Stewart v. Kempster et al. [Indexed as: Stewart v. Kempster]
114 O.R. (3d) 151
2012 ONSC 7236
Ontario Superior Court of Justice,
Heeney R.S.J.
December 21, 2012
Civil procedure -- Discovery -- Production of documents -- Plaintiff in personal injury action claiming that she was unable to participate in recreational and social activities to extent that she had before accident -- Plaintiff testifying on examination for discovery about post-accident trips that she had taken -- Defendants moving for order compelling plaintiff to produce all post-accident vacation photographs taken of her and all content on private portion of her Facebook account -- Motion dismissed -- Photographs not showing plaintiff engaging in any athletic activity beyond sightseeing and not relevant to any issues in case -- Request for production of all content of private portion of Facebook account shockingly intrusive and based on nothing more than speculation.
The plaintiff sued for damages arising out of a motor vehicle accident. She alleged that she had sustained a permanent serious impairment of an important physical and psychological function as a result of her injuries, that she continued to experience loss of enjoyment of life, and that she was unable to participate in recreational and social activities to the extent that she did before the accident. On her examination for discovery, the plaintiff testified about various post-accident trips that she had taken. The defendants brought a motion pursuant [page152] to rule 30.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order compelling the plaintiff to produce all vacation photographs taken of her since the date of the accident, and all content on the private portion of her Facebook account.
Held, the motion should be dismissed.
Under rule 30.06, the defendants were required to satisfy the court, based on evidence, that a relevant document had been omitted from the plaintiff's affidavit of documents. A sealed envelope containing the plaintiff's vacation photographs was filed for the court's inspection. Those photographs did not show the plaintiff taking part in any athletic activity beyond sightseeing; she was depicted standing, sitting or leaning. The plaintiff freely admitted being able to engage in sightseeing. The photographs said nothing about the physical limitations that the plaintiff had testified she was suffering from, and did not have any real relevance to the issues in the case. Therefore, there was no reason to invade the plaintiff's privacy and order that her vacation photographs be disclosed. As for the content of the private portion of the plaintiff's Facebook account, the defendants' request to search that data was akin to a request that the plaintiff disclose copies of all personal letters written since the accident, or a request to search her filing cabinet in the hope that they might find something useful. It was based on nothing more than mere speculation.
MOTION by the defendants for an order for production of documents. [page153]
Cases referred to Murphy v. Perger, [2007] O.J. No. 5511, 67 C.P.C. (6th) 245 (S.C.J.), distd Leduc v. Roman, [2009] O.J. No. 681, 308 D.L.R. (4th) 353, 73 C.P.C. (6th) 323, 2009 CanLII 6838 (S.C.J.); M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, [1997] S.C.J. No. 13, 143 D.L.R. (4th) 1, 207 N.R. 81, [1997] 4 W.W.R. 1, J.E. 97-408, 85 B.C.A.C. 81, 29 B.C.L.R. (3d) 133, 34 C.C.L.T. (2d) 1, 8 C.P.C. (4th) 1, 4 C.R. (5th) 220, 42 C.R.R. (2d) 37, affg 1994 CanLII 6417 (BC CA), [1994] B.C.J. No. 2313, 119 D.L.R. (4th) 19, [1995] 1 W.W.R. 677, 51 B.C.A.C. 135, 98 B.C.L.R. (2d) 1, 32 C.P.C. (3d) 66, 50 A.C.W.S. (3d) 1046 (C.A.), consd Desgagne v. Yuen, [2006] B.C.J. No. 1418, 2006 BCSC 955, 56 B.C.L.R. (4th) 157, 33 C.P.C. (6th) 317, 150 A.C.W.S. (3d) 571, apld
Other cases referred to Noble v. York University Foundation, [2010] O.J. No. 794, 2010 ONSC 399 (S.C.J. -- Master); R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1
Statutes referred to Canadian Charter of Rights and Freedoms
Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.02, 30.03, 30.06, 31.06(1)
Authorities referred to Osborne, Coulter A., Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007)
K. McNair, for plaintiff. T. Fisher, for defendants.
[1] HEENEY R.S.J.: -- This motion is brought by the defendants seeking an order compelling the plaintiff to produce two things: all vacation photographs that the plaintiff has taken or that have been taken of her since the date of her motor vehicle accident; and all content on the private portion of her Facebook account.
[2] The action arises out of a motor vehicle accident which occurred on January 9, 2008. The plaintiff alleges that she has sustained a permanent serious impairment of an important physical and psychological function as a result of injuries to her neck, head, ear, jaw, low back, left leg, foot and left wrist. She alleges that the injuries are accompanied by anxiety, depression, emotional trauma, weakness and diminished energy. As a result of her injuries, she claims that she has and will continue to experience pain and suffering and loss of enjoyment of life and loss of amenities. She claims that she is unable to participate in recreational, social, household and employment activities to the extent that she did prior to the accident.
[3] The plaintiff was examined for discovery on August 25, 2011. She testified about various trips that she has taken since the accident, to British Columbia, Florida, Michigan and Mexico. She was examined extensively as to her activities during those vacations. She testified that she does not like her photograph to be taken while on vacation because of her leg. Vacation photographs consist primarily of images of the condominium where she stays and of the pool. She testified that her Facebook profile might contain "one or two" photographs from her vacation to Mexico in which she would be shown "sitting by the pool". Her account also contains profile pictures taken annually, which show her posing with her dogs.
[4] The affidavit of Lindsay Merrifield, student-at-law, was filed on behalf of the plaintiff. She attested that the plaintiff advised her that she stores photographs on Facebook rather than in a traditional photo album, so that they can be viewed by her daughter, who resides in Vancouver. Ms. Merrifield obtained the plaintiff's login information and examined the contents of the plaintiff's Facebook profile. The account includes photos which have been stored on her account by the plaintiff, as well as some which have been uploaded by others. They are not permitted to be viewed by anyone other than those to whom she specifically grants permission to do so. She [page154] has 139 "friends" who have access to the private portion of her Facebook account.
[5] The affidavit indicates that the photographs of the plaintiff include images captured during a 2008 trip to Vancouver to visit her daughter, a 2010 trip to Mexico and a Canada Day block party barbeque in 2011. She is seen posing in various locations in Vancouver. She does not appear in any of the images in which she is tagged on the vacation to Mexico.
[6] Paragraph 18 of the affidavit states the following: "There exist no photographs of the plaintiff taking part in any athletic activity beyond sight-seeing. She is variously depicted standing, sitting, or leaning." Paragraph 18 states: "There exist no photographs of the collision, the scene of the collision, or photographs relating to the impact of the injuries which the plaintiff sustained in the collision on her Facebook profile."
[7] A sealed envelope containing the photos in question was filed for the court's inspection. I have reviewed the contents and can confirm the description of the photographs in the affidavit filed to be accurate. An order will go that the envelope be resealed, not to be opened without a further court order.
[8] Aside from photographs, the "Timeline" section of the plaintiff's Facebook account contains a chronological list of her activities since she signed up for the service. It is publicly accessible, so the defendants already have access to this information. It contains two posts that are said to be relevant, as follows:
-- April 6, 2011 -- "Lucky me . . . through my neighbor Anne, I met Dr. Tony Schirru, the best chiropractor in town . . . after 3 years of back pain, I am feeling so much better . . . what took me so long to see a chiropractor? :) Thanks again Anne!!"
-- March 13, 2011 -- "HOLY GUACAMOLE!!!! I love Mexico! Sunshine, blue skies, margarita's and oh yes, can not forget the amazing Pina coladas our amigo made for us last night! Life is good!"
[9] There are no other postings in the plaintiff's Timeline that are alleged to have any relevance to these proceedings.
[10] This motion is brought pursuant to rule 30.06 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], which reads as follows:
30.06 Where the court is satisfied by any evidence that a relevant document in a party's possession, control or power may have been omitted from the party's affidavit of documents . . . the court may (a) order cross-examination on the affidavit of documents; [page155] (b) order service of a further and better affidavit of documents; (c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and (d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.
[11] The bar for "relevancy" was raised as of January 1, 2010. Rules 30.02 and 30.03 were amended to remove the "semblance of relevance" test, replacing the phrase "relating to any matter in issue" with the new test "relevant to any matter in issue". The same change was made to rule 31.06(1) dealing with oral discovery. These changes flowed from the Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007), authored by the Honourable Coulter Osborne, dated November 2007. At p. 58 of that report, which was cited in Noble v. York University Foundation, [2010] O.J. No. 794, 2010 ONSC 399 (S.C.J. -- Master), at para. 15, he stated the following:
The "semblance of relevance" test ought to be replaced with a stricter test of "relevance". This step is needed to provide a clear signal to the profession that restraint should be exercised in the discovery process and, as the Discovery Task Force put it, to "strengthen the objective that discovery be conducted with due regard to costs and efficiency."
[12] In order to succeed on this motion, the defendants must satisfy the court, based on "evidence", that a relevant document has been omitted from the plaintiff's affidavit of documents. The defendants submit that all vacation photographs are relevant because the plaintiff has put her enjoyment of life and participation in social and recreational activities in issue. She testified on her discovery that during some of these trips, she engaged in various activities, including swimming, walking and sightseeing.
[13] In practical terms, a claim that a plaintiff has suffered a loss of enjoyment of life as a result of injuries sustained in an accident means that the plaintiff is unable, or less able, because of those injuries, to participate in a range of enjoyable activities that life has to offer.
[14] The evidence before me on this motion, confirmed by my review of the photographs, indicates that the plaintiff is variously depicted standing, sitting or leaning. She is doing nothing more physically demanding than sightseeing, an activity which she freely admits being able to do.
[15] I am not persuaded that the photographs in question have any real relevance to the issues in this case. I quite agree that if there were photographs that showed the plaintiff [page156] water skiing or rock climbing, they would be relevant to demonstrate the extent of her physical limitations following the accident. The photographs in question, though, say nothing about the physical limitations that she has testified she is suffering from. An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.
[16] In Murphy v. Perger, [2007] O.J. No. 5511, 67 C.P.C. (6th) 245 (S.C.J.), Rady J. ordered production of photographs that were posted on the private portion of the plaintiff's Facebook account. However, that case is distinguishable for two reasons. First, there were photographs available on the publicly accessible portion of the Facebook account, which led to the inference that similar photographs were posted on the private portion of the account. Second, the plaintiff had served, and would be relying on, pre-accident photographs to assist in proving the impact of the accident on the plaintiff's lifestyle. The court reasoned that if the plaintiff felt that pre-accident photographs met the relevance test, post-accident photographs would be similarly relevant.
[17] In the case before me, there were no photographs accessible on the publicly accessible portion of the plaintiff's account. In addition, she will be relying on no pre-accident photographs as part of her case.
[18] Rady J. dealt with the issue of the privacy interests of the plaintiff in the photographs, and referred to the decision of the British Columbia Court of Appeal in M. (A.) v. Ryan, 1994 CanLII 6417 (BC CA), [1994] B.C.J. No. 2313, 98 B.C.L.R. (2d) 1 (C.A.), affd 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, [1997] S.C.J. No. 13. At para. 19, she said the following:
Turning to the privacy issue raised here, I was referred to British Columbia authority for the proposition that a court retains jurisdiction to refuse disclosure where the information is of minimal importance to the litigation but may constitute a serious invasion of privacy: United Services Funds v. Carter (1986), 1986 CanLII 946 (BC SC), 5 B.C.L.R. (2d) 222 (B.C.S.C.); leave to appeal dismissed (1996), 1986 CanLII 961 (BC CA), 5 B.C.L.R. (2d) 379 (B.C.C.A.) and M.(A.) v. Ryan (1994), 1994 CanLII 6417 (BC CA), 98 B.C.L.R. (2d) 1 B.C.C.A.; affd 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157. In the latter case, at the British Columbia Court of Appeal, Southin J.A. dealt with a psychiatrist's appeal of an order for production of her records of visits with the plaintiff, her patient. The court had this to say:
In considering whether to make an order compelling disclosure of private documents, whether in possession of a party or a non-party, the Court ought to ask itself whether the particular invasion of privacy is necessary to the proper administration of justice and, if so, whether some terms are appropriate to limit that invasion. There need not be a privilege against testimony in the classic sense for this to be a relevant question. By "private documents" I mean documents which are not [page157] public documents. I do not limit this question to what might be thought of as personally embarrassing documents.
On the one hand, a person who has been injured by the tort or breach of fiduciary duty of another ought not to be driven from the judgment seat by fear of unwarranted disclosure a sort of blackmail by legal process. If such a thing were to happen, the injured person would be twice a victim.
But, on the other hand, a defendant ought not to be deprived of an assessment of the loss he actually caused, founded on all relevant evidence. It would be as much a miscarriage of justice for him to be ordered to pay a million dollars when, if all the relevant evidence were before the court, the award would be for one-tenth that sum, as it would be for the injured person to feel compelled to retire from the field of battle because of a demand for documents containing intensely personal matters of little relevance.
[19] The B.C. Court of Appeal allowed the appeal and overruled the blanket disclosure order of patient/psychiatrist records that had been made in the courts below. Some records were ordered to be disclosed, but were subject to strict conditions.
[20] When M. (A.) reached the Supreme Court of Canada, the majority arrived at the same result as the B.C. Court of Appeal, but did so by applying the four-part Wigmore test with respect to privilege, as opposed to finding that the court had a residual discretion to refuse to order disclosure on the basis of privacy considerations. However, McLachlin J. (as she then was) recognized that the common law with respect to disclosure must reflect Canadian Charter of Rights and Freedoms values such as privacy. She said this, at para. 30:
As noted, the common law must develop in a way that reflects emerging Charter values. It follows that the factors balanced under the fourth part of the test for privilege should be updated to reflect relevant Charter values. One such value is the interest affirmed by s. 8 of the Charter of each person in privacy.
[21] Justice McLachlin drew a parallel with the disclosure rules that had been developed in the criminal law in R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98. She said the following, at para. 36:
Just as justice requires that the accused in a criminal case be permitted to answer the Crown's case, so justice requires that a defendant in a civil suit be permitted to answer the plaintiff's case. In deciding whether he or she is entitled to production of confidential documents, this requirement must be balanced against the privacy interest of the complainant. This said, the interest in disclosure of a defendant in a civil suit may be less compelling than the parallel interest of an accused charged with a crime. The defendant in a civil suit stands to lose money and repute; the accused in a criminal proceeding stands to lose his or her very liberty. As a consequence, the balance between the interest in disclosure and the complainant's interest in [page158] privacy may be struck at a different level in the civil and criminal case; documents produced in a criminal case may not always be producible in a civil case, where the privacy interest of the complainant may more easily outweigh the defendant's interest in production.
[22] At para. 38, McLachlin J. firmly rejected the suggestion that just by coming to court and suing for damages, a litigant thereby gives up her right to privacy:
I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.
[23] To return to Murphy, Rady J. noted that the plaintiff in her case had 366 "friends" who were able to view the posted pictures, and concluded that the plaintiff did not have a serious expectation of privacy in those photographs, and ordered production.
[24] The matter can, however, be viewed from the opposite direction. At present, Facebook has about one billion users. Out of those, the plaintiff in the present case has permitted only 139 people to view her private content. That means that she has excluded roughly one billion people from doing so, including the defendants. That supports, in my view, the conclusion that she has a real privacy interest in the content of her Facebook account.
[25] It is not, however, necessary for me to consider the privacy issue in the context of an analysis of the Wigmore test with respect to these photographs, because the issue can be dealt with based on the threshold issue of relevance. The photographs in question may have met the "semblance of relevance" test that was in effect when Murphy was decided but, as I have already concluded, they do not have any real relevance to the issues in this case. There is, therefore, no reason to invade the plaintiff's privacy and order that her vacation photographs be disclosed.
[26] I recognize that Brown J. in Leduc v. Roman, [2009] O.J. No. 681, 2009 CanLII 6838 (S.C.J.) took a somewhat broader view than I as to the likely relevance of material posted on the private portion of a plaintiff's Facebook account, and a somewhat narrower view of the need to protect the plaintiff's privacy interests in that content. In the end, though, Brown J. did not order production of any documents on the plaintiff's Facebook account, but merely granted leave to the defendant to cross-examine the plaintiff on his supplementary affidavit of [page159] documents about the nature of the content posted on his Facebook profile, so that he could learn whether it contained any relevant content.
[27] This emphasizes the fact that the motion before the court is evidence-driven. We have here the benefit of evidence as to what the photographs depict. On the evidence before me, I am not persuaded that any relevant photographs have been omitted from the plaintiff's affidavit of documents.
[28] The defendants also seek production of everything else (aside from photographs) that is contained in the plaintiff's Facebook account, including messages or other media. The evidentiary basis for this is found in paras. 22 to 26 of the affidavit of Stephen Shenke sworn August 3, 2012. The affidavit says very little other than to point out that Facebook "is a social utility network that helps people to stay connected with friends and family, discover what is going on in the world, and to share and express what matters to them". It then makes the broad statement that the affiant verily believes "that the Plaintiff's Facebook account may contain content, including photographs, messages or other media, that are directly relevant to the Plaintiff's claim for non-pecuniary general damages, including by [sic] not limited to, damages claimed for loss of enjoyment of life".
[29] Before the dawn of the Internet age, people often communicated by writing personal letters to each other. It could be said that such letters served to keep friends and family connected, and provided a medium in which people would share information with each other about what matters to them. They might even discuss the state of their health, if they happened to have suffered a traumatic event such as a motor vehicle accident in the recent past. However, it is unimaginable that a defendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some information contained therein relevant to the plaintiff's claim for non- pecuniary damages. The shocking intrusiveness of such a request is obvious. The defendants' demand for disclosure of the entire contents of the plaintiff's Facebook account is the digital equivalent of doing so.
[30] I adopt the views of Myers J. in Desgagne v. Yuen, [2006] B.C.J. No. 1418, 2006 BCSC 955, where he said the following, at para. 20:
It is true that documents contained in electronic form present new challenges. That does not mean, however, that the Court should lose sight of the underlying principles regarding document production. For the purposes of this part of the motion (as opposed to the request for the metadata, which I discuss below) the documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or [page160] document repository. A request to be able to search a party's filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed.
[31] The defendants' request to search the plaintiff's private correspondence and other data in her Facebook account in the hope that they might find something useful is akin to searching the plaintiff's filing cabinet. It is a fishing expedition and nothing more.
[32] One cannot argue that because the Timeline disclosed two comments that are arguably relevant, the defendants should, therefore, have access to everything else in the plaintiff's Facebook account. The entire Timeline is publicly accessible, so the defendants have seen all that there is to see under that category. It is not as if part of the Timeline is public and part is private, as was the case with the photographs in Murphy. The contents of the Timeline do not support any inference as to the contents of correspondence and other media contained in the private portion of the plaintiff's Facebook account. The defendants' request is based upon nothing more than speculation.
[33] The defendants have not persuaded me, on evidence, that any relevant documents exist on the plaintiff's Facebook account which were not disclosed in her affidavit of documents. The motion is, therefore, dismissed.
[34] A number of other authorities were referred to by both counsel during the course of argument that dealt with similar issues, and I have considered them. However, since I see this motion as being driven by the evidence, and the inferences to be drawn, or not, from the evidence, it is not necessary to refer to them.
[35] If the parties cannot agree on costs, I will accept written submissions from counsel within 30 days.
Motion dismissed.