The Supreme Court of Canada will hear the following five appeals this week:

Feb. 13 — Quebec — City of Westmount v. Richard Rossy
Commercial law: The family of a man who was killed when a tree fell on his car sued the City of Westmount for $1.3 million, claiming it was liable for not maintaining the tree. The city sought to dismiss the action on the grounds that the damage was caused by an automobile and compensation was governed by the Automobile Insurance Act. The family is also seeking changes to the province’s no-fault automobile insurance law. The Quebec Superior Court allowed the city’s motion and dismissed the family’s claim. That decision was later set aside by the Quebec Court of Appeal.

Feb. 14 — Newfoundland & Labrador — R. v. T.L.M.

Criminal law: The complainant’s uncle was convicted of sexually assaulting her when she was eight to 10 years old. The trial judge admitted an agreed statement of facts relating to his prior conviction for sexually assaulting another eight-year-old girl. The Court of Appeal allowed the uncle’s appeal and ordered a new trial. The issue is whether the trial judge erred in admitting the similar fact evidence. There is a publication ban in the case.

Feb. 15 — British Columbia — Sam Tuan Vu v. R.

Criminal law: After forcibly confining a man for eight days after he was abducted by others, Sam Tuan Vu was convicted of forcible confinement but acquitted of kidnapping. The Crown appealed the acquittal and the B.C. Court of Appeal convicted him of kidnapping on the basis that he was a party to the offence. There is a publication ban in the case.

Feb. 16 — Quebec — Riccardo Bellusci v. R.

Criminal law: Inmate Riccardo Bellusci was charged with assaulting a correctional officer. He claimed he had been assaulted by the officer and was acquitted at trial. Bellusci had also been charged with using violence against a justice system participant but the trial judge granted a stay of proceedings. The Quebec Court of Appeal set aside the stay of proceedings and remitted the case back to the trial judge.

Feb. 17 — British Columbia — Joan Clements, by her Litigation Guardian, Donna Jardine v. Joseph Clements

Torts: Joan Clements sued her husband after she was severely injured while riding on a motorcycle he was driving. The trial judge found the husband was negligent and therefore liable for his wife’s injuries. The B.C. Court of Appeal ruled in favour of Joseph Clements by setting aside the trial judge’s order and dismissed Joan’s action.

Update: The Supreme Court will also release its decision in S.L. v. Commission scolaire des Chênes on Feb. 17 at 9:45 a.m. The case, originating in Quebec, questions whether parents have the right to choose their children's education as it relates to religious instruction. The appeal was heard on May 18, 2011.

A 27-year-old Canadian man is seriously injured in a workplace accident that has left him unable to sit for more than 15 minutes a day, ended his social life, and left him without a job.

Adam Wagman (photo: Kendyl Sebesta)

The defence counsel in the case brings a motion forward requesting disclosure of all Facebook photos, videos, wall postings, and other relevant information to the man’s personal injury case, as well as access to his hard drive.

Because the injured plaintiff is claiming nearly $6 million in damages, defence counsel argues the motion is necessary to establish the extent to which the man is actually injured.

Should the motion be granted?

According to Superior Court Master Ronna Brott the answer could very well be yes.

Making the comments at an Ontario Bar Association Institute insurance law debate between Lawson LLP lawyer Barry Marta and Howie Sacks & Henry LLP lawyer Adam Wagman today, Brott handed down her ruling in the fictional case, saying while she would order the production of the Facebook profile files, she would not do the same for the hard drive.

“Many people I’m sure would be surprised to know that, where the information requested in the motion is relevant to the case, it may very well be granted without any infringement into the plaintiff’s privacy, particularly where that Facebook profile was publicly provided,” says Brott. “In this case, I would say Facebook profiles are producible documents and they must be preserved.”

In the mock hearing, Marta argued because the plaintiff had control of his Facebook profile and because the information contained in his profile would be relevant to his personal injury claim and corresponding disability claim, his motion for disclosure should be granted.

However, Wagman argued the request was no different that asking to snoop through the plaintiff’s home and rifle through his personal things, saying casting a wide net for the plaintiff’s entire personal information found in his Facebook profile would be nothing more than a “phishing scheme.”

Brott ultimately agreed with Wagman, adding plaintiff’s counsel must take care to ensure Facebook searches are done soon and quickly to ensure the client understands what can and cannot be produced and disclosed.

To help lawyers with this task, Wagman offered the following advice to plaintiff’s lawyers today at the OBA’s annual Institute held at the Westin Harbour Castle in Toronto:

1.    Explain to clients what they can and can’t do on Facebook, and more importantly what they should and shouldn’t be doing within the context of their case, particularly in terms of what personal information may and may not be produced in court.

2.    Tell clients to set every aspect of their Facebook profile to the highest possible privacy settings, and make sure they actually do so.

3.    Produce something in your documents that shows the master you have clearly made an effort to identify what is and is not relevant in the case when it comes to the client’s Facebook profile. If nothing is relevant, still produce at least something to prevent eyebrows from being raised.

4.    Keep pushing the issue of privacy and phishing in your case and really work to push back against the idea that your client’s profile should be public.

“Make sure you do your job and really investigate every aspect of your plaintiff’s digital profile and make sure you are educated about what could be producible in court,” says Wagman. “Not only is it smart, but you have an obligation to your client to do so.”

Marta added defence counsel can also take similar steps.

“Get as much information about the plaintiff as you can and make sure it is extremely detailed,” says Marta. “Get a copy of Facebook’s user agreement, and most of all, make sure you have enough evidence. The bottom line is you need to do your due diligence.”

A controversial loophole in the Occupational Therapy Act has allowed the Ontario Superior Court to apply discretionary jurisdiction in the assessment of future care costs for the first time striking down a London, Ont. man’s argument for a stricter interpretation of the act.

Randall Scott Cook was ordered to undergo an in-home occupational therapy assessment within the next two weeks by Justice Dougald McDermid Jan. 16.

Cook had previously sought a “substantial” amount in future care costs in 2010, according to Cook v. Glanville and The City of London.

He also argued that an order by the City of London requiring him to complete an in-home therapy assessment to determine the future care costs he originally sought wasn’t necessary.

Cook also argued the city’s order couldn’t be granted by the Superior Court solely on the issue of trial fairness, particularly when there was no evidence that the assessment was necessary for the diagnosis of a health practitioner in determining his physical limitations. He also produced an affidavit from Dr. Michael Devlin, a Toronto doctor who specializes in physical rehabilitation, to help determine future care costs.

But, in an unusual move, McDermid ruled the assessment was in fact necessary, writing in Cook, that it was necessary “not for . . . any diagnosis that he [Devlin] might make but that taken with his diagnosis it is required to permit the preparation of a future care cost report. . . .

McDermid cited Superior Court Justice Thomas Granger’s comments from the 2010 Vanderidder v. Aviva Canada Inc. decision: “The jurisdiction to order non-medical expert assessments is an area of controversy in Ontario courts. The decisions on this topic divide into two streams at the Superior Court of Justice level, and there does not appear to be a Court of Appeal decision settling the matter. In the first set of cases, courts generally interpret s. 105 and r. 33 narrowly, allowing non-medical assessments only if required as diagnostic aids for medical practitioners. The divergent stream invokes the discretionary inherent jurisdiction of the court to ensure justice is done in any particular case. In these cases, a non-medical expert assessment is usually ordered in the interests of fairness and justice.”

But McDermid went on to note that because no decision existed from the Court of Appeal regarding non-medical expert assessment in cases specifically involving future care costs, he was required to refer to the Divisional Court for the first time, which leaned toward the latter stream.

“In the absence of any decision from the Court of Appeal, I am persuaded to follow the decision of the Divisional Court in Desbiens [v. Mordini] as enunciating the proper approach to this issue,” wrote McDermid.

As a result, the judge ruled Cook must attend the in-home assessment within the next two weeks, with submissions on costs to be filed in the next 30 days.

If the matter goes to trial, the health practitioner who conducted the assessment could be called as an expert witness, according to Cook.

A key case that raised eyebrows among the personal injury bar will be before the Ontario Court of Appeal this week.

Kusnierz v. The Economical Mutual Insurance Co. took a restrictive approach to the question of combining physical and psychological injuries when determining whole-body impairment. The plaintiff, Robert Kusnierz, had his left leg amputated following an automobile accident in 2001. He has since found it difficult to find a suitable prosthetic, and while Superior Court Justice Peter Lauwers deemed him to be a credible witness, he determined his impairment to be short of the 55-per-cent catastrophic threshold.

Noting recent legislative changes to reduce benefits in order to contain auto insurance premiums, Lauwers said the statutory accident benefits schedule makes a bright-line demarcation between mental and behavioural disorders and other impairments. “The guides deliberately do not permit the mental and behavioural disorders in Chapter 14 to be assessed in percent terms and combined with the percentage values derived from impairments assessed under the other chapters of the guides for the purpose of determining whole person impairment,” Lauwers wrote last October.

The decision came as a surprise to plaintiffs’ lawyers who worry that interpreting the legislation in that way will lead to unjust results for their clients. Harry Steinmetz of Fireman Steinmetz in Toronto retained lawyer Paul Pape to conduct the appeal for Kusnierz that’s set for Wednesday. Also appearing for Kusnierz is Pape’s colleague David Steinberg. Lee Samis, of Samis & Co., is representing the insurance company. The case has also attracted at least three interveners.