Written by Shad Chapman, Olivia Brassard & Julia Pratt

July 5, 2023

Social media evidence can be instrumental in challenging the credibility of personal injury plaintiffs. Where a party claims to be injured, disabled, or suffering emotional trauma from their involvement in an accident, a plaintiff may be discredited through photos, videos, messages, and usage patterns on social media platforms. In Sports Liability cases, social media from before the accident may be useful for expert analysis where inadequate training, coaching, equipment maintenance or other such allegations are made. We recently employed many such social media-sourced videos in our expert reporting on a Sports Liability case to show that the athlete had received significant progressive training on the skill in question prior to the injury event such that the injury was not the result of any negligence by our client.  A few of the popular platforms for locating useful evidence include Facebook, Instagram, VSCO, Twitter, TikTok and LinkedIn.

Consider the case of a car accident victim in Kaiser v Williams, 2015 BCSC 646, where the Plaintiff claimed she could not do housekeeping or chores for two years after the accident, and could not enjoy the recreational activities she previously was able to do, such as dancing, jogging, boating, and wake surfing. When a large number of photos surfaced on her Facebook showing her dancing, jumping, and wake surfing post injury, the trial judge accepted the photo evidence stating that “the sheer volume of photographs and activities combined with the complete absence of any suggestion of pain or discomfort or social withdrawal” justified its admissibility.[1] Her damages were significantly reduced as a result of the Facebook evidence. 

There are both Federal and Provincial level statutory provisions to consider in the admissibility of social media evidence in Canada: the Canada Evidence Act, RSC 1985, c C-5 and the Alberta Evidence Act, RSA 2000, c A-18.[i]

Courts have previously affirmed that Facebook posts and messages fall within the scope of an “electronic document” and that smartphones and other computing devices fall within a “computer system” as defined under the Statutes.[2] Facebook is owned by Meta Platforms Inc., and it can be safe to assume that other platforms owned by the company, such as Instagram and WhatsApp, can also be deemed to fall within this scope. Additionally, many other social media platforms that perform almost identically to that of Meta Platforms can likely be looped into that scope in future cases.

Under the Alberta Evidence Act, the rules essentially state that electronic records are admissible so long as they are relevant and material and meet all other rules of admissibility. Where a party seeks to admit electronic documents as evidence, they have the burden of proving the document’s authenticity. This can be done through affidavit evidence, though literature on the topic indicates that best practice is to retain the metadata on all electronic records obtained in order to establish that they have not been tampered with. And, as with surveillance, evidence cannot be obtained in a deceptive manner, for example, posing as someone else to “friend” someone on their social media account. 

Under rule 5.13 of the Alberta Rules of Court, Alta Reg 124/2010, one may receive production from third parties to litigation, including data on deactivated profiles. One obstacle is the ability for social media servers to be located anywhere in the world. Canadian courts will need to ask a foreign court to produce documents if the server is located outside Canada.

Once social media evidence is properly admitted at trial, it remains for the Court to decide the weight to be placed on the evidence. Courts are not naïve to the idea that we tend to show only the highlights of our lives on social media. In DeWaard v Capture the Flag Indoor Limited, 2010 ABQB 571, for example, the plaintiff alleged to have suffered significant injuries to his foot after falling in a laser tag facility. He alleged that his injuries, which included a foot fracture, continued to cause ongoing pain and discomfort and impeded his ability to engage in an active lifestyle. At trial, defence counsel relied on photos taken from the plaintiff’s Facebook page which showed him riding a mountain bike, fishing, rollerblading, and camping among other activities. Justice Strekaf allowed the photos to be admitted into evidence, but held that, while the social media evidence was inconsistent with the plaintiff’s allegations, it was not so inconsistent as to raise significant issues with credibility. In particular, Justice Strekaf emphasized that posts on social media are not always reflective of reality:

“ While Mr. DeWaard's Facebook profile is not completely consistent with his evidence at trial, I am prepared to accept that Facebook profiles may contain an overly positive perspective regarding one's abilities and interests or a certain amount of puffery.”

In DeWaard, given that the plaintiff’s reporting was consistent with the available medical evidence, the Court did not place significant weight on the photos admitted from the plaintiff’s social media profiles.

Conversely, some Justices may choose to place significant weight on social media photo evidence admitted. In Cikojevic v Timm, BCSC 74, the plaintiff was injured in a car accident and sought rehabilitation damages that she claimed she could not afford. However, approximately 600 photos from her Facebook account were brought forward, where she was golfing, travelling, snowmobiling, rock-climbing, and participating in other social activities. The justice concluded that these activities all had a cost, and that if she could afford to participate in those activities, she should be able to allocate funds accordingly to her rehabilitation. Her application for an advance of $36,000 on damages was denied.

Courts have allowed the admissibility of social media evidence, even where the account was shut down during the course of the lawsuit (a common tactic of plaintiff firms is to recommend their client close their social media accounts while the case is in litigation). In Terry v Mullowney & Terry v Sinclair, 2009 NLTD 56, the plaintiff was seeking damages arising out of two motor vehicle accidents, claiming that his social life had been severely curtailed by his accident injuries. Justice James questioned the plaintiff’s credibility after he was cross-examined about his shut-down Facebook account. The plaintiff stated that he shut down the account because he didn’t want “any incriminating information” in court. While active, his account was accessible to any member of the public, and showed he had a full and active social life, appearing to host parties, attending weekend outings at summer cabins, drinking alcohol, smoking marijuana daily, and having a number of friends he communicated and socialized with on a regular basis. Justice James believed he would have been left with a very different impression of his social life had this information been brought forward. Justice James made an inference that it was likely the account contained information which would have damaged his claim.[3]  

Similarly, courts have allowed for social media evidence even if the account is set up as private. In Isacov v Schwartzberg, 2018 ONSC 5933, the court allowed the defense to access posts behind an account’s privacy wall, as access to relevant evidence “in the present technological environment” outweighs the expectation of privacy.[4] As long as the posts are relevant and material to the lawsuit, a plaintiff may be ordered to produce them regardless of their privacy settings.

When gathering social media evidence, it’s important to consider due diligence. Involving experts in the collection of data can create a better log and preserve the metadata associated with the posts or messages you are collecting. As described above, metadata can be important to help the validity of social media evidence, as this proves it was not tampered with, and it may be wise to record the date of the capture and include URL data. Additionally, and especially with younger plaintiffs, they may be constantly updating and posting on their social media sites, and it’s important to keep an evolving record, as it could create a significant impact on a case down the line.

Other cases of social media admissibility in Alberta include M.J.M v A.D., 2008 ABPC 379 and D. (G.), Re 2014 ABQB 469, where the court allowed Facebook and YouTube evidence into evidence.

In summary, social media evidence is allowed at trial, pending its relevance and rules of admissibility. The most important thing to bear in mind is the need to authenticate the evidence and that it has not been tampered with and the use of appropriate experts to gather the evidence and preserve the metadata is strongly recommended.

Citations

[1] Kaiser v Williams, 2015 BCSC 646 at para 134

[2] R v Ball, 2019 BCCA 32 at para 67.

[3] Terry v Mullowney & Terry v Sinclair, 2009 NLTD 56 at paras 102-105.

[4] Isacov v Schwartzberg, 2018 ONSC 5933 at para 36.

[i] The Canada Evidence Act contains several provisions dealing with admissibility of electronic documents. Under the Evidence Act, as per Section 31.8, an electronic document is considered:

Data that is recorded or stored on any medium in or by a computer system or other similar device that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout, or other output of that data. 

The Canada Evidence Act also defines what constitutes a computer system, as per Section 31.8: 

Computer system means a device that, or a group of interconnected or related devices one or more of which,

(a)           Contains computer programs or other data; and

(b)           Pursuant to computer programs, performs logic and control, and may perform other function.

Questions? 

Should you have any questions with respect to this bulletin, or if you would like more detailed information related to coverage concerns, please contact:

Shad Chapman, Partner, Practice Area Leader (Litigation)

780.497.4840

schapman@brownleelaw.com