Court File and Parties

Court File No.: 640/10
Date: 2013/12/18
SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Amanda Knox (Plaintiff)

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Nathan Applebaum Holdings Limited, Sidney Applebaum Holdings Limited, F.V.D. Holdings Limited, 20 VIC Management Inc./Societe de Gestion 20 VIC Inc. and Angela Knox (Defendants)

BEFORE: Justice L. C. Leitch

COUNSEL:
Gordon Good, for the plaintiffs
Tara Pollitt, for the defendants

HEARD: December 3, 2013

ENDORSEMENT

[1] The defendants Applebaum Holdings Ltd. and 20 VIC Management Inc. seek an order that the plaintiff comply with undertakings and refusals given on her examination for discovery within 30 days and that she re-attend on her examination for discovery at her own expense to answer questions that have been refused.

[2] The action relates to a motor vehicle accident which occurred April 3, 2008. The plaintiff was examined for discovery on May 4, 2011.

[3] At the time this motion was heard, there were five issues remaining as follows:

1. The undertaking to produce the clinical notes and records of Body Mechanics.

[4] The plaintiff, in response to her undertaking to produce these records, has requested her clinical notes and records from Body Mechanics. However, her request has been refused until their account for treatment is paid. Mr. Good, plaintiff’s counsel, advised the moving party of the position taken by Body Mechanics by letters dated September 18, 2012 and November 27, 2013.

[5] I am not inclined to order that the plaintiff comply further with this undertaking because for all practical purposes this would amount to an order that she pay this outstanding account. As a result, if it would be unfair for the moving party to proceed to trial without discovery of these records, then they will have to resort to a motion pursuant to rule 30.10.

2. The plaintiff’s refusal to produce her Ontario Works file and the New Brunswick social benefits file.

[6] The plaintiff has refused production of these files on the basis that they are irrelevant. The plaintiff has confirmed that these files do not contain any medical information.

[7] The moving party asserts that these files are relevant because the plaintiff is advancing a claim for income loss and she has indicated that her primary source of income since 2002 has been social assistance. The moving party further asserts that this information is relevant to determining whether the plaintiff is ready, willing and able to return to work; whether she has attempted to obtain employment; and the extent of her commitment to attending Medix School.

[8] The moving party’s position that they anticipate that the file may contain notes about the plaintiff’s readiness, ability and willingness to work is not enough to conclude that these records are relevant. The plaintiff has disclosed that social assistance has been her primary source of income. She has also produced her tax returns, her school records, the Medix file, and her employment file for the relevant period. Her application for Ontario Works and social assistance in New Brunswick and the files maintained by those government departments, in my view, are not relevant.

3. The plaintiff’s refusal to provide particulars of her pain diary.

[9] The moving party asserts that because the plaintiff has recorded the severity and frequency of her pain in a pain diary, that diary is relevant to the assessment of damages and ought to be produced.

[10] This production was refused on the basis that this record was maintained at the request of plaintiff’s counsel and is thus privileged. In particular, Mr. Good asserted at the hearing of this motion that this document is subject to litigation privilege. In my view, this document prepared by the plaintiff at her lawyer’s request as part of their preparation for litigation attracts the zone of privacy which litigation privilege protects. Accordingly, I am satisfied that this requested production was properly refused.

[11] However, I note that this privileged document cannot be used at trial without leave pursuant to rule 30.09 unless the document is produced for inspection at least 90 days before the commencement of trial.

4. The moving party’s request that the plaintiff provide an updated affidavit of documents.

[12] The plaintiff produced an affidavit of documents sworn July 23, 2010. On her discovery, the plaintiff was asked about prescription medication that she had obtained over the last two years. Mr. Good confirmed that he had provided a prescription summary from September 2007 up until November 2008. He undertook to request an updated prescription summary but resisted the request to produce an updated affidavit of documents.

[13] The moving party seeks an updates affidavit of documents on this motion.

[14] Rule 30.07 requires a supplementary affidavit to be filed where additional documents relevant to a matter in issue must be disclosed and produced. Mr. Good recognizes the obligation to make continuing discovery of documents and he indicated that he would serve the documentation but resisted the request that he produce the supplementary affidavit. However, the moving party is entitled to require compliance with rule 30.07 and there is no basis for the court to relieve Mr. Good of that responsibility.

5. The plaintiff’s refusal to produce a print-out of her Facebook profile.

[15] On her examination for discovery, the plaintiff testified that she maintains a Facebook account and posts status updates as to how she is feeling and comments on her pain in her postings. She also indicated on her examination for discovery that she posts a lot of photographs of herself on Facebook. As a result, the moving party requested that the plaintiff produce the posted photographs and a print out of her Facebook profile.

[16] In response, the plaintiff’s material filed on this motion includes a chart listing by date the plaintiff’s verbatim comments regarding her pain and her health with a cross reference to a corresponding medical record. There are 24 postings between May 21, 2008 and November 13, 2013. The plaintiff resists any further disclosure asserting that there is no relevance to any further information from her Facebook account.

[17] I agree that a there may be relevant documents posted on someone’s Facebook account. However, in this case, I am not inclined to order the production sought by the moving party. While photographs were ordered by Rady J. in Murphy v. Perger, [2007] O.J. No. 5511, I note in that case the plaintiff had produced photographs of herself prior to the accident as part of her case and in relation to the privacy issue, there was evidence that 366 people had been granted access to her Facebook site.

[18] Here there is no relevant information in the plaintiff’s public profile, a point which was emphasized by Price J. in Schuster v. Royal and Sun Alliance co. of Canada, [2009] 78 C.C.L. (4th) 216 (S.C.J.). Here, the moving party’s demand for production rests on a belief that the contents of the plaintiff’s Facebook account are relevant in terms of assessing her pre and post accident activities. As Heeney R.S.J. noted in Stewart v. Kempster, 2012 ONSC 7236, 114 O.R. (3d) 151 (S.C.J.), there must be evidence that posted photographs are relevant in order to justify an order for production. Similarly, I come to the same conclusion with respect to the requested production of the plaintiff’s postings to those persons who have access to her account. There is no evidentiary basis to satisfy the test of relevance to justify an order for production. In my view, this request was properly refused by the plaintiff.

Conclusion

[19] The motion is dismissed.

[20] I trust that counsel can resolve the issue of costs. My preliminary view, subject to reconsideration after submissions on costs, is that the plaintiff was successful on the motion and ought to receive an award of costs.

[21] If necessary, counsel may make brief written submissions on costs within the next 30 days.

” Justice L. C. Leitch”

Justice L. C. Leitch

Date: December 18, 2013