Social Media – The Do’s and Don’t’s

 by Peter Buxton, trial lawyer

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 If you have been involved in a motor vehicle collision that was not your fault, you may choose to make a claim through ICBC and eventually commence an action in Provincial or Supreme Court.

Likely one of the allegations that you will make in your claim will be that your injuries have altered your physical ability and affected your lifestyle and quality of life.  These claims will allow the other party in the lawsuit, perhaps represented by ICBC and their appointed lawyers, to look into all aspects of your life to defend or disprove your claims.

This includes any social media that you use regularly.  Increasingly evidence of on-line activity is being presented in evidence and considered by the Courts.

Many lawyers will advise you to withdraw completely from using social media and “get off the grid”.  This can be easier said than done.  You do not have to give up your on-line presence but there are some “Do’s” and “Don’t’s” that will protect you and help you to make a successful claim.

DO

  • Above all, when making your claim, always tell your caregivers, the ICBC adjusters, your lawyer, your friends, and all others the truth about the impact that the collision and your injuries have had upon your life.
  • Continue to go about your life as you did prior to the collision but understand that everything that ends up on-line may be reviewed by investigators acting for ICBC and the other party in your litigation.
  • Adjust all of the privacy settings on your individual programs to limit access to your data by unknown individuals that you do not approve in advance.  You can curate your programs to restrict access to them by unwanted individuals.  Information on how to do this is readily available in the programs themselves or through Google or YouTube.

DON’T

  • Lie, mislead, exaggerate or embellish the effect that your injuries have had upon your life or your past lifestyle.
  • Comment on line about your injuries, ICBC, the Court, your job or your claim. Remember, your life on line will become an open book in your claim and law suit.

The courts have approached the issue of the disclosure of social media posting with caution.  In Dosanhj v. Leblanc et al. Master Taylor found that

[30]         I am unable to envisage any rational justification for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individual’s general health, enjoyment of life and employability are directly at issue.  Merely because a record may be made of the communication shouldn’t make it any different than a private telephone conversation.  If not, surely applications in civil proceedings for recordings of private communications can’t be far behind.

[31]         The plaintiff has provided an affidavit in response to the defendant’s application, in which she has deposed that she uses both her laptop and her iPhone to communicate with her lawyer over email and, in the case of her iPhone, using text messages.

[32]         As well, the plaintiff has deposed to being upset with the prospect of producing her Facebook account, her Twitter account, her computer and iPhone to the defendant as she feels they are private.  She has also deposed that she opened a Facebook account around the time of her surgery in 2006, mostly to see what other people were doing and to keep in touch with friends or family with whom she had lost touch.  The plaintiff has also deposed that she closed her Facebook account approximately a year and a half ago.

[33]         I am satisfied that the defendant’s application is entirely too broad and lacks the focus required by Rule 7-1(1)(a)(i).  In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait.  I observe as well that the order made by the court in Bishop, supra, was focussed on the times the plaintiff spent on his Facebook account on his computer, and did not give the defendant cart blanche to troll through the plaintiff’s correspondence as is sought in the application before me….

[37]         Surely if the material sought by the defendant from the social media sites on the plaintiff’s computer is an invasion of privacy, the application for metadata, in the context of the case at bar, would also be a serious invasion of the individual’s privacy.  In any event, in the context of this application I would choose to exercise my discretion not to grant the application for metadata associated with the plaintiff’s files related to her resumes and cover letters.

However, at trial in Tambosso v. Holmes, Justice Jenkins found as follows:

  • [170]     Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.
  • [171]     One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular.

CONCLUSION

Tell the truth, do not exaggerate and make sure your privacy settings on your social media accounts are properly adjusted.

If you would like a free initial consultation regarding this topic or any other aspect of your ICBC claim contact Peter Buxton at pbuxton@panlegal.ca or 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc

What Are the Two Types of Claims That I May Have?

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by Peter Buxton, trial lawyer

If you qualify for insurance coverage with the Insurance Corporation of British Columbia and you have been injured in an accident that is not your fault you may have two types of claims:

  • A Tort Claim against the person who caused the accident, and
  • A Part VII Claim arising from the Regulations of the Insurance (Vehicle) Act.

Your Tort Claim

In civil law jurisdictions like B.C. a tort is a civil wrong.  Negligence is a type of tort. If you can prove that you have suffered injury as a result of the negligence of the person who caused the car accident, you can advance a tort claim.  The claim is made against the other person personally and if they have valid insurance with ICBC they will be provided with a defence through a lawyer appointed and paid for by ICBC.

In addition to proving liability you will be required to prove your damages arising from your injuries.  There are several heads of damages discussed in an earlier blog post.

Your Part VII Claim

Your right to pursue a Part VII Claim is a statutory right set out in Part VII of the Regulations to the Insurance (Vehicle) Act of B.C.  Hence the name.  That part of the Regulations defines the so-called “no fault benefits” to which you may be entitled.  You are entitled to them regardless of fault for the accident.  Even if you caused the accident, and if you have not breached your insurance coverage (for instance by driving while impaired), you may be entitled to receive benefits for coverage of reasonable medical and rehabilitation expense, partial wage loss indemnity, homemaker benefits to pay for someone to come in to your home to help if you are disabled and death benefits payable to your surviving spouse or children.

Reporting Your Claim to Dial a Claim

As soon as possible after your accident you should call the ICBC Dial a Claim service or go online and report your claim. When you do so, do not discuss liability for the accident or things that others may have told you about how the accident happened.  If you were injured in the accident make sure to report your injuries and state that you are making a claim for them and any property damage to your vehicle.

Should I Give a Statement to ICBC About the Accident?

As part of the reporting process you may be asked to take your vehicle to an ICBC Claim Centre and speak with an adjuster about the accident.  Once there, you may be asked to sign certain forms and give a statement about how the accident happened and what your injuries are.  Be aware that most often this statement will be written down and you will be told that you need to sign it.  There is no obligation at law for you to provide a signed written statement to ICBC at the commencement of your claim.  However, if you are making a claim for Part VII no fault benefits you may have to provide a statement and abide by certain time limits.  But, you do not have to sign the statement.

Section 97 of the Regulations to the Insurance (Vehicle) Act says that

(1) Where an accident occurs for which benefits are provided under this Part, the insured shall

(a) promptly give the corporation notice of the accident,

(b) not later than 30 days from the date of the accident, mail to the corporation by registered mail, or deliver to the nearest claims centre of the corporation, a written report on the accident with particulars of the circumstances in which the accident occurred and the consequences of the accident, and

(c) within 90 days from the date of the accident furnish the corporation with a proof of claim in a form authorized by the corporation.

(2) The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

Ideally you should seek out and retain a lawyer to assist you in providing a statement.  If your lawyer writes the statement and sends it to ICBC on your behalf, then ICBC and the opposing party cannot use the statement against your interest in any subsequent court action on your claim.

Take advantage of free initial consultation services offered by many personal injury lawyers to discuss these issues.

If you have any questions about this post or relating to your motor vehicle accident or injuries contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc