The courts have struggled with how to address social media in the context of a personal injury case. Although the information can be valuable and relevant, it is also private. They have ruled that opposing parties do have the right to access some social media material. However, that right is not without limits. In application to the Supreme Court of British Columbia, the courts further clarified their stance:
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…
The courts stressed the importance of proportionality when deciding whether or not to order a plaintiff to produce otherwise private social media content. This means there is a relation between the amount of content a claimant is expected to disclose and the size of their claim. A claimant bringing a relatively large and catastrophic claim would be expected to provide more access to their private information than a claimant bringing a smaller claim. This makes sense as a larger claim is likely to affect more parts of a claimant’s life and social media content is relevant to a discussion of the effect of an injury on a claimant’s life.
When negotiating with ICBC it is important to be mindful of your rights and obligations when disclosing otherwise private information. You should also be mindful of what is readily available to the public. ICBC does not need a court order to access and use information that is available to everyone.