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 personal injuries.

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 skepticism".

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 damages.

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 damages.

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.

© McMillan LLP 2014