Tag Archives: social media

Turn in the tide on Facebook photos as evidence?

13 Jan

I believe we’re seeing a slow retreat from the view expressed in Leduc v Roman, a 2009 Ontario case in which Justice Brown suggested photos on Facebook are presumptively relevant (in a non-production scenario) when a Facebooking plaintiff claims loss of enjoyment of life.

Stewart v Kempster is the new Ontario case that awkwardly distinguishes Leduc and is similar to Fric v Gershman from British Columbia. Both suggest that pictures of people who claim to have suffered a loss of enjoyment of life lounging around looking happy are generally not relevant (or have limited probative value), but pictures of skydiving, surfing and other action photos might be different.

Now, from British Columbia again, we have the following statement from Dakin v Roth, a January 8th British Columbia Supreme Court trial decision in which the plaintiff produced Facebook photos that the defendant adduced, perhaps without dispute. Justice Cole says:

The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.

I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v Narayan, 2012 BCSC 734 (CanLII), 2012 BCSC 734 (at para. 30) in respect to Facebook photos: “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.

Hat tip to Erik Magraken of the BC Injury Law and ICBC Claims Blog. Here is a link to an archive of Erik’s posts on Facebook photos in British Columbia personal injury cases.

Employee benefits…there’s an app for that!

26 May

It was only a matter of time before app-mania struck the pension and benefits industry.  In the past few weeks, it seems like  industry publication has an article about another service provider launching an app or using social media as a communications tool.

In recent years, we’ve seen the rise of auto-enrollment, online planning tools, employee websites and portals, but the introduction of apps may bring employee engagement and access to their benefit or retirement savings information to a new level.  For example, Sun Life Financial has announced that it plans to offer a free mobile application for group benefits and group retirement and savings plan members.  The app will allow plan members to submit benefit claims or check the balance of their retirement plan accounts.

At a time when defined contribution plan sponsors are concerned about the lack of engagement by members responsible for investing their plan assets, the advent of apps has the potential to increase participation and interaction.  The ability to see your pension plan account balance at the press of a button (or tap of the screen as the case may be) also enhances transparency and may help increase member awareness and education.

Other benefit providers are also jumping on the app-bandwagon, capitalizing on the increasing number of people with smartphones.  For example, Morneau Shepell has launched “My EAP”, which will provide users with access to interactive tools, support resources (such as e-counselling) and other employee assistance programs.  Many of these features are already available on Morneau’s website, but the app enhances the ease of access for people on the go, giving access to EAP services anywhere and anytime they are needed.

The use of apps and other social media technology is creating new opportunities for communication and disclosure with pension and benefit plan members.  However, as always, apps and social media must be integrated into an overall communications strategy.  Consideration must also be had to ensuring the privacy and security of such sensitive personal information.

Specifically with reference to pension plans, plan administrators must also make sure they are complying with any applicable rules regarding the use of electronic communications.  Governments have implemented a number of rules regarding when and how electronic communications can be used in the administration of a pension plan.  I will discuss this in more detail in an upcoming post.

Social Media Use by Teachers and Students: OCT Recommends Limits

12 Apr

The Ontario College of Teachers has recently issued a professional advisory recommending strict limits on interactions between teachers and students through social media.  The advisory emphasizes that teachers are professionals, who are held to high standards of conduct, in both their professional and private lives.  Since inappropriate electronic communications with students – including those outside of school hours and unrelated to school matters – can lead to teacher discipline, and even criminal charges, the OCT recommends that teachers take certain precautions in their electronic communications, particularly through social media.  Among other guidelines, the advisory recommends that teachers:

  • not be “friends” with students on Facebook, refrain from “following” students on Twitter, and otherwise avoid personal connections with students on social media;
  • notify parents before using social media for classroom purposes; and
  • use appropriate privacy settings when using social media, to ensure that students may not access personal or inappropriate postings.

The recommendations are not surprising, given the high standards of conduct expected of teachers, and the perils teachers may face from inappropriate use of electronic media – as illustrated by the recent Ontario Court of Appeal decision in R. v. Cole.

Although specific to the educational context, the OCT’s professional advisory reflects the importance of addressing the impact which social media, and electronic media in general, can have in various settings.  Employers should consider whether the dynamics of their workplace justify guidelines or policies on the appropriate use by employees of social media, for example, in their interactions with each other or with customers, suppliers or other parties.

A link to the OCT’s professional advisory is here, and a related CBC article is here.

Developing Your Social Media Policies

10 Jun

I presented “Developing Your Social Media Policies” today at a conference of the Association of Municipal Managers Clerks and Treasurers. It was nice to present together with two officials from the City of Barrie, who highlighted the City’s very progressive (and slick-looking) Facebook Fan page initiative, which you can check out here.

I’ve spoken lots on the subject of workplace law and social media lately, but today was more about policy, and specifically, how to use it to both empower employees and take control of how they speak about matters of corporate interest. Slides are below. Enjoy!

Managing illegitimate employee expression

20 May

I spoke at our client conference today on “managing illegitimate employee expression.” The presentation below starts with the public versus private conduct material I’ve presented on frequently of late, then moves to a topic called “when their expression becomes yours” (on how to structure corporate social media programs) and a topic called “expression by outsiders” (on managing illegal communications targeted at employees and attacking the employer’s own repuation). I hope these are helpful.