Established 1996 Serving All of Canada
Telephone:
416-203-9500
 


Newsletters 2009 > February 2009

In this issue:
1. LITIGATION AND THE USE OF FACEBOOK, MYSPACE, FLICKR AND OTHER SOCIAL NETWORKING SITES - USERS BEWARE
2. THE LAWS OF AVIATION: LIABILITY OF THE CARRIER IN THE CASE OF DESTRUCTION, LOSS, DAMAGE OR DELAY TO BAGGAGE.

 

1. LITIGATION AND THE USE OF FACEBOOK, MYSPACE, FLICKR AND OTHER SOCIAL NETWORKING SITES - USERS BEWARE

Popular social networking sites are no longer just for vacation photos and status updates. Lawyers and their clients need to be aware of how access to such sites can be crucial in making their case.

The information and photographs posted on a user's profile on such social networking sites can be invaluable tools in civil litigation. Employers have been using these sites as part of their interview process. Now litigators are getting into the action.

Information on social networking sites such as Facebook can aid in assessing the value of a plaintiff's claim for personal injury damages both at trial and in settlement discussions. It can be extremely useful when dealing with a claimant who claims that their social activities have been compromised.

Recently an Ontario court had to deal with the issue of whether information on Facebook had to be disclosed in the discovery process. In Leduc v. Roman 2009 CanLII 6838 the defendant brought an application to force the complainant to produce the information on his Facebook profile as part of the discovery process. The claimant, Mr. Leduc took the position that that the information was private and that his settings on Facebook only allowed a limited number of friends access to his profile.

The issue arose when Mr. Leduc underwent several medical examinations. During an examination in May, 2006, he advised the psychologist that he was not able to engage in the sporting activities he had enjoyed before the accident. In September, 2007, Dr. Bruun-Meyer conducted a defence psychiatric evaluation of Mr. Leduc. The resulting medical report recorded that Mr. Leduc had told Dr. Bruun-Meyer that he did not have friends in his current area, although he had "a lot on Facebook".

At the same time defence counsel's office conducted a search of Facebook profiles and discovered that Mr. Leduc kept a Facebook account. Mr. Leduc's publicly available Facebook profile showed only his name and picture. Because Mr. Leduc had restricted access to his site only to his "Facebook friends", defence counsel's office was not able to view the content of his site.

Early in June, 2008, the defence moved for several production-related orders, including orders for (i) the interim preservation of all information contained on Mr. Leduc's Facebook profile, (ii) production of all information on the Facebook profile, and, (iii) the production of a sworn Supplementary Affidavit of Documents. The court described Facebook as:

The general evidence described Facebook as a "social website" or, as put by its Terms of Use, "a social utility that connects you with the people around you". As of June, 2008, Facebook had more than 70 million active users. Although originally designed for use by American college students, more than half of Facebook's users now are outside of college, and users over 25 years of age make up its fastest growing demographic.

[18] The site is available for the personal, non-commercial use of its users. Content which users may post on Facebook includes photos, profiles (name, image, likeness), messages, notes, text, information, music, video, advertisements, listing and other content. The sites' "Facebook Principles" indicates that a user may "set up your personal profile, form relationships, send messages, perform searches and queries, form groups, set up events, add applications, and transmit information through various channels."

[19] When a person registers with Facebook, he creates his own profile and privacy settings. Profile information is displayed to people in the networks specified by the user in his privacy settings - e.g. a user may choose to make his private profile information available to others within his school, geographic area, employment network, or to "friends" of "friends". A user can set privacy options that limit access to his profile only to those to whom he grants permission - the so-called "friends" of the user.

[20] Facebook contains several applications. A user can post basic personal information - age, contact information, address, employment, personal facts, relationship status, etc. A user can post Photo Albums; Facebook is the largest photo-sharing application on the Web, with more than 14 million photos uploaded daily. A user can create a "wall", or chat board, where friends can post messages to each other. These postings can be viewed by all friends looking at the webpage, unlike emails which only the recipient can read. A user also can join a Facebook "group", essentially a community based on common interests.

The master of the court (a master is not a judge but is authorized to hear most pre-trial procedural questions) held the defendant was on a fishing expedition and Mr. Leduc was not required to produce the information on Facebook. This decision was appealed. Justice Brown, of the Ontario Superior Court held otherwise. Justice Brown stated:

Where, as in the present case, a party maintains only a private Facebook profile and his public page posts nothing other than information about the user's identity, ... a court can infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook's applications to make personal information available to others. From the general evidence about Facebook filed on this motion it is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail. Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of "friends" with whom they can share information about themselves, and on which "friends" can post information about the user.

[32] A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action. Master Dash characterized the defendant's request for content from Mr. Leduc's private profile as "a fishing expedition", and he was not prepared to grant production merely by proving the existence of the plaintiff's Facebook page. With respect, I do not regard the defendant's request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated "friends" access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.

[33] I do agree with Master Dash that mere proof of the existence of a Facebook profile does not entitle a party to gain access to all material placed on that site. Some material may relate to matters in issue; some may not. Rule 30.06 requires the presentation of some evidence that a party possesses a relevant document before a court can order production. Most often such evidence will emerge from questions asked on a party's examination for discovery about the existence and content of the person's Facebook profile. Where the party's answers reveal that his Facebook profile contains content that may relate to issues in an action, production can be ordered of the relevant content.
Justice Brown held that to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.

Justice Brown allowed the defendant to cross examine Mr. Leduc on his supplementary affidavit of documents regarding the kind of content posted on his Facebook profile.
Other courts had previously dealt with social networking sites and use of information from such sites. In Cikojevic v. Timm, 2008 BCSC 74 the court refers to information on Facebook but does not provide analysis as to how that information was before the court. The reference in the case simply states: "Photographs downloaded from her Facebook page show her participating in golf, snowboarding, rock-climbing, travel and other social activities all of which have a cost. There are, apparently, 600 such photographs on her Facebook page."

In Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.) the case also involved a claim for damages resulting from injuries suffered in a car accident, including a claim regarding loss of enjoyment of life. The plaintiff had posted photographs on her publicly-accessible Facebook profile showing her engaged in various social activities. The defendant moved for production of any photographs maintained on the private Facebook profile over which the plaintiff had control. In considering whether the defendant's request represented a mere fishing expedition or whether relevant photographs likely were posted on the private site, Justice Rady stated:

[17] It seems reasonable to conclude that there are likely to be relevant photographs on the site for two reasons. First, www.facebook.com is a social networking site where I understand a very large number of photographs are deposited by its audience. Second, given that the public site includes photographs, it seems reasonable to conclude the private site would as well.

[18] On the issue of relevancy, in this case, clearly the plaintiff must consider that some photographs are relevant to her claim because she has served photographs of her prior to the accident, notwithstanding that they are only "snapshots in time".

Justice Rady discounted that any significant privacy concerns arose in the circumstances before her:

[20] Having considered these competing interests, I have concluded that any invasion of privacy is minimal and is outweighed by the defendant's need to have the photographs in order to assess the case. The plaintiff could not have a serious expectation of privacy given that 366 people have been granted access to the private site.

Rady J. ordered the plaintiff to produce copies of the web pages posted on her private site, subject to the ability of plaintiff's counsel to make future submissions in the event that any of the photographs personally embarrassed the plaintiff.

In Kourtesis v. Joris, 2007 CanLII 26284 and 39367 Justice Brown allowed photographs from Facebook into evidence during the trial and concluded , based on the photographs that the claimant did in fact enjoy life. The Judge found that contrary to testimony given by her and her family, she continued to enjoy an "active social life."

In Goodridege (Litigation Guardian of) v. King, 2007 CanLII 51161, Justice Platana of the Ontario Superior Court concluded that the scarring on a plaintiff's face did not substantially interfere with her enjoyment of her everyday life. The Judge noted that the plaintiff provided her picture on Facebook and the Facebook information demonstrated that she continued to socialize and date.
It is clear that lawyers and their clients have to be aware of new sources of information in dealing with claims for personal injury. Social networking sites can be a gold mine for defendants and a disastrous pit for claimants. The courts are prepared to use such information in trial and are prepared to order preservation and production of such information in the discovery process.

Rui Fernandes

 

2. THE LAWS OF AVIATION: LIABILITY OF THE CARRIER IN THE CASE OF DESTRUCTION, LOSS, DAMAGE OR DELAY TO BAGGAGE.

Airlines experience baggage claims that are not commonly experienced by other modes of carriage. The differentiating factor is that with air travel baggage is provided to a carrier upon check-in and then typically not handled again by the passenger until arrival at the destination. This means that during this time period, baggage is under the care, custody and control of the airline and/or it servants, agents and/or employees and it owes a duty to the passenger to ensure its safe carriage.

The speed, complexity and number of people involved in handling air baggage provide numerous opportunities for baggage to become lost or damaged while it is in the airline's care, custody and control. The purpose of this paper is to assist the reader in understanding exactly what the carriers' responsibilities are and what actions passengers should take to ensure they receive the maximum recovery.

Prior to diving into this topic, it should be noted that this article focuses largely on international air carriage that is governed by the Convention for the Unification of Certain Rules for International Carriage by Air, which was signed in Montreal on May 28, 1999. This convention is commonly referred to as the Montreal Convention, 1999 and shall be referred to as such herein. The Montreal Convention, 1999 became law in Canada when it was incorporated into the Carriage by Air Act. R.S.C. 1985, c. C-26 Though the Montreal Convention, 1999 is in essence the default regime that is applicable, depending on circumstances, other laws, conventions and/or protocols could be applicable in certain circumstances. This is noted to inform the reader of this reality; however, this is beyond the scope of this paper.

As mentioned above, the baggage is in the care, custody and/or control of the carrier and/or its servants, agents and/or employees from the time that the passenger checks the baggage in until it is returned to the passenger following disembarkation. The obligations of the air carrier during this period are set out in Article 17 (2) of the Montreal Convention, 1999.

In particular the Convention states that:

The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

In accordance with this provision, in the case of checked baggage, it states that the carrier is strictly liable for any destruction, loss or damage to the baggage from the time that the carrier is provided the checked baggage until it is returned to the passenger at the destination. Therefore, the passenger is only obliged to prove that the loss in fact did occur and that the baggage was in the possession of the carrier and/or its servants, agents and/or employees at the time of the loss.

With respect to loss of baggage, the Convention stipulates that a carrier is not deemed liable until twenty-one (21) days have passed since the day the baggage was scheduled to arrive or the carrier admits the loss of checked baggage. (Article 17(3))

In the case of baggage that has not been checked, the Montreal Convention, 1999 does allow for carrier liability in the event that the baggage is damaged or lost; however, the passenger has the significant burden of showing that the loss of the baggage or the damaged contents resulted from the fault of the air carrier and/or its servants or agents. (Article 17(2))

A carrier does have a couple of defences to liability with respect to baggage claims, including in the case of checked baggage. The first is a substantive defence in that the carrier will not be liable if it can show that the damage was the result of inherently defective baggage. A second defence available to the carrier is a procedural one in that the passenger is obliged to provide notice to the carrier in the event of damage or delay. In particular, in the case of damage, a passenger must advise the carrier in writing within seven (7) days of receipt of the checked baggage. In the case of delay, the carrier must be advised in writing within twenty-one (21) days from the date that the carrier received the cargo. It should be noted that there are no notice requirements with respect to the loss of baggage. (Article 31(2)(3)). The Montreal Convention, 1999 goes on to note that if the passenger fails to abide by these notice requirements, then "no action shall lie against the carrier, save in the case of fraud on its part." (Article 31(4)

Once liability has been established and the notice requirements have been complied with, the next step is to determine the amount of exposure that the carrier may face. In the case of the Montreal Convention, 1999, the carrier is able to automatically rely on the limit of liability. In particular, in the carriage of baggage, "in the case of destruction, loss, damage or delay [a claim] is limited to 1000 Special Drawing Rights for each passenger". (Article 22(2))

The Montreal Convention, 1999 allows for this limit of liability to be broken by the passenger in one of two ways. The first is that the carrier and passenger can agree to waive this limit if it is mutually agreed at the time that the baggage is checked and the passenger pays a supplementary sum for this service. (Article 22(2)) Secondly, these limits can be broken if the "damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result." The paragraph goes on to note that the servants or employees must be acting within the scope of their employment for this trigger to apply. (Article 22(5)

The aforementioned may assist in breaking the limits of liability, but if one is unable to break the limits, then one must work within the terms of the limits of liability. In particular, one must ensure that they do not do anything to limit liability further than what is prescribed by the Montreal Convention, 1999.

Ace Aviation v. William Holden 2008), 240 O.A.C. 184 or 2008 CanLII 40223 (ON S.C.D.C.) is an example of case where the passengers faced a technicality with respect to the limits of liability and one of the passengers was unable to recover. In this case, Mr. and Ms. Holden were flying to New York. Prior to departure, Mr. and Ms. Holden had packed numerous items within one bag. Upon arrival in New York, they discovered that the bag was lost. Mr. and Ms. Holden, who both had items in the bag, made a claim against the carrier. The court in the end reasoned that Article 22(2) of the Montreal Convention, 1999, was drafted in such a way that "passenger" only included the person who checked the baggage. Accordingly, the court concluded that Ms. Holden had checked the bag and could make a claim for the limit of liability, but Mr. Holden, who may have had belongings in the bag and may have indeed been a passenger aboard the plane, could not make a claim against the carrier.

In conclusion, despite the fact that carriers are strictly liable with respect to any damage or loss that occurs to checked baggage, it is not automatically recoverable for the passenger. The passenger is obliged to ensure that proper notice is provided to the carrier and that they are able to demonstrate what damages were actually incurred as a result of the carrier's breach of contract and/or negligence. In addition, passengers traveling in pairs ought to take steps prior to even boarding the plane to ensure that each passenger has his or her own bag and that each passenger ensure that his or her own bag is checked in under his or her own name. If the proper steps are taken at the front end, passengers will likely achieve a far more satisfactory resolution.

Matt Mulholland

 


This newsletter is published to keep our clients and friends informed of new and important legal developments. It is intended for information purposes only and does not constitute legal advice. You should not act or fail to act on anything based on any of the material contained herein without first consulting with a lawyer. The reading, sending or receiving of information from or via the newsletter does not create a lawyer-client relationship. Unless otherwise noted, all content on this newsletter (the "Content") including images, illustrations, designs, icons, photographs, and written and other materials are copyrights, trade-marks and/or other intellectual properties owned, controlled or licensed by Fernandes Hearn LLP. The Content may not be otherwise used, reproduced, broadcast, published,or retransmitted without the prior written permission of Fernandes Hearn LLP.