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w w w . C A N A D I A N L a w y e r m a g . c o m F e b r u A r y 2 0 1 5 41 personal data could become a slippery slope, and there's no reason to think these devices won't become targets for hackers as well. "Most of our privacy rules are in the context of commercial situations," says Hayes. "So when you get into the realm of personal injury our personal information laws don't apply to those things. The Court of Appeal on intrusion upon seclusion aside, there isn't a general right of personal privacy of individuals and a lot of people don't realize there isn't really a restriction on me using the personal information of some individual for non-commercial purposes even without their consent." It's perhaps too early to tell how much of an impact the use of Fitbit data will have on personal injury claims. "On the one hand I applaud this law firm in Calgary for taking a unique approach," says Marc Flisfeder, an associate in the personal injury practice at Lerners LLP. "I query how beneficial the data will be and in particular the way the data is being analyzed; I think it would be more helpful at mediation as opposed to a trial." Flisfeder suggests there are also some evidentiary issues that could arise. "For example, they are using Vivametrica to analyze the data. That's similar to demonstrative evidence where you're assessing whether it is admissible. You have to look at whether it is a fair depic- tion of the facts and evidence, which is the issue with any assessment tool. You need to look at whether you are comparing a plaintiff of similar age and gender and where are they getting that data — ultimately it's being used as a baseline." Mark MacNeill, a partner and personal injury lawyer with Brauti Thorning Zibarras says a Fitbit is "just another tool in the basket, but I don't think it's revolutionary because you're still going to need to lead other evidence and use it in combination. Everybody is searching for that objective thing. It's unfair to say the defence side is com- pletely cynical but they will probably have legitimate questions about its use. "If I was going to use it effectively I would use it as a component and make the data available to both sides and say it's just another tool like an MRI or CT scan. It's another piece of data to inter- pret. But it has to be explained right to a jury. If the technology is relatively straightforward and not expensive it can be used on a broader scale. The company that provides it is the one that will have to back things up. It will be interesting to see how the courts treat it." A new legal powerhouse. Highly regarded litigators Marie Henein and Scott Hutchison are Fellows of the American College of Trial Lawyers, members of the Supreme Court Advocacy Institute and authors of frequently cited texts. They have been recognized for their excellence in trial and appellate advocacy, appearing frequently at the Supreme Court of Canada and the Ontario Court of Appeal. Strategic and creative thinking. Their entire team of outstanding lawyers offers experience in criminal, quasi-criminal, regulatory and cross-border litigation. More experience. More defence. hhllp.ca P OW E R I N E X P E R I E N C E . HeneinHutchison_CL_Feb_15.indd 1 2015-01-14 1:44 PM

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