How Social Media Can Hurt Your ICBC Claim
In recent years, ICBC has invested heavily in monitoring the social media of potential claimants who had been injured in a car accident. They know that people will post pictures or updates that prove they are not being truthful in their accident claims. These posts can be blatant, such as when a man from Williams Lake boasted on Facebook about a plan to defraud ICBC. He was charged criminally with fraud and obstruction of justice. The posts can also depict someone living an active and happy life they claimed they are unable to live as a result of injuries they sustained in an accident. These latter instances may not result in a criminal charge, but they can destroy a plaintiff’s credibility and frustrate their claim for compensation.
We all know, however, that we put the best version of ourselves online. If we relied on Facebook to accurately follow our friends lives, we’d think they spent half the year on a beach in Bali. The same is true of people who are legitimately hurt in a car accident. They will continue to post pictures of their good days, such as when they are on vacation or playing sports, but not post pictures of the days they are in too much pain to get off the coach. If you have been in a car accident you may never be able to live the active and healthy life you did before. If you post a picture of that one time you tried to play hockey, however, it is likely that ICBC will try and use it against you in court. Your social media accounts can seriously affect your legitimate claim after you’ve been injured in an accident
Photos, videos and other social media content are increasingly being used as evidence in court to test your credibility and attack your case. In a personal injury trial, the statements you make to your doctors and friends will be used as evidence as to the effect your injuries have had on your life. The same is true of content you put online. Even if you have locked your profiles, ICBC can ask the court to order you to hand over your accounts.
ICBC may not have a right to all the information you post privately. The court will balance the possible relevance of the photos with your right to privacy. If you allege to be suffering from chronic back pain that caused you to drop out of hockey and stop going out with your friends, then photos of you playing sports with your friends on Facebook will more than likely be found relevant (see: Fric v. Gershman, 2012 BCSC 614). Photos of you relaxing on vacation, however, might not be found relevant since “an injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand.” (see: Stewart v. Kempster, 2012 ONSC 7236).
If you have posted pictures online it isn’t the end of your case. In Guthrie v. Narayan, 2012 BCSC 734, ICBC wanted to use an injured woman’s Facebook photos of a Vegas vacation to attack her credibility. The photos, however, were given no weight as evidence. As the Supreme Court Justice stated in his reasons, the injured woman was “seeking compensation for what she has lost, not what she can still do” and that “the fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident.”
Judges are increasingly aware that your photos on Facebook show you at your very best and don’t necessarily reflect how you have been affected by your injuries. If you have been in an accident, however, you must be careful about what you post. Your photos may still be taken out of context and comprise your case. You do not want to be put into the position of having to explain away what was an innocent photograph.