Facebook in the News

Earlier this week the CBC’s “The National”, with Peter Mansbridge, reported on a young woman in Montreal who has been on leave from her job for the last year and a half after she was diagnosed with major depression. The report indicated that the woman’s disability sick leave benefits were cut off because her insurance company had found photos she had posted on Facebook showing her out nights at her local bar with friends and on holiday to sun destinations.

The use of Facebook as evidence to prove or disprove a claimant’s alleged disabilities and injuries is not new. Several judges in Ontario have granted Orders requiring plaintiffs to produce their Facebook content including photos and/or videos.

In this particular instance we only know the information which was reported in the news. The CBC seemed to suggest that people should be careful about what they post on Facebook and further that it might have been inappropriate for the insurer to use the photos and information the claimant posted on her Facebook pages against her.

The other side of the story, however, is that an insurance company has the right not to make payments to someone who does not qualify for them. This woman was claiming she could no longer work because of major depression and was asking her disability insurer to pay replacement income benefits so she did not have to work.

Disability insurance policies are designed to protect individuals from a loss of income in the event of serious illness or injury. The insurance company has a right and obligation to the shareholders of the insurance company to ensure it is not making payments to fraudulent claimants. I have no idea if the woman in the CBC news story is a legitimate claimant or a fraudster but I do know that there are some fraudulent claimants in society who will allege illness or injury so they can receive compensation and not have to go back to work.

It seems to me that if a person is suffering a mental or psychological disability such that they cannot even work then it seems to make sense that they should be so disabled that they could not go out partying at their local bar or taking sun destination vacations. Isn't that common sense?

I am not an expert in psychology and such an expert would have to say whether this makes sense or not in regard to this particular woman.

No one is suggesting that an injured or disabled person should not be entitled to their long term disability insurance benefits. But a person has to be disabled. It is not enough that a person is a little depressed and does not want to go to work anymore.

If individuals are willing to post photos and videos of themselves on Facebook, shouldn’t insurance companies be able to access that information to weed out fraudulent claims? The result will be reduced premiums for the rest of us.

Changes to the Rules of Civil Procedure - Part 4

Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 4 of our review of the amendments.

A new rule has been introduced which limits the time for discovery to seven hours total, regardless of the number of parties to be examined. Parties may extend the time for discovery by consent, or if there is a dispute, a court may grant leave on a motion. There are both positives and negatives to this new rule. It may encourage counsel to be prepared for discovery and succinct in their questioning, and in many cases it is possible to complete discovery in only one day. There are some cases, however, where due to the number of parties or documents, or the complexity of the case it is not possible to complete discovery in only one day. The hope is that counsel will cooperate in such situations. Unfortunately there may be an increase in motions where disputes arise over this issue. I would not expect judges to look favourably upon having to adjudicate such procedural disputes and it may be that after a few initial decisions, counsel take a more practical approach.

Our previous post discussed r. 29.1, which requires parties to agree on a discovery plan. Where the length of discovery is likely to be an issue, it is a good idea to deal with this issue at that point to avoid later disagreements.

Changes to the Rules of Civil Procedure - Part 3

Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 3 of our review of the amendments.

In our last post we discussed r. 29.2, which introduces a proportionality component into discovery. The rules have also been amended to change the test for disclosing documents. The current test is that parties are required to disclose all documents “relating to any matter in issue”. The case law has developed to define this test as anything having a “semblance of relevance” must be disclosed.

The amendment to r. 30 changes the wording: parties must now disclose documents “relevant to any matter in issue”. Until courts have weighed in on what exactly the change from “relating” to “relevant” means, there is some uncertainty. It seems that a relevance test is narrower than the “relating” test, but perhaps the aim is to merely codify the existing “semblance of relevance” test.

Supreme Court Dismisses Malicious Prosecution Action Against Crown Attorney

In our practices we often represent municipalities and the Crown in civil litigation. Litigation against police forces and prosecutors seems to be increasing, including actions alleging malicious prosecution. The Supreme Court recently released a case on malicious prosecution which is of interest to those defending Crown Attorneys in such actions. The results are good news for Crown Attorneys. The Supreme Court seems to be attempting to strike a balance between allowing Crown Attorneys to perform their jobs on one hand, and preventing abuse of the system on the other.

In Miazga v. Kvello Estate, 2009 SCC 51, the plaintiffs were accused of sexually assaulting children in their care. The allegations were sensational, including ritualistic abuse and as many as twelve different adults involved. The charges were resolved in the plaintiffs’ favour when Crown Attorney Miazga entered a stay of proceedings prior to trial. The children subsequently recanted their allegations.

The Supreme Court reaffirmed the four requirements for a malicious prosecution action. The plaintiff must show the proceeding was:

1) initiated by the defendant;
2) terminated in favour of the plaintiff;
3) undertaken without reasonable and probable cause; and
4) motivated by malice or a primary purpose other than carrying the law into effect.

Justice Charron affirmed that decisions made by Crown Attorneys pursuant to their prosecutorial discretion are generally immune from judicial review. It is only when a Crown steps out of his or her role as a “minister of justice” that immunity is lost.

Although prosecutorial immunity is not absolute, there is a high standard in order to succeed in a malicious prosecution action against a Crown Attorney. In order to meet the malice requirement, more than recklessness, poor judgment or even gross negligence is required; it must be an abuse of prosecutorial power or a fraud on the process of criminal justice.

The Court dismissed the action as the plaintiffs had not proven the required elements.

Insurance Adjuster's Documents and Litigation Privilege

Insurance defence counsel routinely put most, if not all, documents created by an insurer in its investigation of a claim in to schedule B of the insurer’s Affidavit of Documents. Defence counsel take the position often that these documents are subject to litigation privilege. Plaintiff’s counsel do not often object, but increasingly are requesting copies of these documents.

A recent motion heard by Justice Ferguson of the Ontario Superior Court of Justice addressed this issue in Kavanagh v. Peel Mutual Insurance, [2009] O. J. No. 4349. Justice Ferguson helpfully reviewed the applicable law of litigation privilege. The seminal case in this area of the law is the Supreme Court of Canada decision in Blank v. Canada in which the dominant purpose test was adopted. Subsequently, judges of the Ontario Superior Court of Justice have applied a two step approach for the assertion of litigation privilege:

1) Whether litigation was a reasonable prospect at the time the document was produced, and
2) If so, whether the dominant purpose for the creation of the documents in question was to assist in a contemplated litigation.

Further, Justice Ferguson summarized the law from earlier court decisions and indicated that litigation privilege cannot be founded on a suspicion of the possibility of litigation. Justice Ferguson went on to consider whether disclosure of documents may be granted if a plaintiff can show actionable misconduct prima facie and concluded, applying the judgment in Blank v. Canada, that it is possible but that the plaintiff must put evidence before the court of such actionable misconduct.

When investigating claims, insurers need to be aware that whatever they put in to their file may be ordered to be produced to the opposing party in later litigation. Their investigation file is not automatically protected by privilege unless litigation was a reasonable prospect at the time the document was produced and if the dominant purpose for the creation of the document was to assist in the contemplated litigation. Of course once legal counsel is retained on a file, the documents created for communication with legal counsel will be protected by solicitor-client privilege which is arguably a higher or stronger type of privilege.

Changes to the Rules of Civil Procedure - Part 2

Substantial changes to the Rules of Civil Procedure come into effect January 1, 2010. This is part 2 of our review of the amendments.

In our last post we discussed the introduction of the discovery plan. In addition to aiming to increase efficiency in the discovery process, the new rules emphasize proportionality. Rule 29.2 is a new rule which introduces proportionality into discovery. In making production orders, a court will analyze a number of factors, such as whether answering a question or producing a document would:

1) require an unreasonable amount of time;
2) create an unjustified expense;
3) would cause undue prejudice;
4) would unduly interfere with the orderly progress of an action;
5) result in an excessive volume of documents; and
6) whether the document is available from another source.

These criteria could be problematic. It seems to me that these factors create room to argue that relevant documents need not be produced; for example, does this allow a plaintiff with a lengthy pre-accident history to argue the records do not have to be produced because there is an “excessive” amount of them? There will be disputes and hopefully judges will apply a common sense application to r. 29.2.

Ontario Government Proposes New Auto Insurance Options

According to The Globe and Mail, the Ontario government is proposing to allow consumers to purchase less auto insurance coverage in order to keep down their auto insurance premiums.

Proposed changes include:

- lower the minimum medical and rehabilitation coverage for auto insurance to $50,000 from the current $100,000;
- adding a new deductible for property damage; and
- removing an insurer's right to an assessment from their own doctor if they disagree with the findings of the insurance company's health provider.

Sidewalk Non-Repair

A recent decision of Justice Matheson of the Ontario Superior Court of Justice in Hamilton found that a depression in a sidewalk of 5/8 of an inch does not constitute a state of non-repair, Anderson v. Hamilton, [2009] O.J. No. 4358.

The plaintiff had tripped over a small depression in the sidewalk and fell, breaking her wrist. The court confirmed that each case of non-repair of sidewalks is governed by its own factual basis and the affirmed the traditional formulations that a Municipality is "not an insurer" of anyone walking on its streets and that a Municipality does not have to keep its sidewalk as "smooth as a billiard table".

Further, the court held that the City of Hamilton did have a regular inspection routine for its sidewalks. The City inspects its sidewalks in Hamilton once a year. The court held that this was more inspection than some courts had called for, noting that in some cases inspections every three years have been acceptable. The City of Hamilton therefore was held to have satisfied the duty placed on it by having regular inspections.