IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151030

Docket: 13-1935

Registry:
Victoria

Between:

Danielle Wilder

Plaintiff

And:

Tanya Munro and
Carl Munro
doing business as Teneo Management Group and
Nikita Paddock

Defendants

Before:
Master Bouck

Reasons for Judgment

The Application

[1]            
This is a fast track personal injury action set to proceed to trial on
December 14, 2015. The action has been discontinued against the defendant
Paddock.

[2]            
In a notice of application filed September 25, 2015, the Munro defendants
seek an order for production of various documents and records, including photographs
and videos from Ms. Wilder’s social media accounts or platforms. As much
of the relief sought was resolved by consent or adjourned generally, argument was
limited to the following proposed order:

2. The plaintiff, within 7 days, deliver an amended list of
documents:

a. identifying the photographs and
video in her possession and control in which she is featured, identifying them
by location, date and time, if available:

1. participating in dance training,
rehearsals, auditions or competitions from 29 July 2008 to present;

2. attending music festivals since
29 July 2010;

3. socializing between January 2011
and September 2012;

4. on vacation since 29 July 2010;

ii. The plaintiff may edit the photographs prior to
disclosure to protect the privacy of other individuals;

[3]            
The plaintiff opposes the order on the basis that the disclosure sought
is overly broad, disproportionate to the issues to be determined at trial,
invasive to the privacy of the plaintiff and third parties, and unnecessary to
the defence of the claim.

[4]            
For reasons which follow, I accept the plaintiff’s submissions and
dismiss the application.

Facts

[5]            
The plaintiff’s claim arises from a motor vehicle accident which
occurred on July 29, 2010. Ms. Wilder was a passenger in the Paddock vehicle.
Liability for the accident itself is admitted by the Munro defendants.

[6]            
Ms. Wilder was 17-years-old on the date of the accident and about to
enter her last year of high school. The injuries pled in the notice of civil
claim include soft tissue injuries to the plaintiff’s neck, shoulders, back,
hip and legs, bruising, anxiety, lost appetite and depression.

[7]            
Both before and since the accident, Ms. Wilder has pursued a passion for
dance. She has trained in and publicly performed various styles of dance. At
her examination for discovery held in March of this year, Ms. Wilder described
her pre-accident “dream” of moving to Los Angeles and becoming a professional
dancer. That dream has not been pursued as Ms. Wilder says that the accident-related
injuries have negatively impacted her dancing abilities. She claims to have not
danced at all for the first eighteen months following the accident and is now able
to perform hip hop only. During those eighteen months, Ms. Wilder reduced, but
did not altogether eliminate, social interactions. In her own words, the
plaintiff became a different person when unable to dance. Ms. Wilder has been
able to teach dance since the accident, but claims to be restricted in moves
and styles because of her injuries.

[8]            
Since October 2012, Ms. Wilder has been employed as a customer service
representative with Scotiabank. In addition, she operates a home based business
selling skin care products.

[9]            
Like most of her peers, Ms. Wilder maintains a wide variety of social
media accounts. The accounts were discovered by the defence prior to Ms. Wilder’s
examination for discovery and information was gathered from the publicly
accessible content of those sites. That information includes ten separate
videos of the plaintiff dancing in rehearsals or shows in 2013, 2014 and 2015,
photographs of the plaintiff performing dance moves, Facebook status posts
discussing upcoming dance shows and auditions in 2011, photographs and posts
about Ms. Wilder’s attendance at music festivals in 2014, travel related
to the home based business and socializing with friends. Approximately 100
photographs or postings taken from the plaintiff’s social media accounts are
not identified by a specific date or time period. The undated content shows the
plaintiff socializing, dancing or engaged in some other form of physical
activity such as hiking.

[10]        
The information obtained from the plaintiff’s social media platforms was
disclosed by the defendants in their list of documents dated February 27,
2015. However, the defendants asserted a claim of litigation privilege over the
information.

[11]        
At her examination for discovery, the plaintiff was questioned about her
use and the content of the social media platforms but only in general terms.
She was not questioned specifically about the photographs, videos or postings
then in the defendants’ possession. Ms. Wilder was asked at the examination to
preserve the content of her social media platforms and produce much of the
information sought on this application.

[12]        
The defendants’ access to the various social media platforms was
curtailed following the examination for discovery as the plaintiff changed her
privacy settings. This past September, the defendants waived the claim of
privilege over the social media content in their possession.

[13]        
At trial, the plaintiff will rely on a medical legal report from a
physiatrist, Dr. L. McKean. Dr. McKean opines that because of the accident-related
injuries, the plaintiff is limited in her dancing capacity and unable to pursue
a career in that field. Dr. McKean also opines that the plaintiff would
have no limitations in her present line of work.

[14]        
At the defendants’ request, the plaintiff was examined by another
physiatrist, Dr. Paul Winston. Initially, Dr. Winston concurred with
Dr. McKean’s opinion with respect to the plaintiff’s dancing career
limitations. However, that opinion changed when the defendants provided the
doctor with not only 21 separate photographs or videos taken from the
plaintiff’s social media platforms but also surveillance footage taken of the
plaintiff dancing at events held in the spring of 2015. In his subsequently
issued report, Dr. Winston states:

While I do not discount that she
may have experienced pain after her accident, her demonstrated abilities were
far in excess of what I would have expected to see at the time of the
interview. I do not see why she could not push through in her training to follow
her aspirations of dancing full time as a career, based on physical
capabilities.

[15]        
Ms. Wilder estimates that there are more than 3,000 photographs posted
on her social media platforms in relation to the period of disclosure sought in
the notice of application. She denies ever being completely unable to take
vacations, go to music festivals or socialize since the accident. Ms. Wilder
simply acknowledges that she was less socially active in the 18 months
following the accident because of physical pain and discomfort and the limitation
on her dance abilities. She also acknowledges experiencing some ongoing
discomfort impacting her enjoyment of one music festival.

Discussion

[16]        
A party’s obligation to disclose social media content has been addressed
in a number of decisions under the Supreme Court Civil Rules, including Fric
v. Gershman, 2012 BCSC 614; Cui v. Metcalfe, 2015 BCSC
1195; and Dosanjh v. Leblanc, 2011 BCSC 1660. Generally
speaking, the considerations for the court on this type of application include
the probative value of the information sought, privacy concerns, potential
prejudice to the plaintiff and proportionality: Cui at para. 9.

[17]        
All three of the noted cases were personal injury actions. In all three,
the plaintiff’s post-accident physical capabilities were in issue as was the
impact of alleged injuries on the particular plaintiff’s social life. In the
first two cases, disclosure of the plaintiff’s social media content was
ordered; in Dosanjh it was not. While the plaintiff’s circumstances as
described in Cui bear some resemblance to the case at bar, the result
can be distinguished. Like the case at bar, the defence had obtained
photographs, postings, and the like from the plaintiff’s social media platforms.
However, unlike here, the defence was unable to identify the dates of
the photographs or videos and thus correlate the content to either the pre or
post-accident period. The court ordered the plaintiff to disclose additional
social media content and identify the date or time frame of content’s creation.
Of note is that this additional disclosure may not have been ordered had
Ms. Cui provided the dates of the videos, photographs pursuant to the
defendants’ notice to admit: para. 33. Instead, the plaintiff declined to
make any such admissions thus necessitating the chambers application.

[18]        
In terms of the proportionality factors, the plaintiff’s claim is not
complex. There is no debate that this action will proceed to trial under Rule
15-1. The defendants filed the fast track notice and the plaintiff has no
intention of having the action removed from the rule’s operation. The parties
appear to agree that the trial can be completed in three days. While the
plaintiff’s damages are not limited to $100,000, the evidence on this
application suggests that the claim will not greatly exceed that figure, if at
all.

[19]        
The plaintiff is employed with no limitations on her ability to function
at that job. It will be up to the trial judge to decide what compensation, if
any, Ms. Wilder deserves for an overall reduced earning capacity. However,
the defendants’ submissions on this application presume that a career in dance
is financially lucrative and thus the potential award for this capital asset
loss justifies the breadth of the order sought. If this theory was reasonably accurate,
it would be expected that one or both of the parties would wish to remove the
proceeding from fast track.

[20]        
On the question of probative value, the defendants already have in their
possession dozens of photographs and more than ten videos which show the
plaintiff’s physical abilities and social activities in the years following the
accident. I am not persuaded that adding to this collection is necessary to
disprove the plaintiff’s claims. Moreover, the defendants have other evidence
in the form of Dr. Winston’s report to also disprove the plaintiff’s claim
of a lost dancing career.

[21]        
Finally, I agree with the plaintiff that the defendants have failed to
demonstrate the probative value of any photographs or videos depicting the
plaintiff socializing or on vacation. If I am wrong on the question of
probative value, then I find that the production of this information, including
all that would be entailed in protecting the privacy rights of third parties,
is not proportionate to the issues to be determined at trial.

[22]        
Unless otherwise agreed between the parties, costs of the preparation for
and attendance at this application will be in the cause.

                    “C.P.
Bouck”                   

Master
C.P. Bouck