FEATURE
20 www.lawtimesnews.com
Surveillance and social
media in personal injury
Ontario Court of Appeal provides guidance on use of Schedule B documents,
including Facebook and surveillance, at personal injury trial
ALTHOUGH THE ONTARIO Court of
Appeal found that surveillance evidence
excluded at a personal injury trial was not
so significant as to make a difference as to
damages, it was a "hollow verdict" for the
defence in the case with some lessons about
social media as evidence.
Tanya Nemchin had alleged disabling
post-traumatic stress disorder following
a car crash and was awarded $700,000 by
a jury. The main issue at trial was whether
her PTSD had been caused by the collision
and was significant or whether it resulted
from an earlier sexual assault. At issue on
appeal was the exclusion of surveillance and
Facebook evidence by the trial judge.
On Facebook, the appellate court found
that the trial judge didn't make a mistake
in excluding the evidence. And although
it found the surveillance tapes had been
FOCUS ON PERSONAL INJURY
incorrec tly excluded, it concluded that
the e xclusion would not have affec ted
the verdict.
"I think what's interesting is that the
trial judge took such a sweeping approach
in terms of excluding all the surveillance,
and the Court of Appeal basically said the
trial judge shouldn't have been so sweeping
in excluding all surveillance," says Stephen
Birman, a plaintiff-side personal injury
