As you may have noticed, a number of my posts have dealt with articles that address recent cyber law topics such as Facebook, Twitter and Blogging in the context of civil litigation in Canada. In an effort to create a more “focused” forum for law and technology issues, I have recently started up a cyber law blog with Richard Bortnick of Cozen O’Connor in Philadelphia. The blog, ”CyberInquirer“  (http://www.cyberinquirer.com) deals with news and views regarding recent developments in cyber law and insurance in the U.S. and Canada. Meanwhile, I hope to continue to gear this blog towards other Canadian civil litigation topics of general interest. If you have any questions about the site or content, please feel free to get in touch with me. Thanks for stopping by!

A New Decision on Facebook: Ex Parte Injunctions and Preservation Orders

Another Ontario decision dealing with production of Facebook profiles in personal injury lawsuits was released on October 29, 2009. In Schuster v. Royal & SunAlliance Insurance Company of Canada, the defendant brought a motion before a judge, without notice to the plaintiff, seeking an injunction requiring the plaintiff to preserve and produce her Facebook webpage.  The particulars of the decision are set out in detail, below.

The plaintiff claimed that, as a result of a car accident, she suffered injuries that impaired her ability to work and to participate in social and recreational activities. During litigation, she produced an “affidavit of documents” (a sworn list of all documents in a party’s possession, including electronic documents, that are relevant to the lawsuit) in which she failed to disclose the existence of her Facebook account.

The defendant hired a surveillance company and discovered the Facebook account, for which access was restricted to 67 “friends”, one being the plaintiff’s mother-in-law. The defendant was able to obtain photographs from the mother-in-law’s Facebook account in which there were pictures of the plaintiff dated before and after the accident, although she was just standing, sitting or reclining  (she was not engaged in any activities in relation to which she claimed to be impaired).

The defendant had brought the motion on an ex parte basis (that is, without notice to the plaintiff) seeking an Interim Order for the Preservation of Property under Rule 45.01 of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194). (Ex parte motions are typically granted where urgency arises because there is a reason to believe that the responding party, if given notice of the motion, will take steps to frustrate the process of justice before the motion can be decided). Rule 45.01 states:

INTERIM ORDER FOR PRESERVATION OR SALE

45.01 (1)  The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party. R.R.O. 1990, Reg. 194, r. 45.01 (1).

(2)  Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just. R.R.O. 1990, Reg. 194, r. 45.01 (2).

The Court noted that Rule 45.01(1) is “typically used to ensure that important documents, information or other items are preserved and available for the trial of an action where there is a strong likelihood that the defendant would destroy this evidence once notified of the proceedings”. As a result, an order under Rule 45.01 is similar to a civil search warrant and therefore subject to a higher threshold test than an “ordinary” ex parte injunction, pursuant to s. 101 of the Courts of Justice Act (“CJA”). (Note that Rule 40 of the Rules of Civil Procedure sets out the procedure to be followed in order to obtain an order under s. 101 of the CJA).

Justice Price noted that it was unclear whether the defendant was seeking access to just the web site, or the preservation and production of the website contents, and noted that an order granting the defendant access to the site would be far more invasive than ordering the plaintiff to preserve the contents of the site. Since an order granting the defendant access to the plaintiff’s Facebook account would have required the plaintiff to provide her username and password to the defendant (and was beyond the scope of her obligation to disclose relevant documents), the Court proceeded on the assumption that the defendant was only seeking an order for preservation of the site.

Justice Price then considered whether the defendant had met the test for an ordinary ex parte injunction under s. 101 of the CJA:

101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)

Terms

(2)An order under subsection (1) may include such terms as are considered just. R.S.O. 1990, c. C.43, s. 101 (2).

In considering whether to grant the interlocutory  injunction, Justice Price applied the test set out by the Supreme Court of Canada in R.J.R. Macdonald Inc. v. Canada (A.G.):

1.)    Is there a serious question to be tried? Judge Price found that there was a serious question to be tried, namely, the extent to which the accident had prevented the plaintiff from earning and income and engaging in recreational activities.

2.)    Will the applicant suffer irreparable harm if the application is not granted? This is usually determined by considering whether damages will be an adequate remedy. In this case, the defendant argued that without the content of the Facebook webpage, it woudl be deprived of the opportunity to properly respond to the plaintiff’s claim. The Judge disagreed noting that proof of irreparable harm must be clear and not speculative ; there was no evidence that there were incriminating photographs on the plaintiff’s Facebook page. In fact, Justice Price held that since the plaintiff had not listed the Facebook page in her affidavit of documents, the presumption was that this was because the Facebook page did not contain any relevant information. Unlike in previous Ontario cases dealing with Facebook production, in this case, the judge was NOT prepared to draw an inference from the nature of Facebook itself or the plaintiff’s profile that her Facebook page was likely to contain relevant evidence, stating:

I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintiff’s account in the present case do not appear, on their face, to be relevant”.

3.   Whom Does the Balance of Convenience Favor? In weighing the privacy interests of the plaintiff and the defendant’s interest in full disclosure, the court concluded that the balance favored the plaintiff:

• The plaintiff’s failure to disclose her Facebook account in her affidavit of documents should give rise to the presumption that the information on the webpage is not relevant to the litigation – the defendant has the opportunity to rebut this presumption by cross-examining her on her affidavit of documents if it so chooses.
• The defendant had been at liberty to question the plaintiff about her Facebook account at her examination for discovery.
• There was no evidence to support the defendant’s proposition that the plaintiff was likely to delete any relevant contents of her Facebook profile pending trial.

In considering the plaintiff’s privacy interests, Justice Price had regard to the Federal Privacy Commissioner’s “Report of Findings into the Complaint filed by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) Against Facebook Inc” under the Personal Information Protection and Electronic Documents Act, and concluded:

The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends”. She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.

As a result of the foregoing, the Court concluded:

The Defendant has not established a basis for a preservation order in the present case, especially on an ex parte motion. The Defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved. It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion.

The Court did decide, however, that ”[b]ecause Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it”, the Court was prepared to grant the defendant a further opportunity to cross-examine the plaintiff on her affidavit of documents if it chose to do so.

What is a Limitation Period?

All legal proceedings, including subrogated recovery actions, must be commenced within a certain period of time set out by legislation. The time period in which an action can be brought is called a limitation period. It is also sometimes called a prescription period. If an action is not brought within the applicable limitation period, the claim will be forever lost. Even the most meritorious subrogated claim will disappear because of the expiry of a limitation period.

What is the Purpose of a Limitation Period?

The essential purpose of a limitation period is to place a reasonable limit on the amount of time which a party may take to commence an action. This serves a number of important purposes:

• It creates an incentive for plaintiffs to bring their lawsuits in a timely fashion.
• It defines a period of time in which a defendant can know with certainty that it will be free of ancient obligations.
• It prevents plaintiffs from bringing old claims in which evidence has been lost by the passage of time

When Does a Limitation Period Start to Run?

Each province has different rules about when a limitation period begins to run. For example, in some provinces, time will start to run as soon as the facts which give rise to the claim take place. In other cases, the limitation period may not begin to run until the plaintiff discovers that he or she has been wronged. In some cases, a limitation period may temporarily stop running while parties are attempting to reach a settlement agreement. A party’s conduct may also affect the running of a limitation period. Additionally, where a plaintiff is a minor or under a disability, the limitation period may not start to run until after that person reaches the age of majority or is represented by a litigation guardian.

Which Limitation Period Applies?

The limitation period that applies in a particular case is determined by a number of factors. Just as limitation periods vary from province to province, they may also vary depending on the nature of the subrogated claim or cause of action, or the subject matter of the claim. Furthermore, some actions are dealt with by federal law in which case there may be one single limitation period that applies across Canada. Limitation periods may also vary depending upon the identity of the party being sued. For example, different limitation periods may apply if an action is brought against a municipality or other government body. The applicable limitation period may also be affected by the identity of the plaintiff, for example, where the plaintiff is a minor or under a disability. Finally, in some provinces, but not all of them, parties can agree to a different limitation period than is set out in the legislation.

You will also notice that some provinces have a maximum time period, called an “ultimate limitation period”, after which time the claim will be barred, even if the person did not ever become aware of the circumstances giving rise to the claim. The ultimate limitation may be particularly significant in claims arising out of faulty construction or environmental contamination where a defendant’s wrongful conduct may often not be discovered for long periods of time  The following is intended as an educational overview of some of the general limitation periods that will apply in claims for property losses in Canada:

ALBERTA

• General Limitation Period - 2 years commencing when the cause of action is discovered. Limitations Act, R.S.A. 2000, c. L-12, s. 3(1)(a).
• Ultimate Limitation Period – 10 years commencing when the cause of action arises. Limitations Act, R.S.A. 2000, c. L-12, ss. 3(1)(b)

BRITISH COLUMBIA

• General Limitation Period – 2 years commencing when the cause of action is discovered. Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(2), 6.
• Ultimate Limitation Period -  30 years commencing when the cause of action arises. Limitation Act, R.S.B.C. 1996, c.266, s. 8(1).

MANITOBA

• General Limitation Period - 2 years commencing when the cause of action arises. Limitation of Actions Act, C.C.S.M. c. L150, s. 2(1)(g).However, a court can grant leave to continue or begin an action if not more than 12 months have elapsed between date the action was “discovered” and date of application for leave, subject to ultimate limitation period. Limitation of Actions Act, C.C.S.M. c. L150, s. 14(1).
• Ultimate Limitation Period - 30 years commencing when the cause of action arises. Limitation of Actions Act, C.C.S.M. c. L150, s.14(4).

NEW BRUNSWICK

• General Limitation Period - 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S. N.B. 1973, c. L-8, s. 9.

NFLD. & LABRADOR

• General Limitation Period – 2 years commencing when the cause of action is discovered. Limitations Act, S.N.L. 1995, c. L-16.1, ss. 5(b); 13; 14.
• Ultimate Limitation Period - 10 years commencing when the cause of action arises. Limitations Act, S.N.L. 1995, c. L-16.1, s. 14 (3).

N.W.T.

• General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S.N.W.T. 1988, c. L-8, s. 2(e)

NOVA SCOTIA

• General Limitation Period - 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 2(1)(e). However, within 4 years of expiry of general limitation period, court may disallow the limitation period, having regard to circumstances of the case – Listed are enumerated factors to consider including date of “discovery” of claim, Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 3.
• Note: A 2009 version of this Act has received royal assent but has not yet been proclaimed in force.

NUNAVUT

• General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S.N.W.T. 1988, c.L-8, s. 2(e).

ONTARIO

• General Limitation Period – 2 years commencing when the cause of action is discovered. Limitations Act, 2002, S.O. 2004, c. 31, ss. 4,5.
• Ultimate Limitation Period – 15 years (commencing  from 2004 or when the cause of action arises, whichever is later). Limitations Act, 2002, S.O. 2004, c. 31, s. 15.
• Transitional Rules: Apply if a cause of action arose before January 1, 2004 and a proceeding has not yet been commenced:  (1) Claim not “discovered” until after Jan 1, 2004, then 2 years from discovery, s. 24(5)(1); (2) Claim “discovered” before Jan 1, 2004, then 6 years from discovery, s. 24(5)(4); (3); If former limitation period expired before Jan 1, 2004, then no proceeding shall be commenced, s. 24(3).

P.E.I.

• General Limitation Period – 6 years commencing when the cause of action arises. Statute of Limitations, R.S.P.E.I. 1988, c. S-7, s. 2(1)(g),

QUEBEC

• General Limitation Period – 3 years from time the right of action arises. Civil Code of Quebec, S.Q. 1991, c. 64, art. 2925.

SASKATCHEWAN

• General Limitation Period – 2 years commencing when the cause of action arises. Limitations Act, S.S. 2004, c. L-16.1.
• Ultimate Limitation Period – 15 years. Limitations Act, S.S. 2004, c. L-16.1.

YUKON

• General Limitation Period – 6 years commencing when cause of action arises. Limitation of Actions Act, R.S.Y. 2002, c. 139, s. 2(1)(e), (f)

Conclusion

Although it is important for subrogation professionals to be alert to some of the limitation periods which might commonly apply in property damage claims, the limitation period which finally applies in a given case can be a complex and difficult legal issue to determine and may require resort to both legislation and case law. Oftentimes, the seemingly obvious limitation period is not the correct one and in some cases, the correct limitation period may even be difficult for lawyers to identify or locate. The opinion of an experienced lawyer should always be obtained in order to ensure that a subrogated claim is not unintentionally forsaken.

I was recently interviewed by Norman Gautreau, author of “Sea Room” and “Island of First Light“, for Martindale Hubbel’s Legal News and View’s Member Spotlight with respect to its new social networking initatives. Needless to say, it was a very interesting experience. I have been asked to spread the article around (not a difficult chore). It is found on Martindale Hubbel’s “Legal News and Views” (which will require that you register), or you can view a pdf copy of the article at THIS LINK.

In Canada, generally speaking, subrogation refers to the legal right of an insurance company that has indemnified its customer for loss or damage pursuant to an insurance policy to ’step into the legal shoes’ of its customer and bring a lawsuit in the customer’s name against third parties that caused the loss or damage.  Subrogation serves a number of purposes including (1) preventing people from obtaining  ”double recovery” under both an insurance policy and a legal action; (2) ensuring that wrongdoers are held accountable for loss or damage that they have caused to others, notwithstanding that the victim may have insurance.

Canadian common law provides that an insurer must bring its legal action in the name of its customer, rather than in the name of the insurance company. The reason for this is largely historical. Originally, an insured customer was required to take all steps within his or her power to reduce a loss for which they received insurance, including exercising legal remedies against third parties. Since those remedies were personal to the customer, however, they could only be exercised in the name of the customer as a matter of procedural law. The common law did not provide a method whereby a person could be compelled to commence an action against another; therefore insurers had to apply to a Court to compel their customer to allow his or her name to be used for legal proceedings against third persons in order to reduce the loss.

Today, the right of subrogation will automatically accrue to insurers who have fully indemnified their customers under an insurance policy.  However, the legal action still must be commenced in the customer’s name, rather than in the insurance company’s name.  For more information on this topic, including Canadian case references which articulate this principle, please check out “Canadian law still requires that subrogated actions be brought in the name of insured rather than insurer“, at Cozen O’Connor’s Subrogation and Recovery Law Blog.

Check out more of Stu’s Cartoons!

If you are a dog owner in Toronto, you will know that restaurant, bar and café owners do not allow any animals, including dogs, to be brought on to their patios owing to a fear that they will be fined and risk losing their license. Yet experts have confirmed that dogs are not a health hazard. In fact, birds present more of a health risk than dogs, and yet no one appears to have informed the pigeons to keep off the patios!

The relevant law is an Ontario regulation, Food Premises, R.R.O. 1990, Reg. 562, enacted under the Health Protection and Promotion Act, R.S.O. 1990, c. H-7. The regulation prohibits a dog from being in a room where food is, among other things, “served, sold or offered for sale”,  unless the animal is “service dog”:

59. Every operator of a food premise shall ensure that in respect of the food premise,…

(e)    every room where food is manufactured, prepared, processed, handled, served, displayed, stored, sold or offered for sale is kept free from,…

(ii) subject to section 60, live birds and animals;

60. (1)  Subclause 59 (e) (ii) does not apply to,

(a)    a service dog serving as a guide for a blind person or for a person with another medical disability who requires the use of a service dog, if the service dog is in an area of the food premise where food is served, sold or offered for sale;

(2)   A dog other than a guide dog for the blind is a service dog for the purposes of clause (1) (a) if,

(a)    it is readily apparent to an average person that the dog functions as a service dog for a person with a medical disability; or

(b)    the person who requires the dog can provide on request a letter from a physician or nurse confirming that the person requires a service dog. O. Reg. 74/04, s. 4 (2).

Although the term “premises” is defined in the Health Protection and Promotion Act to include both land and structures, the regulation requires only that rooms be kept free of animals; the term “room” (which would logically seemed be a subset of a “premises”) is not defined in the regulation.

It is debatable whether a “room” would actually include a patio. For instance, the online Merriam-Webster dictionary defines the term “room” as “a partitioned part of the inside of a building”. It appears, however, that Toronto’s Public Health Inspectors are nonetheless interpreting the regulation as extending to patios.

In European countries, it is not uncommon to see pets, not just on patios, but also in the restuarants themselves. Is the concern really about health? Or is it instead an accomodation for a certain percentage of the population who feel that dogs just shouldn’t be there?  If this is the case, is this an issue that should be regulated or should it instead be left up to the owners of the premises to decide whether to allow dogs on their patios?

For those who feel strongly that dogs should be allowed on patios in Toronto,  Urban Dog Toronto is sponsoring a petition to change the current law (or, at least, its current interpretation).

Starting on October 26, 2009, it will be illegal for Ontario drivers to talk, text, type, dial or use email using hand-held cellphones or other hand-held communication or entertainment devices.   Bill 118, Countering Distracted Driving and Promoting Green Transportation Act, 2009, will amend Ontario’s Highway Traffic Act to include the following provision:

Wireless communication devices
78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

Entertainment devices
(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.

Hands-free mode allowed
(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.

Exceptions
(4) Subsection (1) does not apply to,

(a) the driver of an ambulance, fire department vehicle or police department vehicle;

(b) any other prescribed person or class of persons;

(c) a person holding or using a device prescribed for the purpose of this subsection; or

(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.

Same
(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.

Same
(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
2. The motor vehicle is not in motion.
3. The motor vehicle is not impeding traffic.

…

(8) In this section,

“motor vehicle” includes a street car, motorized snow vehicle, farm tractor, self-propelled implement of husbandry and road-building machine.

The Following a three-month period beginning Oct. 26, where the focus will be on educating drivers, police will start issuing tickets on Feb. 1, 2010, according to the Ontario government. Fines will range from  $60 – $500 for talking or texting when you should be paying attention to the road. Hands-free devices are still permitted, however, so  long as a driver uses a voice-activated system for dialing the number.

Sgt. Tim Burrows of the OPP says that if a driver is caught using a hand-held device, he or she may also be charged with careless driving — costing up to $1000, six demerit points and a driver’s license suspension. It will be up to the discretion of the police officer whether to charge a driver with distraction or careless driving – or the worst case scenario: both.

The House of Lords is no longer the highest  court in the United Kingdom; it has been replaced by the new Supreme Court of the United Kingdom, which has officially come into existence today (October 1, 2009).  According to the  Official Press Release, the Supreme Court will hear civil appeal cases from England, Wales, Northern Ireland and Scotland, as well as criminal appeal cases from England, Wales and Northern Ireland. The Supreme Court takes over the devolution jurisdiction of the Judicial Committee of the Privy Council (JCPC), which continues to be the final court of appeal for certain other Commonwealth countries (and was Canada’s final court of appeal until 1949)  and other jurisdictions, such as Crown Dependencies.

According to an interesting article posted by Shaunna Mireau,  ‘Substitutional Service via Facebook in Alberta’ on Slaw,  on February 5, 2009  Master Breitkreuz ordered in Knott v. Sutherland that the plaintiffs could substitutionally serve one of the multiple defendants by publication of a notice in the newspaper, by forwarding a copy of the statement of claim to the human resources department where the defendant (formerly) worked, and also by sending notice of the action to the Facebook profile of the defendant. Precedent for service in civil matters via Facebook exists from Australia and New Zealand, but has not been previously been allowed in Canada.

The Order can be cited as: This order can be cited Knott v. Sutherland (5 February 2009), Edmonton 0803 02267 (Alta. Q.B.M.)

Cozen O’Connor’s Subrogation & Recovery Blog is finally up!  The Blog deals with current issues and developing trends in the field of subrogation and recovery, both in Canada and the US. The contributors include some of the leading attorneys in this area.