Beware: Social Media and the Courtroom

Social Media can be a Plaintiff’s Enemy

Facebook has taken over the globe in unimaginable proportions. Many people use Facebook daily, especially for posting photographs of fun nights out with friends and family vacations. Privacy settings can be set quite high; however it is important to know there might always be a way around privacy settings. As an injured party, Facebook and other social media websites may become your enemy.

When you are involved in an accident, personal injury has been sustained, and a law suit has commenced, it is important to take into consideration that surveillance may be placed upon you. Another consideration to be made is that, after an accident, the opposing side may very well do investigating by way of social media sites too. When you have suffered personal injury from an accident, be sure to take extra precaution of what you are posting on these websites, because any inconsistencies between what you are saying and what is being shown, may be brought to light, despite those photographs not actually depicting the true extent of your pain from your accident injury that you may have most of the time.

Counsel has not been afraid to use Facebook and other social media cases for credibility issues during questioning and in Court for people who are claiming pain and suffering from injuries sustained in an accident.  In the Ontario Superior Court of Justice case, Kourtesis v. Joris, a young woman’s photograph postings led to her claim for damages for pain and suffering to be dismissed. The young woman claimed her social life had been ruined by the accident and subsequent injuries; however Facebook photographs depicted her out partying with friends. This led to the demise of her “ruined social life” claim and in the end, undermined her claim to have suffered other problems from the accident.

Despite irrelevant searches being looked down upon, Courts have tended to find that photographs relevant to accident injury claims on social media sites should be disclosed. For instance, if you manage to climb the tallest mountain, this should be made known. Lying and hiding those facts, even if you do have legitimate injuries, could lead to your case failing in every way. If you are on social media websites, be careful as to what you post, even if you are not part of a law suit. You never know how people may gain access to your profiles and nothing is off limits if it is relevant to your case. Always tell the truth and admit, for example, if your injuries from an accident do not cause you constant limitations and pain.

If you have sustained personal injury from an accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

Request a Free Consultation

Wrongful Dismissal: Does an Employee’s Age Matter?

Wrongful dismissal-does age matter? The answer is yes, of course it does. The age of the terminated employee is always an important variable in the calculation of severance. Our courts of told us that an older employee will often have a difficult time obtaining alternate employment and therefore considerable weight will be given to the age of the employee.

Construction Workers
Wrongful Dismissal: Does Age Matter?

In the case of Law v. Canada the Supreme Court of Canada said the following: “The increasing difficulty with which one can find and maintain employment as one grows older is a matter of which a court may appropriately take judicial notice. Indeed, this court is often recognized age is a factor in the context of labor force attachment and detachment.” The court went on to say, and referencing another case,”barring specific skills, it is generally known to persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills.”

In the case of Iqbal Sahota v. Western Fibres Limited  a 48 year old plaintiff had word for the defendant company for 20 years. In awarding the plaintiff employee 14 months notice he referenced his age, saying that there is a connection between the employee’s age and the attainment of the primary objectives of notice.  This is not a new or radical concept.  In Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12  Iacobucci J., writing for the court,  acknowledged that judicial notice of the connection between an employee’s age and his/her ability to find alternate suitable work provides the juristic basis for the role played by an employee’s age when determining what constitutes reasonable notice.  Mr. Justice Iacobucci, citing the 1990 decision of the Supreme Court of Canada in McKinney, said the Court has often recognized age as a factor in the context of labour force attachment and detachment.

However, it is important to note that while age is an important factor in determining severance, an employee not being in his or her advanced years will not necessarily militate against a very significant notice. If other relevant variables for the calculation of reasonable notice are present.
 

Request a Free Consultation

Should your severance or reasonable notice be reduced because you got another job?

wrongful dismissal photoThis is a question that I often get asked in severance package review meetings. The answer is that your statutory severance (under the employment standards act) will never be reduced if you are terminated without cause but your common law reasonable notice maybe can be. Numerous contracts of termination include a so-called “balloon clause” which includes a separation payment that will be paid to you in the event that you find another job.  Normally what is included (or what I include when I draft termination precedents) is that you will be paid 50% of the remainder of your severance if you find another job. For example, if you are paid 12 months notice and six months into your notice you end up finding another job then you will be paid the remainder three months notice normally in lump sum. This is incentive for you to find another job and double up on your income as well as incentive for your former employer to pay less severance to you and get you off the books.

If there is no balloon clause in your termination contract then term of reasonable notice (common law part of your severance) should not be reduced simply because you obtain new employment after dismissal. Damages do not stop because you have found alternate employment within the reasonable notice. This is been set out in numerous cases such as Schumacher v. TD Bank and Meyer v. Jim Pattinson industries Limited.  Reasonableness of notice is determined at the date of your termination – the point at which your entitlement to notice arises. The efforts of the employee to obtain alternate employment are more properly related to the question of mitigation, and should be addressed in calculating the actual damages versus damages thereafter. In short, the severance paid to you is calculated when you’re terminated and once that severance is agreed to by both parties is to be paid no matter if you find another job.

Request a Free Consultation

Request a free consultation

COPYRIGHT 2019 © WILL DAVIDSON LLP