Written by: Megan Riddell This recent personal injury decision from Justice Wilson of the Alberta Court of King’s Bench speaks to the value of social media evidence at trial in undermining a plaintiff’s credibility. Facts The Plaintiff was rear-ended by the Defendant vehicle on September 30, 2016. Although photos of the damage to both vehicles showed minor and superficial damage, both vehicles were written off due to the estimated repair costs. Trial commenced 7 years after the collision. At the outset of trial, the Defendant admitted full liability for the collision. The remaining issue was the extent of the Plaintiff’s entitlement to damages. The Defendant accepted that the Plaintiff was injured to some degree as a result of the collision. However, there was conflicting expert evidence before the Court on the injuries the Plaintiff sustained. At issue was whether the Plaintiff proved the following injuries on a balance of probabilities: mild traumatic brain injury, post-traumatic headaches, TMJ, somatic symptom disorder, diffuse chronic pain syndrome, cervical myofascial syndrome, adjustment disorder, anxiety, and PTSD. Following the motor vehicle collision the Plaintiff took two medical leaves from his workplace, the first being in December 2018 or January 2019 lasting four months. His second medical leave began June 1, 2023, which continued to the time of trial. The position of the Defendant was that the Plaintiff should have recovered from the injuries he sustained in the collision within 6 – 12 months. The Defendant argued that the Plaintiff had exaggerated the extent of a number of alleged injuries or did not sustain them whatsoever. Further, it was the Defendant’s position that the Plaintiff failed to mitigate his losses by failing or refusing to participate in various recommended treatment programs. At trial, the Plaintiff relied upon the Calgary Police Service collision report form that indicated he had sustained a minor injury, as assessed at the scene. Justice Wilson noted that the injury could not have been extensive or serious, as both EMS and the police in attendance assessed the Plaintiff and allowed him to drive himself home in his own vehicle. The Plaintiff did not drive himself to the hospital. Upon attendance at the hospital two days later, the Plaintiff reported a potential loss of consciousness at the scene of the collision, development of a headache, finger tingling, and lower back pain. The headache has resolved by the time the Plaintiff was seen by a physician. A spinal X-ray revealed no injury. The Plaintiff was diagnosed with “Whiplash” and prescribed Tylenol, Advil and physiotherapy. The Plaintiff declined to fill his prescriptions but attended physiotherapy. The Plaintiff began physiotherapy on October 17, 2016. He reported ongoing headaches, fatigue, memory difficulties and sleep disturbance. The Plaintiff’s family doctor noted the same symptoms during his appointment on December 8, 2016, and again on February 16, 2017 before reporting a period of plateau in the Plaintiff’s recovery despite four months of treatment through physiotherapy. The Plaintiff was referred to specialists, who recorded the Plaintiff’s complaints of poor memory, daily headaches, neck pain, trouble sleeping, numbness and dizziness. However, all diagnostic imaging of the Plaintiff’s spine and head were normal. While the Plaintiff returned to his employment full-time, he reported feeling less effective due to his memory problems. He did not return to the recreational skiing or hockey he previously enjoyed. Throughout 2018, the Plaintiff continued to report memory difficulties, neck pain and daily headaches to his treating physicians. He could not recall the names of people he had known for years. These reports continued for the remainder of the year, indicating a continued plateau in his recovery. The Plaintiff began treating with weekly massages. An optometrist recommended he discontinue using contact lenses in favour of wearing glasses, and he began to wear a mouth guard at night. However, the Court noted that the Plaintiff was reportedly stressed at his appointments and did not want to recount his medical history for his physician. He only visited a psychologist twice and declined a referral for counselling. In September 2018, Plaintiff’s employment was terminated. His evidence at trial was that he was let go due to lack of performance. He opined that his memory issues, such as failing to recognize clients he was scheduled to meet with made it “hard to develop business”. Justice Wilson noted that absent the Plaintiff’s claims of pain and suffering and the claimed disabling effects of his pain arising from the collision, there was no objective clinical evidence such as X-rays or MRI results of any bodily injury which might explain his alleged pain. In commenting on the evidence led at trial to support the Plaintiff’s claims regarding his termination, Justice Wilson provides: [24] The disabling effects which were so significant as to result in being fired for an alleged lack of performance at his job comes only from the plaintiff. The termination letter gives no reason or “cause” for the termination. [25] And of singular note, no one from [the Plaintiff’s former employer] was called by the plaintiff as a witness. Nor was any customer of the plaintiff called who could provide some type of corroboration of his claims. Medical Leave #1 and Findings on Credibility Within a few months of his termination, the Plaintiff managed to obtain employment with a higher salary at an alternate employer. However, the Plaintiff’s evidence was that he began a medical leave shortly after beginning his new job, which he alleged was due to “pain and suffering” as a result of the collision. The Plaintiff’s testimony was clear that he took this leave on the strong recommendation of his family doctor, Dr. B. Reports from a number of medical professionals indicate the Plaintiff advised them of the same four-month leave beginning at the start of 2019 and ending in April 2019 when the Plaintiff was able to return to work. The Plaintiff’s account for the reasoning behind his leave of absence was inconsistent in his reports to the professionals; to some he advised he was taking time off due to heart problems, to others he reported taking leave due to low mood, to his physiatrist he failed to mention having to take any leave whatsoever. In contrast, the reports of the Plaintiff’s family doctor Dr. B indicate the decision to stop working was made solely by the Plaintiff. Although Dr. B noted that she would ‘consider’ a medical leave of 3 months in June 2019, the Plaintiff had already returned to work months earlier based on his testimony. The contradictory evidence, in combination with the Plaintiff’s failure to call Dr. B as a witness to clarify the reasoning, duration or timing of his medical leave led the Court to conclude that the Plaintiff “significantly misrepresented the situation under oath”, and in his meetings with the various medical professionals. Ultimately, the Court found that the Plaintiff’s evidence was filled with “falsehoods” that were “designed to advance his claim” rather than being caused by weak memory. He was held to be neither credible, nor reliable in his testimony. This finding undermined the Plaintiff’s evidence significantly, including that through which the Plaintiff hoped to establish significant ongoing pain and cognitive difficulties. Medical Leave #2 and Social Media Evidence The Plaintiff commenced his second medical leave on June 1, 2023, which was ongoing to the time of trial in November 2023. Based on the testimony of the neuropsychologist who treated the Plaintiff, this medical leave from work was the Plaintiff’s idea. The Plaintiff repeated numerous times during his testimony that his post-collision medical condition prevented him from being a productive and engaged business development officer, with his headaches in particular causing him to have to frequently leave meetings early. To support his evidence, two of his colleagues (although not co-workers or clients of the Plaintiff) were called who testified to some very minor symptoms of unknown frequency, largely based on what the Plaintiff had told them. The Court found their evidence to be unpersuasive. Social media photos of the Plaintiff’s attendance and participation in several charity events were entered at trial. Based on his social media and CV, the Court found that the Plaintiff was able to organize numerous community events, bring in corporate sponsors and organize volunteers as part of his employment. In two instances, the Plaintiff organized the charitable golf tournament named the “Annual Armbruster Invitational”. The Court found that “his social media postings revealed an individual who was not physically, mentally, or emotionally unable to participate in activities at all and was, in fact, excited, engaged and enthusiastic when working with other people”. Further undermining the Plaintiff’s evidence, were a number of YouTube videos hosted by the Plaintiff that spoke to various aspects of hockey coaching, called “Coaches Corner”. The videos dated from May 2020 – May 2021. No signs of discomfort, pain, or memory problems were seen in the 60–90-minute videos played in Court. The Plaintiff was engaged, passionate, clear and focussed in his interviews. He recognized one player from a playoff tournament he had participated in 18 years previous. He was able to memorize a number of interesting facts about his guests on the channel. Overall, the Court found that “The plaintiff in those videos displayed not one of the numerous, serial complaints about pain discomfort and the various types of suffering detailed in his numerous attendances upon all of the expert witnesses called in this case and repeated before me.” While the Plaintiff’s evidence in his direct examination was that he disliked driving since the collision, as he found it dangerous and was worried about being involved in a second accident, another social media post was played for the Court. This video was clearly shot by the Plaintiff who was driving his vehicle while recording on his cell phone with one hand, singing a Kenny Chesney song. In dismissing the Plaintiff’s allegation of PTSD following the collision, the Court held that “I do not believe that anyone in such a condition as he claims, would willingly take any risk in recording this video while driving, as it would obviously risk the very result that he claimed he so deeply feared with respect, I also reject any diagnosis of PTSD arising from this low-speed fender bender.” Post-Collision Income Loss The Plaintiff’s position was that his injuries and symptoms from the collision were so debilitating that he lost his employment and income. Based on the economist’s report, the Court determined in fact that the Plaintiff’s income “skyrocketed” in the year following the collision to two and a half times his 2016 salary. His employer gave him a raise, prior to the Plaintiff’s termination. The Court noted that no one from the Plaintiff’s former employer was called to testify to clarify the circumstances of the Plaintiff’s termination. As for the Plaintiff’s current employer, no witnesses were provided to accurately establish the Plaintiff’s start date or his salary. There was a lack of evidence led by the Plaintiff to establish his claim that he was not able to do the work required of him, or why he stopped working in 2023. The Plaintiff’s income continued to excel from 2020 onward. The Court found that: “[135] All that one can safely conclude is that the plaintiff was apparently able to do the job expected of him by his employer. [136] He testified that he only did so by fighting the pain and the debilitating effects of his pain. And at great personal sacrifice to his own personal, emotional and psychological condition. [137] But no one besides the plaintiff tells me or tells the experts that this is what he was going through. [138] No coworker, no client, no office colleagues at Mark’s Hauling was called. No reason was advanced for not calling them. Meanwhile his income had sky rocketed, again, which might suggest that whatever he was encountering was actually no type of impediment at all.” At trial, Plaintiff’s counsel admitted that the position of the Plaintiff was not that he could not work at all, but rather that he can work only in a less stressful position than he had been at the time of the collision. The Court had difficulty with the evidentiary record on this submission, “[…] nothing was offered by way of example. Nor what be the requisite degree of less stress? Nor whether it might be a job that would interest the plaintiff. Nor whether it would pay satisfactorily.” The Court ultimately drew an adverse inference from the Plaintiff’s failure to call witnesses to corroborate his claim of poor work performance resulting from the collision. He failed to prove any loss of income, and the Court made no award for past loss of income, future loss of income, or loss of earning capacity. Ongoing Symptoms and General Damages During his testimony, the Plaintiff’s evidence was that he continued to suffer from “almost daily” headaches caused by his neck pain, low mood, poor sleep, memory problems, migraine headaches, numbness in both hands and lower back spasms. The Court accepted that the Plaintiff was involved in a low impact collision, that resulted in whiplash and a minor concussion, long-term neck pain, back pain, headaches, discomfort and “some impairment of bodily movement” that has “waxed and waned” over the seven years since the collision. These symptoms ought to have resolved within 12 months of the collision. The Court refused to accept the Plaintiffs evidence of the extent and duration of his pain and suffering, awarding him $70,000 in general damages. Future Cost of Care and Failure to Mitigate The Court struck the Plaintiff’s claimed future care costs as they related to unproven injuries such as TMJ. Based on the Plaintiff’s accepted reports of ongoing pain, the Court awarded costs for continued periodic massage, Advil, chiropractic adjustments, psychological counselling, and the contents of a Life Care Plan entered at trial. Regarding the Defendant’s position that the Plaintiff failed to mitigate his damages, the Plaintiff’s only responding submission was that he did not know until 2019 that he may have suffered from somatic symptom disorder. This was deemed irrelevant by the Court, who was satisfied that the Plaintiff was offered a regime of treatment in response to his complaints, to which the Plaintiff failed to respond. After summarizing the applicable common law jurisprudence in BC and AB on failure to mitigate, the Court concluded that the Plaintiff’s conduct was unreasonable having regard to all the circumstances of his treatment efforts and resulting minimal recovery. The Court reduced all heads of damage by 40% due to the Plaintiff’s failure to mitigate. Comment: At trial, the plaintiff bears the burden of proven any alleged injuries on the balance of probabilities (the Court must find that it is “more likely than not” that the plaintiff sustained each injury claimed). A plaintiff’s credibility as a witness is central to their ability to convince the presiding Justice of each aspect of their claim. In Armbruster, the Plaintiff’s credibility was completely undermined in the face of contradictory evidence sourced from social media that indicated that the Plaintiff was a healthy, fully recovered, and active individual, quite the opposite to how he painted himself during his own testimony. As a result, the Court could not accept the Plaintiff’s evidence as to the severity or length of the Plaintiff’s symptoms, which had a significant impact on his damages award.