BC Court Certifies Class Action Lawsuit Against Facebook

May 30, 2014: In what some would say is a big win in the personal privacy realm, Madame Justice Griffin of the BC Supreme Court certifies the class and sets out the issues in what will be an interesting case to follow as it relates to Facebook and Sponsored Ads.

The Court states as follows in Douez v. Facebook, Inc:

[360]     Given the almost infinite life and scope of internet images and corresponding scale of harm caused by privacy breaches, BC residents have a significant interest in maintaining some means of policing privacy violations by multi-national internet or social media service providers. 

[361]     Working together the CPA and the Privacy Act provide practically the only tools for BC residents to obtain some access to justice on these issues. 

[362]     There is evidence showing some basis in fact for the plaintiff’s assertion that Facebook used the 

names or portraits of BC residents who were Facebook users without their consent in advertisements called Sponsored Stories.

[363]     There is also some basis in fact to support the plaintiff’s claim that this conduct creates an actionable tort pursuant to s. 3(2) of the Privacy Act, without the necessity of proving actual damage.

[364]     I have dismissed Facebook’s application that this Court decline jurisdiction in this matter.

[365]     I have granted the plaintiff’s application that the within proceeding be certified as a class proceeding.

[366]     The class description will be as follows:

All British Columbia Resident natural persons who are or have been Members of Facebook at any time in the period from January 1, 2011, to May 30, 2014 and:

(a)            who at any time during this period registered with Facebook using either their real name or a portrait that contained an identifiable self-image or both;

(b)            whose name, portrait, or both have been used by Facebook in a Sponsored Story; and,

(c)            who do not seek to prove individual loss as a result.

[367]     I conclude on the evidence and submissions before me that one of the central issues in the lawsuit will be whether or not Facebook’s standard Terms of Use, alone or together with other Facebook online tools, provided users’ consent to Facebook to use the person’s name or portrait in advertising through Sponsored Stories.  This is an issue common to all class members.  The determination of this issue will significantly advance the lawsuit on behalf of all class members or could defeat the lawsuit altogether.

[368]     There are other common issues in addition to the consent issue. 

[369]     Attached as Appendix A is a list of the approved common issues.  The parties have liberty to apply within 30 days to amend common issues 1 through 4 to address any concerns with the wording.  Likewise, the parties have liberty to apply within 30 days to address any concerns with the revisions to the class definition made as a result of this judgment.

 [370]     l also suggest that the parties arrange for a further hearing before me to address the form of notice to class members and any revisions to the litigation plan to take into account these reasons.

Appendix “A”

Issue 1	What if any Online Actions taken by a Class Member on the Facebook service would constitute express or implied consent to the Class Member’s name or portrait being used in a Sponsored Story, such that it constitutes consent within the meaning of s. 3(2) of the Privacy Act, R.S.B.C. 1996, c. 373?
Issue 2	Is a tort under s. 3(2) of the Privacy Act provable as an independent tort without regard to the elements of s. 1(2) and (3) of the Privacy Act?
Issue 3	Were all or only some Sponsored Stories for the purpose of advertising or promotion within the meaning of s. 3(2) of the Privacy Act?
Issue 4	Does the Privacy Act apply to Facebook in relation to BC residents who used Facebook’s services?
Issue 5	Are Class Members entitled to damages without individual proof of damage pursuant to s. 3(2) of the Privacy Act?
Issue 6	Can the amount of damages be determined on an aggregate basis; if so, in what amount?
Issue 7	Does the Defendant’s conduct justify an award of punitive damages in favour of the Class; if so, in what amount?
Issue 8	Is the Defendant liable to pay interest pursuant to the Court Order Interest Act, R.S.B.C. 1998, c. 79; if so, in what amount?

ICBC Tip of the Month (May 2014): Do I need a Personal Injury Lawyer?

"Do I need a Personal Injury Lawyer for my ICBC case?" 

Sometimes the word "lawyer" scares people.  There is a feeling or perception that lawyers are expensive or aggressive or intimidating.  In ICBC injury claims, lawyers are becoming an important part of the investigation, medical-legal evidence, negotiation, settlement, and/or court process. You need to make sure you go through the exercise of finding the right lawyer for you, and use the no-fee free initial consultation to do that.

Let's get into the nitty-gritty. ICBC has a mandate or objective to reduce exposures and pay out injury claims at the least amount possible.  If ICBC was prepared to offer full value based on precedent case law to unrepresented people,  then there would be no need for personal injury lawyers. That typically won't happen and a qualified and experienced personal injury lawyer almost always gets you more money at the end of the claim than trying to handle the claim without a lawyer.

Sometimes, hiring a personal injury lawyer is important at the outset. These situations could include:

1. Inability to work or earn income due to accident related injuries;
2. Hospitalization due to injuries;
3. Death in a car accident;
4. Fault or liability for the accident is at issue (see tip);
5. Hit and Run claims require certain obligations (see tip);
6. Low Velocity Impact Claims or ICBC says that the material damage estimates are too low to recognize an injury (see tip); OR
7. Resulting permanent injuries that will impact your future income earning or the need for future care and treatments (see tip).

In most cases, lawyers need to carry out early investigation before evidence is lost and most importantly he will need to obtain a series of expert reports to ensure a proper diagnosis and prognosis legally connected to the claim. Early and regular advice from the lawyer will hopefully ensure that the claim is properly documented and the collection of those records is protected.

Although a personal injury lawyer will likely provide a legal bill based on a contingency fee agreement (percentage of recovery), in the majority of cases, the lawyer will  obtain an offer from ICBC well in excess of what you can do on your own. In other words, in most cases you are likely to yield a higher net recovery with a lawyer, after you pay the legal fees. ICBC can also be demanding in terms of your time via telephone and email - hiring a personal injury lawyer will make that process less stressful.

It should also be noted that there are personal injury claims for which it may not be beneficial to hire a lawyer. For example, if you have suffered a soft tissue injury which is short in duration (weeks or months), you may be able to convince the ICBC adjuster to provide a reasonable settlement proposal to you and then you can settle the case for a reasonable dollar. It may be worthwhile to review that offer with a personal injury lawyer on a no-fee initial consultation.

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

"What is my case worth?" - Assessing Loss of Wages and Earnings

"Future Income Loss", "Loss of Earnings Capacity", "Loss of Capital Asset", "Future Event Leading to an Economic Loss":

In ICBC personal injury cases, BC courts are faced with the difficult task of assessing future income loss while keeping the total amount of damages within a reasonable estimate. Past cases give insight into the matter and guide lawyers on how to direct the court in determining the loss.

Proof and Evidence

The Plaintiff must prove that his/her financial earnings would be negatively affected by the injury. They might not be as productive and therefore suffer a loss in earning ability or capacity. This might include establishing the earning potential of a person if he/she did not suffer the injury. This is especially true for injured persons facing long term disabilities that prevent them from obtaining future employment. In the case of people who are not able to work at the same pace or working hours before the injury this would translate into a potential future loss of income.

In Perren v. Lallari 2010 BCCA 140, the BC Court of Appeal was dealing with a woman who was claiming a loss of earning capacity because she was not able to meet the physical demands of some jobs thus limiting her job options. It was found that she was holding a managerial position before and after the injury. The Court thus determined that her physical injury did not translate to loss in future earnings since her current position paid more compared to physically demanding jobs.

Calculating the Loss

If the Plaintiff is able to prove to the court that there indeed is a loss of earning capacity then the next step is to determine the amount of damages. This is not a simple case of determining potential earnings because the injured party is unable to log the same working hours. Calculating loss of earning capacity includes assessing if the injury has prevented the person from pursuing future employment, his/her possibility for promotion and the possibility of being hired in more lucrative positions.

There are some limiting factors in determining the total amount awarded for loss of earning capacity, including the person’s age of retirement and potential as a candidate for future jobs. This is highly contentious and ICBC will present factors to prove or disprove how much the injury could affect the Plaintiff's financial outlook.  Try to imagine assessing the future potential for babies, children, or young adults.

Not all cases result in awards for loss of future earnings.  This is why your case should be assessed by a qualified and experienced personal injury lawyer with a proven track record.  

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

ICBC Tip of the Month (April 2014): Unhappy with an ICBC decision?

I am often approached by people that are upset about a decision by an ICBC adjuster.  Some examples include:

• percentage of fault determination;
• reimbursement of expenses;
• depreciated value of a vehicle following a collision;
• after-market parts used to repair a vehicle;
• certain additions or improvements to a vehicle that are not covered.

If you have a disagreement with ICBC, there are options within ICBC where you can try to get the decision overturned without actually hiring a lawyer or going to court. You can use the internal ICBC review process for virtually all decisions ranging from a liability determination, vehicle repair issues, accident benefit issues (part 7 and rehab). Here are some easy tips and steps to follow:

STEP 1: Customer Service: if you have a dispute or complaint, first contact the manager or supervisor of the adjuster you were dealing with. You can freely discuss the issue with the manager or supervisor or seek some direction on how to enter the "Fair Practices Review";

STEP 2: Fair Practices Review: if unhappy with the result from Step 1, launch a complaint through ICBC’s Fair Practices Review department.

STEP 3: Fairness Commissioner: if unhappy with results from Step 1 and Step 2, you may be eligible for a review by the Fairness Commissioner, which involves requesting a review in writing. The Fairness Commissioner may conduct the review and make findings and recommendations with respect to the issues.

STEP 4: Lawsuit: If you have gone through ICBC's internal review process and still are not satisfied, you should seek legal advice and/or file your dispute in court. For smaller disputes, the Small Claims Court is a possible venue. There are strategic and legal reasons involved in selecting the right venue.  

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

Hit and Run ICBC Claims: When You Can't Find the Motorist That Hit You

Being injured in a motor vehicle accident is incredibly stressful.  It only gets worse when an ICBC adjuster tells you that they can't find the motorist and you do not have a valid claim. If this happens, you should seek legal advise because you have certain obligations that may allow you to make an injury claim. 

Under section 24 of the Insurance (Vehicle) Act, ICBC is required to compensate you for death, injury, or for damage to a vehicle even if the at-fault motorist is unknown (a hit and run).

In terms of vehicle damage, it is a matter of reporting the claim to ICBC and bringing your vehicle in for an inspection. ICBC usually has specific claim centres that inspect vehicles involved in hit-and-run accidents. It is important to be honest about your reporting and identifying the actual damage caused by the Hit and Run motorist.  ICBC is getting more and more sophisticated with their computing technology and they may be able to find the motorist by using the Tip Hotline and paint samples.   Don’t try to “pull one over” on ICBC as you may be charged with fraud criminally. It also impacts your credibility and honesty with ICBC, which can go a long way with presenting your injury claim. 

As to a bodily injury or death claim, although ICBC has to cover these losses, the current law requires that you take all reasonable steps to identify the at-fault vehicle and its driver. 

Section 24 of the Insurance (Vehicle) Act provides the clear reporting requirements:

First: One reporting requirement is that you give written notice to ICBC of the accident as reasonably practicable as possible, but no later than six months after the accident. The courts have interpreted this provision as requiring a motorist to give ICBC notice within days of the accident unless for some reason your injuries preclude you from doing so.

Second: In addition to providing early reporting to ICBC about the Hit and Run incident, you must take steps to determine the identity of the at-fault motorist. Section 24 (5) provides that:

(5) In an action against the corporation as nominal defendant, a judgment against the corporation must not be given unless the court is satisfied that:
(a) all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be, and
(b) the identity of those persons or that person, as the case may be, is not ascertainable.

Case law has established that you have to take some positive steps to identify the other vehicle and driver. The Courts have found the duty to identify to not only exist at the time of the accident but also in the days and weeks after the accident. For example, at the scene of the accident, if you do not record the information necessary to identify the other driver and vehicle, you probably have no claim. That is, if you let the other driver leave the scene without recording plate numbers and driver’s license information, you could lose your right to a valid ICBC personal injury claim. It is only when the other driver fleas the scene of the accident scene and you cannot record the information that you have a valid Hit and Run claim.

Recommendations: follow these steps to secure your best chance at a valid Hit and Run ICBC injury claim:

1. in and discrete and safe manner, try to follow the other vehicle and record the license plate information and vehicle description (make, model, color and other distinguishing marks);
2. notify the police as soon as possible from the accident scene or definitely within hours of the accident;
3. try to locate a witness from the scene of the accident;
4. notify ICBC as soon as possible or definitely within hours of the accident;
5. depending on location, place a sign at the accident scene looking for potential witnesses;
6. place an advertisement in the local newspaper looking for witnesses;
7. follow-up with the police regarding the investigation for status reports; and
8. if the accident occurred nearby to some buildings, find out if there is potential video footage or possible witnesses.

From reviewing those recommendations, you probably realized that you are being asked to be a detective so that ICBC cannot turn around later and argue that you did not take steps that you should have.  Assuming that you meet the initial threshold test, you then pursue ICBC for payment of damages. If you have to commence a law suit, it is a little different than the usual case and will be the topic of a future post. You should hire a personal injury lawyer and seek advice.

Conclusion: in a nut shell, whenever you are involved in an accident where you cannot identify the driver or owner of a vehicle, it is very important to make an early reporting to ICBC and the police. You also have to take positive steps to try and identify the vehicle and the driver of the other vehicle. If you don't follow these basic steps, you will have trouble pursuing a claim against ICBC.

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

ICBC Tip of the Month (March 2014): "Are my ICBC settlement funds taxable?"

QUESTION: "Are my ICBC settlement funds taxable?" 

ANSWER: When you receive a settlement from ICBC, even if it is partly for past wage loss, you do not have to pay any taxes.

If you are receiving ICBC Part 7 disability benefits, you do not have to pay taxes on that amount either.

Why not? Firstly, when ICBC calculates any lost wages attributable to the car accident they reduce the amount owing based on the taxes you would have paid if you had received that income. In other words, they will reduce the amount owing in wages by your appropriate tax bracket.  This is done before the settlement of the claim.

Secondly, non-pecuniary general damages (pain and suffering money) is not taxable pursuant to the Income Tax Act. 

Another interesting tax implication is that if you received a large future income loss award, you may be entitled to a tax gross up award which gives you extra money because of the long-term tax implications of investing your settlement funds for the long-term.

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

Failing to Call a "Key" Witness: Adverse Inference

LEGAL PRINCIPLE: An "adverse inference" is when a lawyer,  plaintiff or defence, asks the Court to make a conclusion based on missing evidence or silent evidence on an issue. In other words, typically in an ICBC personal injury case, someone has failed to call a witness or an expert that ought to have been presented.  

The British Columbia Supreme Court delivered judgment this week on February 26, 2014 in the matter of Chabot v. Chaube, 2014 BCSC 300.  Mr. Justice N. Brown discussed the inference the ICBC defence lawyer asked the court to draw when the Plaintiff failed to call a friend who organized a bunch of their recreational activities - the inference being that the friend would probably have testified that the Plaintiff did a bunch of things she said she could not do as a result of her injuries:

[136]     The court heard testimony from some family members and friends, but not from her very good friend, Ms. Sophia Ribchinsky, who happened to be the organizer of various recreational activities the plaintiff participated in, such as volleyball. They have kept in touch since the accident. The defendant, therefore, submits I ought to draw an adverse inference. The defendant pointed the court to Buksh v. Miles, 2008 BCCA 318 at para. 30 [Buksh]:

[30]      The notion of adverse inference is related to the best evidence rule. The observation in Wigmore’s Evidence in Trials at Common Law, Chadbourne Rev. (Toronto & Boston: Little Brown & Company: 1979) vol. II, s. 287, at 202-3, offers valuable guidance:

Furthermore, it seems plain that possible witnesses whose testimony would be for any reason comparatively unimportant, or cumulative, or inferior to what is already utilized, might well be dispensed with by a party on general grounds of expense and inconvenience, without any apprehension as to the tenor of their testimony. In other words, put somewhat more strongly, there is a general limitation (depending for its application on the facts of each case) that the inference cannot fairly be drawn except from the non-production of witnesses whose testimony would be superior in respect to the fact to be proved.

[Emphasis in original.]

[137]     In McIlvenna v. Viebig, 2012 BCSC 218, Sigurdson J. referred to the summary referred to in Canadian Encyclopedic Digest, CED (West. 4th), vol. 26, title 61 at para 71. The editors noted that more contemporary liberal disclosure rules have given parties equal opportunities to call witnesses who might assist their litigation position. The existence of disclosure rule changes have encouraged judges to move away from the idea that they ought to draw an adverse inference against a party who had failed to call a witness who might know relevant facts. At s. 200, the CED editors noted that the drawing of an adverse inference is discretionary unless all the circumstances warrant it. The editors summarized:

… In particular, the judge should consider whether: there is a legitimate explanation for failing to call the witness; the witness is within the exclusive control of the party or is equally available to both parties; and the witness has key evidence to provide or is the best person to provide the evidence in question. In a case before a jury, the trial judge should charge the jury that it is appropriate to infer that a failure to call material evidence uniquely available to a party was an indication that such evidence would not have been favourable to that party, but that jurors are not obliged to draw such an inference.

[Emphasis removed.]

[138]     At para. 32 of Buksh, Saunders J.A. commented that the tactic of asking for an adverse inference was being much overused in today’s legal environment, and that the inference, “requires, at the least, a threshold examination by the trial judge before such an instruction is given to the jury”.

[139]     In Buksh, the court was dealing with a medical witness who provided clinical records. The question was whether the plaintiff ought to have called them. At para. 35, the court mentions these factors: the evidence before the court; proffered explanations for not calling the witness; and the nature of the evidence they could give.

[140]     I do not think it makes much difference whether the plaintiff’s counsel knew the other side intended to raise the issue. The defendant examined the plaintiff for discovery. The witness’s identity was not a mystery. The defendant could have sought an interview, but this alone does not negate the drawing of an adverse witness.

[141]     Because the witness was close to the plaintiff and had organized recreational activities the plaintiff participated in, conceivably she could give relevant evidence on the nature and extent of the plaintiff’s activities, how often she participated in them, and any limitations she might have noticed. The plaintiff does not deny she has participated in some recreational activities, but testified she did so in a more limited fashion than before the accident; and that some she had given up. She also explained that certain shoulder movements hurt. The defendants called a former boyfriend, who testified about recreational activities he had engaged in with the plaintiff after the accident. Investigators retained by the defendant took videos of the plaintiff playing beach volleyball on August 22, 2013 (T. Oct. 31, 2013, p. 63, l. 7). That video consists completely with the plaintiff’s description of the nature and extent of her participation in beach volleyball.

[142]     Plaintiff’s counsel advised he had not foreseen the possibility of the defendant asking the court to draw adverse inferences coming into play and had decided it was not necessary to call the witness.

[143]     While Ms. Ribchinsky likely could have testified regarding the plaintiff’s physical abilities before and after the accident and surgery, I cannot find her evidence necessarily would be superior to other similar evidence. The plaintiff spent much recreational time with her former boyfriend and the defendant extensively cross-examined her on the subject.

[144]     The evidence on this question must be viewed as a whole not piecemeal.

[145]     I decline to draw an adverse inference regarding the nature and extent of the plaintiff’s physical limitations in recreational activities so as to conclude Ms. Ribchinsky’s evidence likely would have been detrimental to the plaintiff’s case.

LESSON: Strategically, there are reasons for calling each witness.  If there is a possible adverse inference that can be drawn for failing to call a witness, you should weigh the risks against the benefits and decide accordingly.   

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)