Collection of Case Law on Facebook Discovery – Ontario

By | January 8, 2020

Garacci v. Ross, 2013 ONSC 5627 (CanLII)

In 2008 the plaintiff was struck from behind by a motor vehicle operated by the defendant while she was walking on the side of a roadway. She claimed significant damages for serious and permanent injuries sustained. At her examination for discovery, the plaintiff testified that she is now unable to engage in activities that she previously enjoyed such as soccer, water skiing, competitive dancing and snowboarding. She freely admitted to participating in other activities such as swimming, attending concerts, traveling to Mexico and going to the gym among others. The defendant brought an application for order to compel the plaintiff to produce some 1100 photographs posted in the private portion of her Facebook profile. The defendant argues that the photographs are relevant to the issue of the plaintiff’s loss of enjoyment of life and quantum of damage. In support of the application, the defendant point to 12 publicly accessible photographs in the plaintiff’s Facebook profile which shows the plaintiff socializing with friends, having dinner, climbing a tree etc. The defendant argued that if such photographs exists in the public profile of the Facebook account, similar photographs will also exist among the 1100 photographs in the private profile. The plaintiff argues that the photographs are not relevant, and the request amounts to an invasion of her privacy.

Held: (1) The publicly accessible photographs in the plaintiff’s Facebook profile which show her socializing with friends are consistent with her evidence at discovery. (2) The evidence before the court is that the 1100 photographs have been reviewed by a law clerk and the private photographs are consistent with the public photographs obtained by the defendant. (3) The “semblance of relevance” test no longer applies in the discovery process. The applicable test now is the stricter “relevance” test.

“In addition, I have reviewed approximately 10% of the 1100 photographs at random. I can confirm that none of those photographs depict Christina as engaging in any significant physical activity. They show her socializing with friends, sitting in chairs, fishing, pumping gas, having a beer at a party and other similar low impact activities.” @  ¶8

Young v. Comay, 2013 ONSC 7552 (CanLII)

The plaintiff brought this action for injuries arising from a vehicular accident in 2009. The plaintiff alleges that she suffered severe and permanent injuries resulting in out-of-pocket expenses, loss of income and economic opportunity as well as loss of enjoyment of life. She also alleges inability to perform certain function which she hitherto was able to perform prior to the accident. The defendant brought a motion for order compelling the plaintiff to produce among others, all photographs of the plaintiff posted in this Facebook profile as well as her complete Facebook wall. Previously at her examination for discovery, the plaintiff testified that she did maintain a Facebook account solely for keeping in touch with her family. She also acknowledges the posting of about 10 family photographs of herself and her children. All the photographs were taken before the accident.

Held: (1) A significant change impacting the scope of delivery took effect in January 1, 2010 with the replacement of the “semblance of relevance” test (“relating to any matter in issue”) with a new test of “relevant to any matter in issue”. (2) The plaintiff testified at her examination for discovery that the photographs in question were of the nature of family photographs, did not depict her engaging in any activity, and were taken before the accident. The defendant has not led any evidence to challenge the plaintiff’s testimony. There is no evidence that the plaintiff has failed or omitted to disclose any relevant document by failure to produce her Facebook profile.

Stewart v. Kempster, 2012 ONSC 7236 (CanLII)

In an action arising out of a motor vehicle accident, the plaintiff alleges that she sustained permanent serious impairment to an important physical and psychological function resulting in inability to participate in recreational and social activities as prior to the accident. At her examination for discovery, the plaintiff testified about her post accident trips within Canada, United States and Mexico. She also testified that she has a Facebook account, and among the photographs in the account are “one or two” photographs of her “sitting by the pool” on her trip to Mexico. There is no photograph of the plaintiff taking part in any athletic activity other than sightseeing. The defendants brought a motion under Rule 30.06 for an order compelling the plaintiff to produce all vacation photographs taken after the accident, and all content on her private Facebook profile.

Held: (1) To succeed the defendant must furnish evidence to show that relevant documents have been omitted from the plaintiff’s affidavit of document. The photographs sought by the defendants say nothing about the physical limitations alleged by the plaintiff. Photographs of the plaintiff engaged in sightseeing, which is not an athletic activity, is not of any relevance to any issue in the case. (2) Request for all content in the plaintiff private Facebook profile is overly intrusive and based on mere speculation.

Ottenhof v. Ross, Kingston Police Services Board et al, 2011 ONSC 1430 (CanLII)

The plaintiff sued the defendants claiming $5 million in damages for injuries sustained from alleged assault by an officer. Following an internet search, the defendant became aware of the plaintiff’s Facebook profile. At the examination for discovery, the defendant requested the production of a complete copy of the plaintiff’s Facebook profile. The plaintiff refused to the production. The defendant thereafter brought this motion to compel refusal on an examination for discovery. The plaintiff is of the view that the request is overly broad and overly intrusive.

Held: The defendants were granted leave to cross-examine the plaintiff, at his expense, on his affidavit of documents to determine the relevant content (if any) of his Facebook account.

“The principles that emerge from the authorities are as follows. The pages at a social networking site or internet site including a facebook page is a document for the purpose of discovery and should be listed in a party’s affidavit of documents, if relevant (“relating to any matter in issue”). The mere existence of a facebook account is insufficient to require its production on discovery. Whether it is listed in the affidavit of documents or not, the responding party is entitled to cross-examine on the affidavit of documents to determine firstly if it exists, secondly the relevance of the contents, and finally production of the relevant portions for which privilege is not claimed. Access to the party’s facebook account through the party’s password is overly intrusive unless the party is claiming as part of his or her damages claim a level of disability that inhibits his or her computer time. In those circumstances, a forensic examination of the facebook account may be necessary.”

McDonnell and Levie, 2011 ONSC 7151 (CanLII)

The Plaintiff brought this action for damages allegedly arising from a motor vehicle accident in 2007. In her statement of claim, she alleged that injuries sustained from the accident has resulted in permanent loss of physical, mental and psychological functions, and thus permanently diminished her enjoyment of life. At the Examination for Discovery, the plaintiff confirmed ownership of a Facebook account where she posted pictures of herself. When prompted, she testified that she could not immediately recollect whether the pictures in her Facebook account would show her engaged in physical activities prior to the accident, but asserted that the injuries from the accident has continued to limit her physical activities. She claimed among others that she no longer golfs, does not spend as much time as she used to on computers, and has difficulty opening jars, doors knobs and lifting. The issue in this motion is whether a production order should be issued against the plaintiff for the production of pictures from her Facebook account documenting her engagement in physical activities. The defence took the position that they are entitled to production of the pictures as they are relevant and probative. The plaintiff on the other hand opposed the motion on the ground that the defence has failed to show that there are pictures on the Facebook account that are relevant, that the privacy of her Facebook account outweighs any probative value.

Held: (1) The admissibility of postings found in the “private” section of a litigant’s Facebook account is governed by the basic rule of relevancy to any matter in issue thus Rule 31.06(1). Though the court is obligated to consider the requirement of proportionality before making a production order, Rule 29.2;  (2) “Where the plaintiff puts her social enjoyment of life in issue and alleges various activities that she is unable to do then photographs of her social life and activities, before and after the alleged trauma, which she concedes are on her Facebook account, are produceable as having some semblance of relevance and should be part of her Affidavit of Documents.  Whether they are ultimately produceable at trial will be a determination made by the trial judge.” (3) The plaintiff put her social life in issue when she alleges in her statement of claim that the accident has negatively impacted her ability to engage in certain activities. Her ability to engage in these activities are part of the action and thus brought into the public domain. Since the plaintiff has posted in her Facebook account pictures of herself before and after the accident for other to view, her privacy argument does not carry much weight.

Frangione v. Vandongen et al., 2010 ONSC 2823 (CanLII)

This plaintiff brought this action for damages arising from injuries sustained in two motor vehicle accidents in 2002 and 2003. He was declared catastrophically impaired in 2008, and alleges that he cannot get back into the work force. The plaintiff was 23 at the time of the first accident. At his examination for discovery, he was questioned about his computer usage including his Facebook account. The plaintiff owns a personal computer in his home where he resides with his mother. The mother also uses the computer and so does his sister when she visits home. The defendants sought to compel the plaintiff to produce all materials contained in his Facebook profile including postings, messages and photographs. The plaintiff having produced materials in his public Facebook profile, asserts privacy concerns over materials in his private Facebook profile.

Held: The public Facebook materials produced by the plaintiff are relevant to the issues in the action. It can be safely inferred from a review of the public profile that similar relevant documents are also contained in the private Facebook profile. While it is possible that the Facebook materials may be used by the defendants to attack the credibility of the plaintiff, the primary use of such material will be to assess the plaintiff’s claim for damages for loss of enjoyment of life and his ability to work.

Leduc v. Roman, 2009 CanLII 6838 (ONSC)

This action arose from a vehicle accident in 2004. The plaintiff claims damages for alleged negligent driving by the defendant resulting in the plaintiff’s loss of enjoyment of life and limitation on his personal life. At the Examination for Discovery, the plaintiff was never questioned as to whether he maintains any Facebook profile. The plaintiff told a psychiatrist hired by the defence to conduct his evaluation that although he has no friend in his current area, he has a lot of friends on Facebook. Acting on this information, the defence counsel conducted a Facebook profile search and discovered that the plaintiff kept a Facebook account. While the publicly accessible section of his account shows his name and profile picture, access to other information is restricted to his “friends” hence not accessible to defence counsel. The defence moved for an interim order for preservation and production of all information contained in the plaintiff’s Facebook profile. At the hearing of the motion, Master Dash granted an order for preservation. With respect to production of materials on the Facebook profile, Master Dash held that the plaintiff’s Facebook profile pages were “documents” within the control of the plaintiff. He also held that the Facebook profile could contain information that “might have some relevance in demonstrating the plaintiff’s physical and social activities, enjoyment of life and psychological well-being”. That notwithstanding, he refused to order production of the plaintiff’s Facebook profile on the ground that the defendant failed to discharge the onus that the Facebook profile contains relevant materials. He noted that the defendant had the opportunity to ask at the discovery whether the Plaintiff had photos (electronic or otherwise) that are demonstrative of his life style but failed to do so. The Master was of the view that mere speculation as to the content of the plaintiff’s Facebook profile or what may be contained on a ‘typical’ Facebook profile is not sufficient to order production, more so taking into consideration the Plaintiff’s privacy interest. The Master compared the Plaintiff’s request for production of all information in the defendant’s Facebook profile to a fishing expedition, “far too broad and has not been restricted to specified relevant items.”

Held: (1) To succeed, a motion under Rule 30.06 require proof of evidence (and not mere speculation) that potentially relevant document exists; that the document has not been disclosed by the holding party and that the requesting party does not have access to the documents. The plaintiff having set his privacy options to limit access to posted materials to his “friends”, the defence does not have access to the documents. (2) Posted materials in online social networking sites like Facebook are “data and information in electronic form” and qualify for production under the Rules of Civil Procedure as “documents”.  Thus if a party to a litigation has Facebook postings that “relates to any matter in issues” in the litigation, the party has an obligation to identify such content in the affidavit of documents. (3) Where a party to the action maintains a public and private profile settings in his Facebook account, and access to the latter is limited to “friends”, a reasonable inference can be made from the content in the public profile that similar content likely exists on the private profile, and an order can be made for the production of the similar contents on the private profile. (4) A party with a private Facebook profile is in no better position than another with a publicly-accessible Facebook profile, they both have an obligation to identify and produce any document or posting relevant to the litigation. (5) The defendants request for production is not “a fishing expedition”. The plaintiff has control over Facebook account and the information in the account which he permitted access to designated friends. Thus it is reasonable to infer that his private Facebook profile contains information relevant to the litigation as to how the defendant has been able to lead his life after the accident. “To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.” @ 35

“Where, as in the present case, a party maintains only a private Facebook profile and his public page posts nothing other than information about the user’s identity, I also agree with Rady J. that a court can infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook’s applications to make personal information available to others.  From the general evidence about Facebook filed on this motion it is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail.  Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of “friends” with whom they can share information about themselves, and on which “friends” can post information about the user.” @ 31.

Schuster v. Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971 (ON SC)

This was an action by the plaintiff against her insurer for compensation for injuries sustained in a motor vehicle accident in 2004. The plaintiff in the statement of claim alleged that she sustained serious and permanent personal injuries which has adversely limited her ability to engage in social and recreational activities. At her Examination for Discovery, the plaintiff did not disclose the existence of her Facebook account. However, the existence of this account was discovered by a private investigator retained by the defendant insurer. The “private” profile of the account was accessible to the plaintiff’s 67 “friends”. One of such friend appears to be the plaintiff’s mother-in-law. The law firm retained by the insurer was able to access and obtain photographs of the plaintiff through the mother-in-law’s Facebook account. The defendant insurer wants access to the “private” profile with the hope that it may contain evidence to prove that the accident has not adversely affected the plaintiff’s social and recreational activities as she claims. Pursuant to Rule 45.01(1) of the Rules of Civil Procedure, the defendant brought a motion without notice to the plaintiff seeking among others a preservation order for the plaintiff’s Facebook webpage, and subsequently an order pursuant to Rule 30.06 and 30.07 of the Rules of Civil Procedure for the production of the documents from the plaintiff’s Facebook webpage.

Held: (1) There is no evidence that the plaintiff’s Facebook account contains any relevant evidence. There are no evidence of photographs showing the plaintiff engaged in activities which she claimed she has been incapable of undertaking after the accident. (2) Since the plaintiff has not listed the contents of her Facebook account in her Affidavit of Documents, in the absence of any evidence to the contrary, it would be presumed that the reason why the contents were not listed was because they do not contain any relevant evidence. (3) Although in Wice v. The Dominion of Canada General Insurance Company, it was stated that “[t]he court may also infer from the nature of the Facebook service, that other relevant documents are likely included in the Plaintiff’s profile”, the statement was obiter dicta. The evidence relied upon in the present case does not support such an inference. The court is not prepared to draw an inference from the nature of Facebook itself or the content of the plaintiff’s Facebook profile that her account could likely contain relevant information. (3) Where a party’s publicly accessible Facebook page includes photographs, a reasonable inference can be made that the private site also contains photographs as well. However, the determining factor in drawing an inference that the private page of the party’s Facebook profile contains relevant information is whether relevant information is contained on the public profile.

The proper balance between the Plaintiff’s privacy interests and the Defendant’s disclosure interests is struck by presuming from the Plaintiff’s failure to list Facebook documents in her Affidavit of Documents that these documents do not contain relevant information, but by giving the Defendant a reasonable opportunity to rebut this presumption by cross-examining the Plaintiff on her Affidavit of Documents to ensure that she has complied with her obligations in relation to it. @ 40.

Wice v. Dominion of Canada General Insurance Company, 2009 CanLII 36310 (ON SC)

The plaintiff brought this action against his insurers for medical and rehabilitation benefits as a result of brain injury suffered in a motor vehicle accident in 2003. The plaintiff seeks benefit of $5,000 per month for life under Part V of the Statutory Accident Benefit Schedule. One of the issues for determination in the motion before the court is whether the plaintiff is obligated to produce a further and better Affidavit of Document that specifically discloses information from the Plaintiff’s private Facebook profile. The plaintiff’s Facebook profile contains information regarding his social activities, as well as photographs of the plaintiff engaging in social activities.

Held: Although this is not a tort case, it raises issues related to the ability of the plaintiff to function in certain defined circumstances. Hence his ability to function socially may be circumstantial evidence relevant to his ability to function in defined circumstances. (2) Since the defendant has produce evidence from the plaintiff’s Facebook profile showing his participation in social activities, the “court may also infer from the nature of the Facebook service, that other relevant documents are likely included in the Plaintiff’s profile.” [obiter dicta] (3) The plaintiff is to provide further and better Affidavit of Document to include relevant document from his Facebook accounts, and should preserve all relevant information from his Facebook accounts for the duration of the litigation.

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