Court File and Parties

COURT FILE NO.: 12-56112 DATE: 2017/03/08 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

TATIANA NEMCHIN Plaintiff – and – YVONNE GREEN Defendant

Counsel: Joseph Obagi and Adam Aldersley, for the Plaintiff Thomas Ozere and Kim Dullet, counsel for the Defendant

HEARD: February 27, 2017

Ruling

Motion No. 4

Facebook Pages

CORTHORN J.

Introduction

[1] In cross-examination of the plaintiff, the defendant in this personal injury action sought to rely on approximately 20 posts from the plaintiff’s Facebook page (the “Posts”) and, ultimately, to have the Posts entered as substantive evidence. The plaintiff objected to cross-examination based on the Posts.

[2] In September 2015, the plaintiff’s Facebook page was the subject of communication between counsel for the parties. The communication was initiated by counsel for the defendant. In a letter sent to counsel for the plaintiff, counsel for the defendant made the following request, “Your client has taken down her Facebook page. She has also deleted relevant content from her various social media accounts. Please ensure that Ms. Nemchin’s social media accounts and all content are reinstated and preserved immediately.”

[3] In response, counsel for the plaintiff advised as follows on September 25:

Further to our letter dated September 21, 2015 and the letter of Ms. Dullet dated September 18, 2015, our client’s Facebook account was deactivated on June 1, 2015. In order to resolve this issue, we are prepared to reactivate our client’s Facebook account for a period of 8 hours, which will allow you to access her posts, pages, events and photographs, and save any material you find relevant. At the end of the 8 hour period, we will again deactivate the account on behalf of our client.

We will, of course, request that you provide us with a copy of any material you retrieve from our client’s Facebook posthaste, and will request that you add same to your Affidavit of Documents.

Please contact our office to arrange a mutually agreeable day for the reactivation of the aforementioned Facebook account.

[4] An agreement was reached to proceed as proposed in the letter quoted immediately above (the “Agreement”). The plaintiff’s Facebook page was re-activated for a period of 8 hours. Counsel for the defendant retrieved a significant volume of materials from the Facebook page. The materials retrieved were placed on a disc. In hard copy form the materials retrieved comprise six cerlox bound volumes of documents and number in the hundreds of, if not more than one thousand, pages.

[5] Through inadvertence (a) a copy of the disc was not provided to counsel for the plaintiff and (b) the materials retrieved were not made the subject of a supplementary affidavit of documents in the name of the defendant. It was not until after cross-examination of the plaintiff began that counsel for the plaintiff was made aware that materials from the plaintiff’s Facebook page had been retrieved in accordance with the Agreement. Similarly, counsel for the defendant was not previously aware that postings retrieved had not been provided in accordance with the Agreement.

[6] The materials retrieved and stored from the reactivated Facebook account are distinct from other Facebook materials that were the subject of documentary disclosure in the ordinary course of the litigation.

The Issue

[7] Is the defendant, in cross-examination of the plaintiff, entitled to rely on the Posts?

The Positions of the Parties

a) The Defendant

[8] It is acknowledged on behalf of the defendant that copies of the posts and a supplementary affidavit of documents with respect to same were not produced and served, respectively, as had been agreed upon in September 2015.

[9] The defendant’s position is that the contents of the plaintiff’s Facebook page (including the Posts) have at all times been within the possession, power, or control of the plaintiff. As such, the plaintiff had an obligation to produce those portions of her Facebook account that are relevant to the issues in the action.

[10] The defendant characterizes the lack of production of the Posts at an earlier stage in the action as a failure on the part of the plaintiff to fulfill her disclosure obligations pursuant to the Rules of Civil Procedure.

[11] At trial, the defendant was prepared to proceed as follows so as to address any prejudice to the plaintiff by reason of the failure to produce the disc (or six volumes of hard copies) of the materials retrieved:

a) Take a break in the cross-examination of the plaintiff to permit her to meet with her counsel to review the Posts; and b) Permit counsel for the plaintiff to refer in re-examination to any of the materials retrieved when the Facebook account was reactivated (i.e. any of the posts in the six volumes of materials).

b) The Plaintiff

[12] The plaintiff’s position is that at no time did she consider the Posts to be relevant to the litigation. As a result, she did not include them as Schedule “A” documents when fulfilling her documentary disclosure obligations.

[13] Preparation of the plaintiff’s case for trial was carried out based on an understanding of the case the plaintiff had to meet given the disclosure of documents prior to the commencement of trial. Specifically because the Posts were not produced prior to trial, the plaintiff did not have an opportunity to:

a) Provide copies of the Posts to the expert witnesses and/or health practitioners who would be called to testify on her behalf; and b) Review the Posts herself prior to testifying.

[14] When the issue of the Facebook posts arose (a) one of the plaintiff’s expert witnesses had already testified and (b) the plaintiff had been in the witness box for in excess of three days. The plaintiff submits that it would be unfair to interrupt the plaintiff’s testimony for her to continue ‘preparation’ – in particular when that preparation would require a review of hundreds or more pages of Facebook materials.

[15] The final point made on behalf of the plaintiff is that the lack of production of the Facebook account materials meant that she was precluded from considering them in the context of settlement negotiations prior to trial.

Disposition

[16] Given the defendant’s failure to satisfy her disclosure obligations – both pursuant to the Agreement and in accordance with the Rules of Civil Procedure – with respect to the Facebook materials retrieved in or after September 2015, the defendant is not entitled to leave to rely, for the purpose of cross-examination, on 20 of the posts retrieved at that time.

Analysis

[17] In the recent decision of the Ontario Court of Appeal in Iannarella v. Corbett, Lauwers J. said, “Given the interests of fairness and the objectives of efficiency and settlement, the court expects the parties to comply fully and rigorously with the disclosure and production obligations under the Rules”.

[18] The production issue in this case arises from the different views that the parties have as to the relevance of the Facebook materials. The plaintiff’s theory of the case is that as a result of the subject motor vehicle accident, she suffers from post-traumatic stress disorder (“PTSD”). As an ‘injury’ PTSD is invisible; evidence of the plaintiff’s activities at any particular time is not indicative of the existence or severity of the PTSD from which the plaintiff alleges she suffers. For that reason, the plaintiff’s position was and remains that the materials from her Facebook account are not relevant to the issues in the action.

[19] The defendant, on the other hand, takes the position that the nature and extent of the plaintiff’s activities from time-to-time are relevant to the existence and severity (or lack thereof) of the plaintiff’s injuries and the alleged impact of her injuries on her level of function.

[20] Although the plaintiff’s position was and remains that the materials on her Facebook account are not relevant to the issues in the litigation, she did not deny the defendant access to the account. Had the plaintiff not agreed to re-activate her Facebook account in September 2015, the defendant would have been required to bring a motion for an order to gain access to the account. Relief, if granted, would likely have included an order requiring that the defendant produce copies of materials retrieved and deliver a supplementary affidavit of documents.

[21] I find that the defendant’s inadvertence with respect to the failure to disclose the Facebook materials retrieved constitutes less than ‘full and rigorous compliance’ with the disclosure and production obligations pursuant to both the Rules of Civil Procedure and the Agreement.

[22] I agree with the plaintiff that to proceed in the manner proposed by the defendant would result in prejudice to the plaintiff:

• It would not be sufficient to allow the plaintiff time to review only the Posts prior to resuming her cross-examination. Fairness would require that she be given an opportunity, prior to continuing the cross-examination, to review all of the materials retrieved (hundreds if not more than a thousand pages of documents).
• The interruption required to facilitate that review would be inefficient, disruptive, and have an impact on trial fairness.
• The plaintiff’s expert who has already testified would not have an opportunity to review and/or comment, as may be required, upon the contents of the Posts.
• The plaintiff’s other experts, including participant experts, would not have a reasonable opportunity for review and comment, the latter if necessary, upon the contents of the Posts.

[23] It is simply too late in the litigation process for the defendant to be entitled to rely on the Posts as Schedule “A” documents. Disclosure and production of the documents was required at an earlier stage in the litigation.

Summary

[24] At paragraph 55 of his decision in Iannarella, Lauwers J. concluded that “[t]he court should not reward non-compliance” with the disclosure obligations under the Rules of Civil Procedure. In summary, in the circumstances of this case, the defendant is not to be ‘rewarded’ with leave to rely on the Posts for the purpose of cross-examination.

Madam Justice Sylvia Corthorn Released: March 8, 2017