IN THE SUPREME COURT
OF BRITISH COLUMBIA
Citation: | Cui v. Metcalfe, |
| 2015 BCSC 1195 |
Date: 20150427
Docket: M132518
Registry: Vancouver
Between:
Candace Liu Cui
Plaintiff
And
Michael Joseph Metcalfe
Defendant
Before: Master MacNaughton
Oral Reasons for Judgment
In Chambers
Counsel for | S.R. Lerner |
Counsel for | J.W.C. Fearon |
Place and | Vancouver, B.C. April 16, 2015 |
Place and | Vancouver, B.C. April 27, 2015 |
[1]
THE COURT: The plaintiffs claims in this
action arise from injuries she suffered in an August 15, 2011 motor vehicle
accident for which the defendant has admitted liability.
[2]
The plaintiff is a
33 year old electrical engineer. Following the accident, she was off work for
more than two months. She gradually returned to work in October 2011, and was
back full-time in November of that year. Since then, she has not missed any
accident-related time from work.
[3]
She was first
examined for discovery on September 12, 2014, and a jury trial is set for five
days commencing June 1st this year.
[4]
Among the
continuing injuries the plaintiff claims are injuries to her neck and back,
which have resulted in chronic intermittent pain, particularly in her lower
back. She says those injuries have affected her ability to engage in the
highly-athletic lifestyle she was involved in prior to the accident.
[5]
Many of her social
connections were associated with her athletics, and she alleges reduced
enjoyment of life. In addition, she says that her continuing problems have
affected her employment capacity, including restricting her from pursuing
employment opportunities she would have pursued but for her injuries. She also
claims for reduced housekeeping capacity.
[6]
For many years
prior to the accident, the plaintiff had been actively involved in circus
training in which she used aerial silks, aerial hoops and poles for dancing and
various other circus equipment for acrobatic moves. I would describe the
pictures put in evidence by the defendant as showing the plaintiff engaged in
the type of vigorous acrobatic and dance activities often seen in Cirque du
Soleil shows.
[7]
In this
application, relying on Rules 1-3, 7-1(10), 7-1(11), 7-1(14), the defendant
seeks an order that the plaintiff be required to produce all photographs and
videos of her participating in the following activities from August 15, 2011,
until present:
a) pole dancing,
silk dancing, aerial dancing, Tough Mudder competitions and circus activities;
b) all videos of
the plaintiff participating in pole dancing, aerial dancing, silk dancing and
circus activities from August 15, 2009, until August 15, 2011,
c) all
relevant documents, all relevant photographs, comments and status updates from
her Facebook account; and finally
d) all relevant
photographs from photography shoots from August 15, 2011, until present.
[8]
If the plaintiff is ordered to produce the records, the defendant also
seeks to examine her about them at a further examination for discovery. The
plaintiff has already agreed that she will attend a further examination for
discovery to answer questions outstanding from her last discovery and with
respect to documents produced since then.
[9]
The plaintiff opposes production and says that, on the bases of
proportionality, probative value, potential prejudice, and her privacy
concerns, she should not be required to produce the documents requested.
[10]
I propose to first deal with the defendants application for photographs
and videos. In support of his application, the defendant relies on a number of
photographs and a video his counsel located on the internet which appear to
depict the plaintiff, after the accident, engaging in difficult physical
activities, including silk dancing, aerial dancing, skydiving, Tough Mudder
obstacle course racing, and pole dancing.
[11]
The defendant says that the plaintiff did not disclose these photographs
prior to her examination for discovery and had an obligation to do so because
they are documents which assist in proving or disproving a material fact, that
being the extent of the plaintiffs post-accident capacity.
[12]
In support of that proposition, the defendant relies on Justice Adairs
reasons in Ahadi v. Valdez, 2013 BCSC 714. At para. 154 and 157, Justice
Adair discusses an evidentiary issue which arose at trial. While the
plaintiffs boss was testifying, plaintiffs counsel showed her email
communications which he had just received from his client. Justice Adair
ordered them to be produced and directed the plaintiff to attend a further oral
examination for discovery on their content.
[13]
At para. 154 of her reasons, Justice Adair said that the issue could
have been avoided if plaintiffs counsel had inquired about the existence of
electronic documents in advance of trial. She also said that defendants counsel
had an opportunity to pursue the matter of electronic documents, such as
Facebook postings and email, during the plaintiffs examination for discovery
but did not do so.
[14]
I do not agree with the defendants submission that Ahadi stands
for a general proposition that a plaintiff who claims damages for physical
injuries has an obligation to produce electronic documents at the first stage
of the discovery now contemplated in Rule 7-1(1). Photographs and videos of the
sort sought here depict the plaintiffs activities at a moment, or moments, in
time. They do not necessarily prove or disprove a material fact. In the absence
of some evidence that photographic records may contradict the plaintiffs other
evidence, they are not necessarily disclosable in the first instance.
[15]
In Fric v. Gershman, 2012 BCSC 614, Master Bouck dealt with a
similar application in an action arising from a motor vehicle accident. She
helpfully reviewed the earlier cases considering applications for production of
photographic evidence on social media sites. She distinguished those cases in
which disclosure was ordered from those in which it was not. She concluded, at
para. 26, that the factor which distinguished the cases was whether the
plaintiff claimed physical injuries arising from an accident as opposed to
cognitive or psychological injuries. She said:
When physical impairment is
alleged, the relevancy of photographs showing the plaintiff engaged in
activities that require some physical effort seems rather clear.
[16]
In Fric, Master Bouck concluded that some of the plaintiffs
photographs ought to be disclosed. In para. 55 of her reasons, she makes it
clear that she is ordering the disclosure under Rule 7-1(14), at the second
stage of disclosure contemplated in the new Rules.
[17]
An order under Rule 7-1(14) follows counsel engaging in the demand and
response process contemplated in Rules 7-1(10) to (13), during which the
parties positions are clarified. As described by Justice Voith in XY, LLC
v. Canadian Topsires Selection Inc., 2013 BCSC 584:
[22] The salutary objects of Rule 7-1(10)-(14) are many and
varied. Several of these objects were identified by Justice Fitch in Lit v.
Hare, 2012 BCSC 1918:
[67] The Rule is designed to
promote dialogue between the parties, informal resolution of document
production disagreements where that is possible and, where it is not, targeted
litigation that focuses on those well-defined issues that remain contentious.
The Rule operates to restrain the impulse to litigate document production
issues as a course of first resort where those issues might be resolved through
discussion, including by requiring the parties to articulate and defend their
respective positions. In my view, the Rule is also designed to facilitate the
adjudicative process by narrowing the issues and argument and particularizing,
to the extent possible, the documents or categories of documents sought before
an application is made. As Master Bouck observed in Balderston, at para.
29, in the context of the SCCR:
The intent of Rule 7-1(11) is to
inform the opposing party of the basis for the broader disclosure request in
sufficient particularity so that there can be a reasoned answer to the request.
The Rule allows the parties to engage in debate or discussion and possibly
resolve the issue before embarking on an expensive chambers application.
[23] To the various positive
functions that were described by Justice Fitch and that are fostered by Rule
7-1(10)-(14), I would add that the exchange of correspondence which is required
to take place between counsel under the Rules, and which inevitably forms a
part of the application record, will often be extremely useful to the chambers
judge or master who hears the production application. That correspondence
serves to explain and crystallize the respective positions of the parties. In
addition, the process described by Justice Fitch – discussion between counsel
and winnowing the proper scope of expanded production – is consistent with the
overarching goal of proportionality under the Rules
[18]
I note that none of that exchange under Rule 7-1(10) to (13) appears to
have occurred in this case. What occurred is this application and response. However,
because the plaintiff has not objected to the defendants application under
Rule 7-1(14) on the basis that formal demand was never made, and because the
trial date is fast approaching, I will consider whether to exercise my
discretion to order production of the photographs in this case.
[19]
At her September 2014 examination for discovery, the plaintiff gave
evidence that her back and neck had completely healed, except for some
lingering neck and upper back pain which she experienced intermittently every
few weeks. Beginning in 2012, her low back pain improved, but it had flared up
at least weekly in the two months before her discovery. She said that she no
longer experienced cognitive fogginess or visual disturbance, had no memory
loss issues apart from greater difficulty in memorizing numbers, and no longer
suffered from dizziness, loss of balance, nausea, frequent light sensitivity or
sensitivity to loud music. In addition, she gave evidence that her lingering
mood changes, occasional persistent poor attention and reduced concentration were
as a result of flare-ups of her back and neck pain rather than the persistent
effects of a mild traumatic brain injury. Her driving anxiety had fully
resolved by the date of her examination for discovery.
[20]
Counsel for the plaintiff has indicated that the matters for trial will
be the proper measure of the plaintiffs general damages, the extent to which a
claim for future care is reasonable and medically justified, and whether the
plaintiff suffered a loss of capital assets due to her reduced sitting
tolerance and lifting capacity.
[21]
Her claim for general damages is based on reduced tolerances and
impairments for certain physical activities, not from any allegation that she
is unable to participate in such physical activities. Plaintiffs counsel
believes that the general damage award in this case will be less than $200,000.
[22]
The evidence is that the plaintiffs injuries, the frequency of her low
back and neck pain, and her general tolerance and impairments have not changed
since her September 2014 discovery. She continues to be employed full-time as
an electrical engineer and has not missed any more time from work. Consistent
with the plaintiffs evidence at her discovery, the plaintiffs pole and group
fitness instructor provided evidence that although the plaintiff continues to
participate in pole and fitness classes, her participation has diminished since
the accident.
[23]
On the issue of proportionality, the plaintiff says that she has more
than 3,600 photographs posted on her personal Facebook account to which she has
restricted public access through her privacy setting. She also says that she
has hundreds, or possibly thousands, of additional photographs on her phone and
computer hard drive. She does not say how many of these photographs were taken
after the accident, nor how many of them depict her engaged in physical
activity.
[24]
In this case, the photographs and video already obtained by the
defendant from the internet do not contradict the plaintiffs examination for
discovery evidence. That is because the plaintiff does not say that she can no
longer participate in her earlier activities, just that she does so with less
intensity and less frequency. Further, although some of the commentary suggests
that the photographs were posted recently, they were not necessarily taken
recently.
[25]
As evidence of a potential contradiction in the plaintiffs position,
the defendant relies on statements the plaintiff made to her expert physical
medicine and rehabilitation specialist on February 19, 2015. According to the
experts report, the plaintiff said that she had not returned to circus
training on a regular basis. She keeps to pole dancing once a week, at a basic
level, and does not do heavy, strenuous movements, such as inversions or
lifting. She rarely if ever does cardio fitness classes due to a concern about
increasing her pain.
[26]
In addition, the defendant relies on statements made by the plaintiff
during her functional capacity evaluation on February 25, 2015. In the history
and interview findings portion of the evaluation report, the plaintiff reported
pain, stiffness and reduced movement of her lower back, stiffness around her
shoulder blades, stiffness of her neck, stiffness and reduced movement of her
left hip flexor, and pain and reduced movement in her knees, more so on the
left, over the prior three weeks.
[27]
The plaintiff also reported that she had a significant flare-up of her
back pain in February of 2015 which lasted over two weeks and other flare-ups
about every six to eight weeks, which usually improved over one or two days.
[28]
The plaintiff reported that she was unable to do aerial hoops, was
severely limited in her ability to participate in dance and acrobatics with
silk and hoops, and had other moderate and slight limitations in her daily
activities. She described being significantly curtailed in her recreational
activities, which resulted in less enjoyment of life and less involvement with
her circle of friends.
[29]
The functional capacity evaluator concluded that the plaintiff showed
weakness for heavier lifting activities and was significantly deconditioned
compared to her pre-accident high level of athletic function and regular
participation in a demanding exercise program.
[30]
She suggested that the plaintiff would require assistance with seasonal
cleaning, such as moving furniture, washing walls, windows and blinds, cleaning
cupboards, moving heavier boxes and heavier or repetitive garden and yard care.
[31]
The defendant submits that if the photographs and videos he obtained
from the internet were taken after the accident, they depict the plaintiff doing
inversions and lifting or balancing other dancers in formation. In response to
a notice to admit, the plaintiff has refused to admit that the photographs were
taken after the accident or their authenticity.
[32]
I agree with plaintiffs counsel that I should consider proportionality
in determining this application. He makes the point that the defendant already
has more than 40 photographs and that requiring the plaintiff to review
approximately 4,600 photographs and produce what are potentially large numbers
is not warranted in this case. He submits that another 100, 200 or more does
not advance the defendants argument and is not proportional.
[33]
If the plaintiff had responded to the request to admit acknowledging
that the photographs were of her and dating them, I might have been more
persuaded by that position. Not having done so, I have concluded that the
plaintiff should be required to disclose some of the photographs from her
Facebook account or stored on her phone or computer.
[34]
In the interest of proportionality, I limit the order to photographs or
videos of the plaintiff engaged in pole, aerial, silk or hoop dancing, circus
acrobatics and Tough Mudder competitions taken after the accident. There is no
need for her to duplicate pictures taken at the same event. One picture from
each event is sufficient.
[35]
Before disclosure, the plaintiff may edit the photographs to protect the
privacy of others appearing in them unless the photograph depicts the plaintiff
lifting or balancing the weight of another dancer or acrobat. In such case,
only the other dancer or acrobats face may be edited.
[36]
She is to copy those photographs and videos to a CD-ROM or flash drive
identifying, to the extent she can, the location and date of the photograph. The
CD-ROM or flash drive is to be provided to the defendant for his counsels
review. On request, and at the defendants expense, copies of photographs or
videos are to be provided to the defendant.
[37]
In the exercise of my discretion, I decline to order the plaintiff to
produce photographs and videos prior to the accident. Her pre-accident athletic
activities are well documented in her evidence, and I conclude that no
meaningful comparison can be made from point-in-time photographs of pre- and
post-accident activities.
[38]
I also decline to order the plaintiff to produce comments and status
updates from her Facebook account. To the extent that such commentary exists,
its probative value is outweighed by the interest of protecting the plaintiffs
private thoughts and those of third parties who commented on a private Facebook
account with the expectation that their comments would remain private. For that
principle I cite the case of Dosanjh v. Leblanc and St. Pauls Hospital,
2011 BCSC 1660.
[39]
Once the photographs and videos have been produced, I order that the
plaintiff answer questions about them at her continuing examination for
discovery. Because the defendant has already examined the plaintiff on her
physical functioning and activity level since the accident, the defendant is
not entitled to cover those grounds again. Nor is he entitled to cross-examine
the plaintiff as to her credibility. That is not the function of an examination
for discovery. He is entitled to ask her questions about when the pictures were
taken, by whom, and for her description of the dance or other acrobatic moves
depicted and the technique involved and other such related questions.
[40]
In ordering this disclosure and further discovery, the plaintiff is not
precluded from arguing that some or all of the produced photographs are
inadmissible at trial because their prejudicial effect outweighs their
probative value, or on any other ground she seeks to argue.
[41]
Counsel, any clarification required or any further submissions that you
wish to make?
[42]
MR. FEARON: I am just thinking, Your Honour. In regards to photographs
that the plaintiff is going to produce from her Facebook, the defendant is not
entitled to comments on the producible photographs either? So, for example,
often on Facebook it will have a date stamp that shows when it was posted, you
might have someone commenting saying, oh, this was so great, we had so much fun
here. I just want to clarify, even on producible photographs, those comments
are not to be produced?
[43]
THE COURT: They are not to be produced. The plaintiff, to the extent
she can, is to date the photographs but comments are not to be produced.
[44]
MR. LERNER: Your Honour, am I correct in hearing that you ordered that
it would be one photograph of each activity of the ones that you listed?
[45]
THE COURT: Right. Presumably if there was an event like a Tough Mudder
competition at which 40 photographs were taken, then one is to be produced.
[46]
MR. FEARON: Your Honour, is it at the plaintiffs complete discretion
which photograph of an event is produced? My only concern is that there could
be a whole gamut of photographs showing very little activity, a lot of activity.
Perhaps it could be — I do not know if this is possible– but the photograph
showing the most strenuous physical activity. I appreciate, you know, at some
point you are going to be splitting hairs to figure out which one that is, but
I want to make sure that if there is photographs of an event, we are getting
the most relevant photograph that exists that the plaintiff has.
[47]
THE COURT: The plaintiff is going to have to exercise some judgment
with her counsel, but the photographs that I have ordered produced are the ones
that show strenuous physical activity.
[SUBMISSIONS ON COSTS]
[48]
THE COURT: The defence have had some success, not total success, on the
application. The parties did not engage in the required dialogue that might
have resolved the issue without the need for an application. In these
circumstances, each party should bear their own costs.
Master MacNaughton