CITATION: Merpaw v. Hyde, 2015 ONSC 1053

COURT FILE NO.: CV-08-1473

DATE: 2015/02/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tammy Lynn Merpaw, Plaintiff

AND:

Scott Carson Hyde c.o.b as City Limits Convenience and MacEwen Petroleum Inc., Defendants

BEFORE: Justice Rick Leroy

COUNSEL: Cale Harrison for Susan Mitchell, Counsel for the Plaintiff

John Lundrigan, Counsel for the Defendant McEwen Petroleum

HEARD: January 16, 2015

ENDORSEMENT on motion

[1] The Plaintiff’s claim is for damages from a trip and fall on April 16, 2003.

[2] The Orders Sought by the defence on this discovery motion are:

(a) An Order requiring the Plaintiff to permit the moving party access to the hard drive(s) and to the data of her home computer, IPad, IPhone, and social media accounts by its forensic expert to determine the Plaintiff’s daily level of activity on those devices;

(b) An Order requiring the Plaintiff to permit the Defendant to obtain all data relating to her Internet usage, including but not limited to all social media data from Facebook, My Life, and other social media accounts not yet identified, including access to all on-line gambling data between the years of 2006 to the current date;

(c) An Order requiring the Plaintiff to preserve and produce all information on her electronic devices, from her social media and other on-line accounts, etc. from 2006 up to the trial of the action;

(d) An Order requiring the Plaintiff to execute a consent permitting this Defendant to obtain all data and information from on-line gambling accounts/providers as well as all information from the US Customs and Border Protection Services relating to her entry into the USA between 2006 and the current date;

(e) An Order requiring the Plaintiff to request consent from her husband Kevin Merpaw to produce all records of entries by him, or any vehicle he owns, into the USA between 2004 and 2014 and re-entry into Canada;

(f) An Order requiring the Plaintiff to produce her banking and credit card records held in her name or held jointly with others from 2008 to current date;

(g) An Order requiring the Plaintiff to identify all gambling establishments visited between 2004 and 2014 and to execute a consent permitting those establishments to disclose any and all records of the Plaintiff’s visits to those locations and all records with respect to monies spent and won by the Plaintiff in those years at those establishments;

(h) An Order requiring the Plaintiff to produce the records from Notman Chrysler, Cornwall, ON;

(i) An Order requiring the Plaintiff to attend at an examination for discovery to answer questions relating to the production of the above information.

(j) The costs of the motion on a solicitor and client basis.

[3] The analysis involves the synergies of relevance – Rule 30, proportionality – Rule 29.2 and privacy interests.

[4] There are specific claims that can be eliminated summarily. The Plaintiff has not had a home computer since 2012 and it was disposed of at the time. The Plaintiff confirms Facebook as the only social media provider she uses. She denies online gambling or gambling anywhere but the Akwesasne Casino. There is no evidence to the contrary.

[5] The amount claimed for general and special damages is substantial. The Plaintiff’s claim is that her injuries reduced her enjoyment of life, incapacitated her from sedentary or any employment and she will require third party services to maintain her home and modest lifestyle. Save for a short attempt at sedentary call centre employment in 2005, the Plaintiff has not worked gainfully since falling. The Plaintiff qualified for Canada Pension Disability after 2005 and reports that the $700 per month benefit is her only independent income source.

[6] The Defendant raises issues about the extent of the Plaintiff’s incapacity and causation. The onset of back pain and the psychological disorder relapse followed the fall by more than two years.

[7] The defence independent medical reports raise issues about the Plaintiff’s actual medical condition as well as the causal connection of her condition, such as it is, to consequence from the fall. The defence requests this relief hoping that the information marshalled in this process resolves the enigmas it perceives in the Plaintiff’s circumstances.

[8] The Plaintiff and defence orthopaedic opinions as to her physiologic condition are diametric. To the extent the defence orthopaedic doctor observed clinical symptoms on examination, he refutes causal connection to injury from the fall. The Paitch orthopaedic medical report suggests that the clinical examination results are not consistent with the Plaintiff’s reporting and to the extent the two are compatible, raises issues of aetiology. The Plaintiff was diagnosed with fibromyalgia in 2002. Dr. Paitch concludes that the Plaintiff’s current symptoms are overstated and unrelated to the fall. He concluded that Ms. Merpaw’s lower back pain is not causally related to pathology arising from the trip and fall incident and he did not have an orthopaedic anatomic or physiologic explanation for her ongoing stated symptomatology involving her right ankle. He said her self-report of impairment is considerably beyond what is expected based on the injuries.

[9] The defence psychiatric medical report concludes that the aetiology of the Plaintiff’s DSM diagnosis is unrelated to the fall.

[10] The defence position is they cannot confidently assess the value of the Plaintiff’s claim, having regard to incongruity between self-report on her side and clinical conclusion and the empirical on the other. The Plaintiff asserts short-term memory deficit, an inability to perform basic housework, engage in pre-injury lifestyle, or work at a desk job when she can drive to the casino and back, has the capacity to engage in casino ambience over three hours, play eighteen bingo cards simultaneously and interact through and on social media on electronic devices through the day every day. She says that her only income source derives from CPP disability, yet she was able to acquire a Challenger, enjoy annual winter vacations south and pay bills.

[11] The Plaintiff’s narrative is as follows:

• She experiences constant fatigue daily with low energy and motivation. She is depressed constantly and has frequent thoughts of suicide. She is unable to shop due to limited walking tolerance. Housework is problematic. She reports few hedonic experiences save bingo. Her activity levels are constrained. Pain escalates from any fixed body position. She reports limits to standing at 20 minutes and to sitting at 90 minutes. She reports poor concentration and focus and short-term memory deficits. She takes Wellbutrin and Trazedone for depression and up to 10 Oxycodone per day for pain;

• The Plaintiff resides with her husband within five kilometers of the Canada/U.S border, ten kilometers of the Akwesasne Mohawk Reserve - Casino and fifteen kilometers from Massena, New York – the campground;

• The Plaintiff frequents the casino to play bingo and the slots either with her spouse or friends. The Plaintiff acknowledges having won two slot pots in 2013 in the amounts of $15,000 and $29,000 gross. The house retains one-third of the gross. She has a casino club card. The Plaintiff reports she can sit to play bingo or slots for about one hour before she requires a break. Bingo, slots and likely some computer applications serve to distract her from pain, alleviate stress and pass time;

• The Plaintiff advises she is exclusive to this casino;

• The Plaintiff and her spouse have a seasonal site and camper trailer at a Massena campground they visit weekends between May and September;

• The Plaintiff has used electronic devices since 2006. She has not had a computer since 2012. It stopped working and she discarded it. Her computer devices involve linked IPad and IPhone;

• The Plaintiff opened a Facebook account in 2007. She confirms she is Facebook exclusive and it is her only social media service. There are ten photographs on her public page. She is in six of the ten and in each she is standing with her cane or sitting. She does not explain the fruit pop frame other than to say she did not put it there. She confirms that the communications showing the stacks of money derived from some other source chained into her account. She did not take the picture of the stacks of money and did not own it;

• The Plaintiff plays computer games on her devices through the day. They are portable and she can use them when she is lying down or sitting in her recliner. She denies ever sitting in a chair at a desk while engaged with one or the other;

• Save for a brief period when her son’s girlfriend used the IPad to search for apartments and employment in 2011, she is the only IPad and IPhone user;

• She accesses email with her devices. She communicates with her legal and medical advisors by email;

• The Plaintiff denies on-line gambling;

• Her spouse’s business failed and assigned in bankruptcy in 2005. At discovery in 2011, her spouse was off work and in receipt of WSIB. He returned to work. It is unclear whether the spouses assigned personally. Given that their home is encumbrance free and they remain the owners, personal bankruptcy is unlikely;

• The Plaintiff acquired a 2011 Dodge Challenger in summer 2013. The car is featured in four of ten posted photographs in her public photo album. There is a coincident communication with a friend on Facebook where she confirms using the casino winnings to pay for the car. She advised that to be an expedient white lie to avoid disclosure of their private financial affairs in the public forum that is the public Facebook wall. On discovery, the Plaintiff said she and her spouse traded a 2006 Dakota for the down payment and financed the rest. Her spouse pays the 60 monthly instalments of $560 from one of their joint accounts;

• The Plaintiff states that all of her bank and loan accounts are jointly owned with her spouse. She denies the existence of any accounts in her name alone.

[12] Surveillance in February and August 2012 depict excursions to the casino consuming over seven and six hours respectively. In February, she was observed playing slots for three hours.

[13] The Plaintiff refused to allow access to the Plaintiff’s Telus records, her Facebook private account, the Challenger loan application and purchase agreement, her club card or casino records, US border return records, the hard drives to her IPhone and IPad, her banking and credit card records.

Relevance; Proportionality; Privacy Interests

[14] A party must produce every document that is relevant to the issues pleaded in the proceeding. Relevance in discovery is broader than at trial. A consideration of relevance begins with the pleadings.

[15] A litigant has the initial obligation of disclosing relevant documents in the first instance. There must be some evidence of non-disclosure or of omission from the production and disclosure obligations of the litigant before production will be ordered. The court is required to consider proportionality – Rule 29.2.03, and the evidence must suggest that the benefits of the investigation warrant the costs.

[16] The value of disclosure may be overborne by other values including privacy, access to justice and the fair and efficient use of scarce resources in the administration of justice. The court retains discretion and may refuse disclosure where information is of minimal importance but the search for it might compromise other important interests.

[17] A motion under Rule 30.06 requires evidence of omission, as opposed to speculation that potentially relevant undisclosed documents exist. The standard of proof is not high to account for the fact that one party has access to the documents and the other does not.

Relevance

[18] Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Relevance involves two questions. What is the proposition to which the evidence is supposed to be relevant? What is the probative value?

[19] The change in the rules narrowed the availability of document production from the semblance of relevance standard requiring production of any document relating to any matter in issue in the action to any document relevant to any matter in issue in the action. Our broad and liberal approach to disclosure and discovery of relevant information sustains.

Privacy Balance

[20] The Court can refuse disclosure when the information is of little importance to the litigation and disclosure may constitute a serious invasion of privacy. The balancing considerations were effectively articulated by Southin J.A. in M.(A.) v. Ryan, 1994 CanLII 6417; aff’d, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 when he wrote:

“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 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.”

Private Facebook Account

[21] The Plaintiff is not required to produce the content of the private section of her Facebook account.

[22] The burden rests with the Defendant to establish evidence of omission of relevant documents rather than mere speculation. As noted earlier, the Defendant does not have access to this information and is at a disadvantage. The fact of a Facebook account with public and private walls does not entitle a party to gain access to all material placed on the site.

[23] If there are pictures or communications in the Plaintiff’s public forum relevant to the action it is reasonable to infer there is relevant information contained in the private forum – Leduc v. Roman, 2009 CanLII 6838 (ON SC), [2009] O.J. No. 681; Shuster v. Royal and Sun Alliance Co. [2009] O.J. No. 4518. That raises the enquiry to more than mere fishing. If relevance is established, the process shifts to proportionality and privacy factors.

[24] In the case at Bar, the public page information is consistent with her testimony and representation to the examining doctors. There is no reason to expect the private page to contain documents that would tend to give more than the content of the public page to enable the Defendant to procure admissions to dispense with formal proof or destroy the Plaintiff’s case, know the case it is to meet, eliminate or narrow issues or avoid surprise at trial.

IPad and IPhone Hard Drives

[25] The Defendant is not entitled to the Plaintiff’s electronic documents stored on her IPhone(s) and IPad.

[26] A computer hard drive contains stored data that is neither relevant nor material to a lawsuit and which contains information that is private and confidential and ought not to be produced. Relevant and material information stored on a computer hard drive is subject to production. Only in exceptional circumstances such as when there is convincing evidence that a party is intentionally deleting relevant and material information will the Court order production of the hard drive for examination.

[27] The Plaintiff claims disabling chronic pain and depression. She consumes up to ten Oxycodone per day in addition to anti-depressant medications. She uses the IPad and IPhone to access Facebook, Internet and email and generally to communicate with lawyers, family and friends. She says they are always powered on and signed in. She accesses their features while she is recumbent in a reclining chair or prone on the couch or bed.

[28] Having regard to what the Plaintiff reports about her limitations, the Defendant perceives anomalies that include her capacity to drive to and from the casino, the campground, her capacity to play bingo with up to 18 cards per game, utilize her IPad and IPhone features and work a slot machine. There is the picture of the 88,000 point Fruit Pop game. The Plaintiff denies having ever played that game.

[29] The Defendant articulates the relevance of device hard drives as “Her activity level in terms of her daily usage of her computer, her ability to interact through and on social media, her ability to participate in gambling activity etc. are relevant to the Plaintiff’s ability to be gainfully employed in a sedentary job and to her overall credibility.” Robert Fortin, a person with no computer forensic expertise, in paragraph 22 of his affidavit deposed May 29, 2014 at tab 2 of the Applicant record states “Production of the Plaintiff’s Internet data, as well as all of the information from her Facebook account and other social media which she has participated in through her own personal computer is relevant to determine the Plaintiff’s activity usage of her computer and to assess her overall employability.”

[30] The Defendant’s position, stated by Robert Fortin, is that their forensic analyst requires the device CPUs before they can establish actual activity per day or the Plaintiff’s actual time spent on various websites on each particular day. The defence wants to know how much time was involved in achieving the score of 88,000 on the Fruit Pops game. The Defendant submits that they will be able to establish the length of time the Plaintiff dedicates on a daily basis to operating her IPad and Phone. This information is sought to inform an analysis of how much time the Plaintiff can work on a computer at a desk, her capacity to focus, concentrate, reason and stay on task.

[31] The Plaintiff countered with the affidavit of Steven Rogers, a computer forensics analyst. He discounts the efficacy of such an analysis vis-à-vis the Plaintiff’s work capacity. The scope of his retainer was to identify the kind of information and/or data that can be retrieved from an IPhone or IPad, where the analysis of that data might lead and what types of communications could be retrieved.

[32] He advises that the IPhone and IPad work with the same operating system, performing the same functions and running the same applications. Both come with manufacturer-supplied applications and the ability to download and install third-party applications. Both can take and store pictures, access email, browse the Internet, review documents and take notes. The IPhone can receive text messages, make and receive telephone calls. Text messages recovered from an IPhone will include the date, time, sender, receiver and body of the message while browsing history on both devices is simply a list of the sites visited.

[33] His advice is that the analytical conclusions sought by the Defendant are more elusive than portrayed by Robert Fortin. He confirms that the information stored on an IPad or IPhone may reveal a person’s level of activity on the devices and depending on the type of activity, possibly the length of time of the activity. He states that device applications run until the user specifically terminates the application. Although both devices record browsing history, there will be no definitive time quantification. How long a person visits a website is challenging and not very precise. There are a number of factors that impact on the availability of data such as deletion activity, application settings, removal and re-installation of an application, storage capacity and actual use of the applications.

[34] This is not the first time the forensic value of a CPU has been considered.

[35] In Frangione v. Vandongen et al., 2010 ONSC 2823, defence evidence on the motion was that the only way to quantify computer usage is to examine the contents of the hard drive through a computer forensic analysis. Master Pope summarized the forensic process as follows:

“(a) forensic imaging: To preserve the original hard drive, an exact bit-by-bit copy of the entire physical hard drive is taken by connecting to the drive a device called a “write blocker” with read-only access which is used to prevent anything from being written to it during the imaging process. A copy (working copy) of the forensic image is taken and used for analysis. The forensic image is created using industry standard tools and methodologies (not set out in the letter). Appropriate measures are taken to track and document chain of custody.

(b) forensic analysis: The analysis will reveal the usage of the computer. During the imaging process, the date and time setting of the computer’s internal clock is determined. All conclusions are based on the timestamps of the internal clock. The analysis will encompass an examination of the following: operating system configuration to determine all people who logged into the computer, recent Internet browsing activity including information about the actual websites visited, the date and time of each visit and possibly the duration spent viewing each webpage, unused space in an attempt to recover deleted Internet activity records, e-mail usage, game playing activity, Facebook activity. If the computer is configured in such a way that it records each time it was turned on and off, this information will also be analyzed. Thereafter, the Plaintiff’s Internet usage will be mapped and presented in tabular and graphical forms.

(c) expert report: Upon completion of the forensic analysis, a report will be prepared that will detail the scope of the investigation, the forensic analysis that was carried out and the findings.”

[36] In Desgagne v. Yuen, 2006 BCSC 955, Myers J. delineated the information on a CPU to three categories: electronic documents, metadata and Internet browser history.

Electronic Documents

[37] In Frangione v. Vandongen 2010 ONSC 2823, the evidence from the forensic analyst was not different from Mr. Rogers. Once the analyst has the CPU, s/he has access to all stored data. He said:

(a) the proposed forensic examination allows the defence unrestricted access to all activities that device user carried out including:

(i) solicitor-client communications with Plaintiff’s counsel;

(ii) e-mail correspondence sent or received from that computer;

(iii) calendars stored on the computer;

(iv) personal diary entries;

(v) banking information;

(vi) passwords and log-ins for all password protected content.

(b) s/he would be unable to determine with any certainty whether the computer was used at all times when it was turned on; and

(c) the information that s/he will retrieve may be partial and incomplete.

[38] The Defendant’s request for access to the Plaintiff’s electronic documents is speculative fishing. The defence did not identify an electronic document that bears on the work capacity or enjoyment of life issues. The Court cannot lose sight of the underlying principles regarding document production. Myers J. analogized the computer to a filing cabinet at paragraph 20 as follows:

“The documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or 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. (para. 20)”

[39] This analogy was repeated by Master Pope in Frangione at paragraphs 59 and 60:

(59) The Defendant has the onus under Rule 30.06 to prove “by any evidence” that the Plaintiff failed to disclose a relevant electronic document. The evidence cannot be based on mere speculation. The scope of discovery at the discovery stage is based on relevancy; therefore, the range of evidence acceptable on a motion under Rule 30.06 is not as broad as it was based on the predecessor rules of “semblance of relevance.” Aside from the Facebook issue, the Defendant has not identified any one specific document located on the Plaintiff’s computer that may be relevant. Essentially, the Defendant contends that they are all relevant to what the Plaintiff does on a day-to-day basis.

(60) Courts have repeatedly used the analogy that a computer hard drive is the digital equivalent to a filing cabinet. A request to be able to search a party’s filing cabinet in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed – and its digital equivalent should also not be allowed.

[40] The IPhone and IPad CPUs are equivalent to a filing cabinet. There is no evidence of a failure to disclose. It is insufficient to suggest that all documents might be relevant when intrinsically they are not. It is speculative fishing. The Plaintiff’s electronic documents have not been shown relevant.

[41] If I am incorrect in that conclusion, as the Plaintiff is the exclusive user of the two devices, third party privacy is not at stake.

[42] The Plaintiff confirmed she communicates with legal counsel on these devices and asserts privilege.

Internet Sites

[43] The particulars of Internet sites visited by the Plaintiff does not correlate with and is not a measure of how much time the Plaintiff can work on a computer at a desk, or length of functional focus or an assessment of reasoning capacity. I concur with Master Pope’s conclusion regarding the particular Internet sites the Plaintiff accesses. For the most part Internet surfing is a mindless distraction. The particular sites are not relevant to the issues in this action for reasons similar to those rejecting the claim for disclosure of the electronic documents.

Metadata

[44] The Plaintiff is not required to produce her computer devices, electronic documents, Internet site records or metadata to the Defendant for forensic analysis.

[45] The metadata issue requires a separate analysis from typical electronic documents. The metadata is the time/date stamp rather than content. In applying for the metadata, it is not the content of the documents that is sought but rather information which shows the use to which the party puts her computer. In a personal injury action this information may be required to enable assessment of the Plaintiff’s computer functionality after the injury. All of the recorded information would therefore be relevant.

[46] Myers J. observed that: “In applying for the metadata, it is not the contents of the documents that the Defendants are seeking, rather it is information which shows the use to which the Plaintiff puts her computer. The Defendants wish to obtain this information in order to enable them to assess the Plaintiff’s computer functionality after the accident. This is not, therefore, a situation where there exists a repository of documents some of which might be relevant and some not, to which a party wants to gain access. At the level of the metadata, if the Defendants are correct, all of the recorded information would be relevant.”

[47] A forensic analysis of computer usage that is not a search for document content nevertheless allows unrestricted access to all of the electronic documents and Internet sites stored in the computer.

[48] The Defendant’s position is that the metadata on the IPhone and IPad will quantify the Plaintiff’s daily computer usage and is directly relevant to the assessment of damages for loss of enjoyment of life and her ability to work. She is the exclusive device user. There is no need to allocate usage among diverse users.

[49] The Plaintiff reports using her IPad and IPhone through the day every day, either sitting in a recliner chair of on a couch, but never sitting in a chair at a desk. She confirmed these devices were “on” through the day whether she was using them or not. She uses these devices for email communications, Facebook, playing games, texting, telephone service and Internet access.

[50] Master Pope in Frangione concluded that the metadata generated by the Plaintiff’s computer was relevant with minimal probative value. In paragraph 67, she analogized the metadata record to a pay stub or record of employment.

“In my view, if there is a document that reveals information relative to the Plaintiff’s testimony about the amount of time he spends on his computer, then that document is relevant to the issues in the action. To use my own analogy, metadata stands in no different light than a record of employment, also known as a pay stub, when it comes to demonstrative evidence. For example, where a Plaintiff testifies that he only worked two out of the last six months, the Plaintiff would routinely produce his record of employment or pay stubs as documentary proof of his testimony. The pay stubs may contain information about the number of days worked, specific days works and hourly rate similar to metadata that contains, for example, information about dates and times when an e-mail was created and sent, or dates and times when a website was accessed.”

[51] To the contrary, Justices Myers in Desgagne and Dorgan in Park v. Mullin, [2005] B.C.J. No. 2855 rejected the relevance of the Plaintiff’s computer usage pattern and daily time spent on the computer to assessment of the Plaintiff’s level of functioning, ability to use a computer or her ability to focus, concentrate, reason, manipulate images and data and stay on task.

[52] The advice from Steven Rogers is that metadata is not necessarily reliable as evidence of activity use. He stated that retrievable metadata on these devices “may” reveal the level of activity on each device and depending on the activity, possibly the length of time of such activity. Metadata records will show evidence of the date and time a page was visited but not the actual length of time the user looked at the page. If the user leaves and returns to the same site, the duration of the visit is not recorded. Once started, the IPhone and IPad applications run until the user specifically terminates, whether or not the device user is engaged in a particular application.

[53] Mr. Rogers and the forensic analyst in Frangione confirm that they would be unable to determine with any certainty whether the computer was used at all times when it was turned on and the information that s/he will retrieve may be partial and incomplete.

[54] Both Justices were unable to correlate usage analysis, given the reliability caveats, to computer and cognitive functionality in the workplace. They concluded that evidence of the Plaintiff’s cognitive and physical function is effectively gained by assessment of the Plaintiff by those who are expert in those fields, by the examination of witnesses, including the Plaintiff herself.

[55] Both Justices concluded that the information sought by defence was entirely too broad. For reasons in favour of production, where the Defendant was able to narrow the analytical purview to a time of night specific to the Plaintiff’s representations sufficient to identify the connectors between the omitted evidence and the proposition for which it was proffered, see Bishop (Litigation guardian of) v. Minichiello, [2009] B.C.J.No.692.

[56] The Plaintiff’s privacy interest in the metadata on her IPhone and IPad is minimal. There is minimal probative value in this data to the issues of enjoyment of life and work capacity. Other than the bald assertion of relevance in the context of the claim, I am unclear on the inferences that can be drawn from usage analysis as depicted by Mr. Rogers. The Defendant psychiatrist did not suggest that the Plaintiff’s computer metadata would assist in assessing her cognitive and computer functionality or ability to work. He did not outline assessment parameters or protocol. There are significant privacy interests at stake in the Plaintiff’s electronic documents and a search for metadata allows access to everything in computer memory.

Casino Card

[57] The Plaintiff shall authorize the release of the casino records compiled on her casino card.

[58] The Defendant’s position is that the casino card will archive the Plaintiff’s activities in the casino and document times inside the building, slot activity, bingo activity, expenditures and winnings. The defence submits this information to be relevant to work capacity and enjoyment of life. The Plaintiff acknowledges regular casino attendances. She reports the value of participation as distraction from pain and worry.

[59] I agree with the relevance contention, at least in the discovery context. There are alternate inferences relative to enjoyment of life and work capacity to be drawn from information about her casino activities. The Plaintiff is entitled to hedonic distraction from pain and depression. The evidence is she is a regular patron and distraction activity may indicate workplace capacity in the form of focus, concentration, reason and ability to stay on task. Proportionality is not an issue. The privacy interest is minimal.

United States Border Records

[60] The Plaintiff shall execute and deliver the form the US border authority requires to release its US entry records for the Plaintiff. The Plaintiff provided the Canadian return records on file for the Plaintiff. The Plaintiff implicitly accepted the relevance of her border crossing activity relative to work capacity or enjoyment of life by producing the record. The US border records close the loop.

Spouse Border Crossing Records

[61] Mr. Merpaw’s border crossing records are not relevant to the assessment of the Plaintiff’s work capacity and enjoyment of life and the Plaintiff is not required to solicit his consent to release.

[62] The Plaintiff acknowledges frequent visits to the casino and weekend visits to the campground. Border crossing records depicting many crossings is not surprising. But for the implicit acknowledgement of relevancy of the Plaintiff’s border crossing records, I am unclear on how those records bear on Plaintiff’s work capacity or enjoyment of life.

Vehicle Financing Records/Joint Bank Account Records

[63] The Plaintiff shall produce a copy of her part of the vehicle loan application and purchase agreement. Any information regarding her spouse’s payment capacity is to be redacted.

[64] The evidence from the Plaintiff is that except for the two-week trial with Startec, she has not worked for pay since the fall. She qualified for Canada Pension disability benefits. If the Plaintiff has an income source other than CPP benefits it has to be off the books. Income disclosure for income tax purposes is flagged by CPP. Her husband’s business failed at some point. He was in receipt of WSIB benefits in 2011 but recovered and returned to work. They bought a 2011 Challenger in 2013 and the Plaintiff, rather than exposing their financial circumstances to the world on her public Facebook page, did not contest a suggestion from a friend that she used slot proceeds to pay for it. She reports they traded another vehicle for down payment and financed the rest. Her husband makes the payments. She and her husband take an annual vacation to a southern destination.

[65] The defence views these financial circumstances as enigmatic and suspects the genuineness of the Plaintiff’s actual post fall income representations. The defence posits the relevance of the loan application for the car purchase lies in the application disclosures. The Plaintiff wanted the car and if she were ever to disclose the full extent of their finances, it would be the loan application. The lender would require documentary evidence of financial ability to make the payments. Lending institutions rely on institutional evidence of income. That income would be reportable.

[66] From the Plaintiff’s perspective, the loan application has the ability to close the loop and move this file toward settlement. If the application content matches her representations, it is dispositive of that area of dispute. The document is not much different from the pay stub analogy referenced by Master Pope in Frangione. I expect that the loan application involved both spouses. Her husband’s income information is not relevant.

Joint Accounts

[67] The bank records are not relevant to the issues of the Plaintiff’s work capacity or enjoyment of life and it would be a stretch to assign substance to a suspicion of alternate income source.

[68] Notice of this motion was not served on Mr. Merpaw.

[69] An order under 30.10 should be made only in exceptional circumstances. The Applicant for an order for production of documents from non-parties bears the burden of showing that it would be unfair to make them proceed to trial without production of the documents. Considerations include:

i. the importance of the documents to the litigation;

ii. the position of the non-party with respect to production;

iii. the availability of the documents or their informational equivalent from some other source which is accessible to the moving party;

iv. the relationship of the non-party from whom production is sought to the litigation and the parties to the litigation. Non-parties with an interest in the subject matter of the litigation and whose interests align with the party opposing production are more susceptible to a production than a true stranger to the litigation.

[70] This component of the motion fails under the first consideration.

[71] The Plaintiff’s evidence is that she does not own a bank account in her name alone. She and her husband share joint accounts. The Defendants argue that access to the joint accounts may help solve the perceived enigma in the Plaintiff’s financial circumstances and lifestyle. There may be evidence of an undeclared income source.

[72] There is no evidence of an independent income source for the Plaintiff. The Plaintiff’s explanations were reasonable and do not raise veracity questions. The defence discernment is speculative and the demand is a fishing initiative. If the Plaintiff had another income source, her CPP disability benefits would be withdrawn. She continues to receive benefits.

[73] Accordingly the Plaintiff shall:

1. Execute and deliver a consent authorising the Akwesasne Casino to disclose all of their records as to the Plaintiff’s visits to the casino and all records with respect to money spent and won by the Plaintiff between 2004 and 2014 to the Defendant. Defendant to bear the disbursements involved with the casino;

2. Produce to the Defendant the loan application and purchase agreement for the Challenger, redacted to exclude any reference to her spouse’s information;

3. Execute and deliver the consent that authorizes the US Customs and Border Protection Services to release all information they have relating to her entry to the US between 2004 and 2014 to the defendant. Defendant to bear the disbursements involved with the Border Protection Services; and

4. Attend at an examination for discovery to answer questions relating to the production of this documentation.

5. The remaining demands are dismissed.

[74] The Defendant shall deliver the fruits of these enquiries to Plaintiff counsel on receipt.

[75] If the parties are unable to agree on costs they are to submit submissions to my attention within 30 days.

Justice Rick Leroy

Date: February 20, 2015