
of how your social media profile reflects your circumstances,
especially as interpreted in a court of law.
Be aware of how your profile appears to employers, insurers or
any party that could use your personal information shared on a
public forum against you.
If you are involved in a court dispute, your lawyer should
advise you to conduct a thorough scrape of your online presence
before and during the proceedings, and highlight any potential red
flags that could be used as evidence against you.
Above all, don't post new content that you might regret
later. Ask yourself: "do I really need to post this
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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