Social Media in Personal Injury Claims

Social media is becoming an increasingly common form of communication, with Facebook alone reporting more than 1.56 billion daily active users (as of April 2019). Social media platforms offer a convenient means of communication, as well as several other benefits to users. However, as these platforms also serve to preserve a wealth of information, it is important to understand how social media may be used within the context of court proceedings, and how a litigant’s social medial presence may impact their personal injury claim.

Just as social media platforms are becoming more widely accepted by larger user bases across greater sections of society, Canadian courts are also beginning to recognize these services as important sources of information within the context of litigation. In Leduc v Roman, (2009) OJ No 681 (Ont Sup Ct), the Ontario Superior Court found that a claimant’s Facebook postings were considered “documents” within the context of the Rules of Civil Procedure, and could therefore be ordered produced within the context of litigation. Alberta courts have similarly affirmed the use of social media postings as evidence in legal proceedings, and often times placed a heavy reliance on information gathered from these sources.

In DeWaard v Capture the Flag Indoor Limited, 2010 ABQB 571 - a case relating to injuries sustained by a plaintiff while participating in a game of laser tag at the defendant’s facility - the defendant argued that the plaintiff was far less injured than he claimed, and therefore his damages should be assessed at a much lower level. Specifically, the defendant provided evidence obtained from the plaintiff’s Facebook profile, which depicted the plaintiff engaged in various physical activities such as mountain biking, rollerblading, and performing home renovations. Although the Court found that the photographs were relevant information for the purposes of the claim and would be considered, the inconsistencies indicated by those photographs were not fatal to the plaintiff’s claim, as the Court found that “… Facebook profiles may contain an overly positive perspective regarding one’s abilities and interests, or a certain amount of puffery” - essentially acknowledging that social media presentation may not always accurately reflect reality.

Although the use of social media evidence did not significantly undermine the plaintiff’s claim in the DeWaard decision, it nevertheless demonstrates the fact that the Alberta courts recognize these platforms as important sources of evidence and are willing to find such evidence admissible at trial. For this reason, it is important for all plaintiffs to be careful when posting on social media platforms, and mindful of the fact that such posts may be considered by the Court several years down the road, often times without the benefit of context or explanation.

Please do not hesitate to contact the experienced personal injury lawyers at Rodin Law Firm if you have any questions about the implications of social media evidence on your own injury claim. We can be reached online, or by telephone at (403) 216-0385.

Ellie Staniloff