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Ontario Court Looks at Private Facebook Photograph Rules

Personal Injury lawyers may want to change their Examination for Discovery strategy based on the following new cases: Stewart v. Kempster, 2012 ONSC 7236 and Garacci v. Ross, 2013 ONSC 562. Both cases suggest that plaintiffs may not have to disclose their private Facebook photographs even if there is a claim for pain and suffering or loss of enjoyment.

The Stewart case noted that the disclosure standard has increased from the “semblance of relevance” test to the stricter “relevance” test. Here, the defendant brought a motion for the plaintiff to produce private Facebook photographs on the grounds that “all vacation photographs are relevant because the plaintiff . . . put her enjoyment of life and participation in social and recreational activities in issue.” The Court held that “(a)n injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A (private Facebook) photograph of such an activity has no probative value.” The Court dismissed the defendant’s motion.

In the Garacci case, the plaintiff alleged that she suffered a left leg injury including a left leg fracture. At discovery, she stated she could not do many former activities but did not claim “total disability” or “that the accident has completely prevented her from participating in certain athletic and social activities.” The defendant brought a motion for the plaintiff to produce 1,100 private Facebook photographs. The Defendant argued that that the private Facebook photographs should be disclosed because there were 12 publicly viewable photographs showing the plaintiff “socializing with friends, having dinner and drinks, kneeling on the ground, climbing a tree and wrestling a friend to the ground.” Master R.A. Muir ruled that no public Facebook photograph “actually show(ed) (the Plaintiff) engaged in any kind of significant physical activity.” So, Master R.A. Muir dismissed the defendant’s motion.

Plaintiff lawyers may use these new victim-friendly cases to “refuse” or “take under advisement” any defendants’ requests for victims’ private Facebook photographs.

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Humpty Dumpty’s Philosophy on Compensatory Damages

Victims get compensatory damages in order to return them back to the same position they were in before the injury. This basic Tort law concept is taught to law students – and it is wrong. Often, victims cannot “return” to their pre-injury condition.

The nursery rhyme of Humpty Dumpty shows my point. Humpty Dumpty was an egg who fell off a wall. He broke his shell so badly that none of the king’s horses or the king’s men could fix him. Humpty Dumpty would never be put back together again.

At best, compensatory damages are a substitutional remedy for a victim’s injuries. They cannot restore a person’s amputated arm, damaged brain, or lost life. They are not the judicial system’s Lotto 6/49. Compensatory damages are given, in paper money form, as a substitute for a victim’s real-life suffering.

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Ontario Court of Appeals Gives Clarity to “Catastrophic Impairment”

The Ontario Court of Appeals recently clarified the meaning of “catastrophic impairment” under Ontario’s Insurance Act.

In Pastore v. Aviva Canada Inc., Mrs. Anna Pastore was a pedestrian who suffered a lot of pain because a car hit her.  Mrs. Pastore applied for enhanced accident benefits due to her catastrophic impairment.  Her insurance company, Aviva Canada Inc., argued they did not have to pay her enhanced benefits because her injuries did not meet the definition of “catastrophic impairment.”

The Ontario Court of Appeals said that  accident victims can have an injury qualified as a  “catastrophic impairment” if it was due to by a mental disorder that caused a “marked or extreme functional impairment” in one of the following:

(1) Activities of daily living;

(2) Social functioning;

(3) Concentration  consistence, and pace; or

(4) Deterioration or decomposition in work or work-like settings.

Here is a link to the decision: Pastore v. Aviva Canada Inc.

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Ontario’s Superior Court Certifies Class Action Against Rail Companies

The Toronto Star reported that Via Rail’s derailed train victims can proceed with a class action lawsuit against Via Rail and CN Rail.  The victims claim that their train was derailed because it was going over 100 km/hr in a 25 km/hr zone.  As a result, the accident killed 3 engineers and injured 45 passengers.

Here is a link to the article: http://www.thestar.com/news/gta/article/1281195–ontario-court-gives-green-light-to-class-action-over-via-derailment

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Law Society of Upper Canada Looks at Articling Reform

As a Canadian studying at an American law school, I envy my American classmates who can sit for the bar after graduation.  Generally, future Canadian attorneys have to complete a 10 month articling position – similar to an apprenticeship.  In the past, this 10 month apprenticeship helped graduates transition into the practice of law.  Recently, the shortage of articling positions has begun to act as a barrier to the profession.  The Toronto Star reported that the Law Society of Upper Canada has recognized this problem and is looking to develop an alternative to meeting this requirement.  It will be interesting to see how this issue plays out.

Here is a link to the article: http://www.thestar.com/news/canada/article/1276838–law-society-of-upper-canada-weighs-new-path-to-the-bar

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Monster Energy Accused of Causing Teen’s Death

Caffeine is fuel that runs law students.  Personally, I enjoy a cup of black coffee in the morning.  I’ve never been a big fan of energy drinks but they are definitely popular around campus.

Recently, the New York Times reported that a mother, Wendy Crossland, filed a lawsuit against Monster Energy for causing her 14-year-old daughter’s death.  The young girl drank the company’s energy drinks over two days and suffered a heart arrhythmia.  The mother’s products liability lawsuit is based on the theory that the energy drinks had a warning defect because drinkers were not warned about the risks.

Here is a link to the article: http://www.nytimes.com/2012/10/23/business/fda-receives-death-reports-citing-monster-energy-a-high-caffeine-drink.html?hp&_r=1&

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