MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 279
While there have been cases where social networking evidence
undermines a plaintiff’s case, courts have recognized that they must be
placed within the context of medical reports and other testimony. In
Mayenburg v Lu, the court put little weight on the defence’s admission of
photographs of the plaintiff hiking, dancing, and bending, noting that the
plaintiff’s claimed not that she could not do these things, but that she
would “feel the consequences afterwards”. 254 The court warned the
defence against trying to create a “straw person who … cannot enjoy life at
all.” 255 In Raun v Suran, the court held, despite admitting a video from
Facebook that showed the plaintiff capable of athletic moves including
jumping out of a pool, that the plaintiff still deserved “fair and reasonable
amount for his pain and suffering and loss of enjoyment of life.” 256
Furthermore, some courts have recognized that a plaintiff who
presents a positive image on a social network may not be putting forward
an image that genuinely reflects their suffering or their actual medical
condition. In Cikojevik v Timm, 257 a BC court found that photographs of
the plaintiff smiling and engaging in activities such as running did not
contradict doctor’s testimony that she suffered from depression and head
injuries. An Alberta court found that Facebook photographs of a man
riding a bike were not persuasive compared to medical evidence about the
painful foot injuries he suffered after falling through a faulty platform
while playing laser tag:
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. 258
Social networking evidence is unlikely to drastically affect reasonable
claims, but those who wish to exaggerate their injuries will face far more
scrutiny. In many cases, the threat of having to divulge personal materials
may be more of a tactical maneuver, in order to acquire a settlement prior
to trial. For example in Sparks v Dubé, where the court ordered the
254
Mayenburg v Lu, 2009 BCSC 1308 at para 40 (available on WL Can).
255
Ibid at para 41.
256
Raun v Suran, 2010 BCSC 793 at para 25 (available on WL Can).
257
Cikojevic v Timm, 2010 BCSC 800 at para 124 (available on WL Can).
258
DeWaard v Capture the Flag Indoor Ltd, 2010 ABQB 571 at para 41 (available on WL
Can).