SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-367917
MOTION HEARD: SEPTEMBER 5, 2013

RE: Christina Garacci by her Litigation Guardian Catherine Garacci, Catherine Garacci and Michele Garacci

v.

Kevin Ross

BEFORE: MASTER R.A. MUIR

COUNSEL:
M. Toca for defendant/moving party

L. Harrison-Wilson for the plaintiffs/responding parties

REASONS FOR DECISION

[1] The defendant brings this motion for an order that the plaintiff Christina Garacci (“Christina”) produce approximately 1100 photographs located on the private portion of her Facebook account and related profile pages. The defendant argues that the photographs are relevant to matters in issue in this action and ought to be produced. Christina opposes the relief requested by the defendant on the basis that the photographs are simply not relevant, that the defendant’s request amounts to an invasion of her privacy and on the basis that the photographs are being requested solely for the purpose of challenging Christina’s credibility.

[2] For the reasons that follow, it is my view that the photographs requested are not relevant to any matter in issue in this action and they need not be produced.

[3] This is a personal injury action. On January 29, 2008, Christina was walking on the side of a roadway in the Town of Courtice, Ontario when she was struck from behind by a vehicle operated by the defendant. Christina claims that as a result of this accident she sustained serious and permanent injuries. In particular, Christina alleges that she suffered injuries to her left leg and ankle including a fracture of her left ankle. The statement of claim makes a claim for significant damages including a claim arising from Christina’s alleged loss of enjoyment of life and amenities.

[4] During the course of her examination for discovery, Christina gave evidence that her loss of enjoyment of life included her inability to pursue activities she had previously enjoyed such as soccer, water skiing, competitive dancing and snowboarding. She gave extensive evidence about the impact of the accident on her social life and was very candid about what she can and cannot do. Christina does not claim that she is totally disabled or that the accident has completely prevented her from participating in certain athletic and social activities or that she is unable to travel. Christina freely admitted to swimming at the cottage, going to the gym, travelling to Mexico and attending concerts, among other things.

[5] The defendant takes the position that the requested photographs are relevant to the issue of Christina’s loss of enjoyment of life and to the quantum of her damages. The defendant points to approximately 12 photographs of Christina found on public areas of Facebook. The defendant’s supporting affidavit states that these photographs show Christina socializing with friends, having dinner and drinks, kneeling on the ground, climbing a tree and wrestling a friend to the ground. The defendant argues that if photographs of this nature are available on the public areas of Christina’s Facebook account, there must be other similar photographs depicting Christina engaged in similar activities among the 1100 private photographs.

[6] While that proposition may be true, the difficulty I have with the defendant’s position is that I do not view the public photographs obtained by the defendant as having any real relevance to the matters in issue in this action. Despite the description of Christina’s activities in the defendant’s supporting affidavit, it is my view that none of the public photographs actually show Christina engaged in any kind of significant physical activity. For the most part she appears to be socializing with friends and having a good time. In my view, the public photographs are completely consistent with her evidence at discovery.

[7] I do agree with the defendant that there may be some relevance to any of Christina’s private photographs that show her engaged in significant physical activity, especially of the nature she now says she is unable to enjoy. However, the evidence put forward by the plaintiffs on this motion indicates that all of the 1100 photographs have been reviewed by a law clerk and there simply are no photographs of that nature. There is one photograph of Christina on crutches in the hospital after the accident. That photograph has been produced. The rest of the private photographs are consistent with the public photographs obtained by the defendant.

[8] 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. Most of the photographs are taken from the waist up.

[9] On motions of this nature it must be emphasized that the “semblance of relevance” test no longer applies. It has been replaced with the stricter “relevance” test. Restraint must be exercised in the discovery process. See Stewart v. Kempster, 2012 ONSC 7236 (S.C.J.) at paragraph 11. Christina’s evidence is that Facebook is her photo album. It is where she keeps all of her personal pictures to view and to share with friends. In my view, the defendant’s request is tantamount to a request that Christina produce every photograph taken of her since the accident. This is an extremely broad request and in my view amounts to nothing more than a high tech fishing expedition. The defendant simply wishes to rummage through 1100 of Christina’s personal photographs in the hope that something useful or interesting might turn up. That is not an appropriate or proportional form of discovery.

[10] I have therefore concluded that the documents requested by the defendant are not relevant to the matters in issue in this action. They need not be produced.

[11] The parties agreed that the successful party on this motion should receive a costs award on a partial indemnity basis. The parties also agreed that $4,000.00 was fair and reasonable in the circumstances. Although I find that amount to be somewhat excessive for a simple production motion, it is consistent with the costs outlines prepared by both sides. I am therefore prepared to allow costs in that amount.

[12] I therefore order as follows:

(a) the defendant’s motion is dismissed; and,

(b) the defendant shall pay the plaintiffs’ costs of this motion on a partial indemnity basis fixed in the amount of $4,000.00, inclusive of HST and disbursements, payable within 30 days.

Master R.A. Muir

DATE: September 6, 2013