Court File and Parties
COURT FILE NO.: CV-17-578161
MOTION HEARD: 20201016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tyler Smith, Plaintiff
AND:
Fred Jarnell, Defendant
BEFORE: Master Jolley
COUNSEL: Meredith Harper, Counsel for the Moving Party Defendant
Ryan Marinacci, Student-at-Law for the Responding Party Plaintiff
HEARD: 16 October 2020
REASONS FOR DECISION
[1] The defendant brings this motion for answers to undertakings and to refusals related to the plaintiff’s social media accounts and his expert’s report.
A. Expert’s Report
[2] Counsel for the plaintiff retained an expert, Pario – Engineering & Environmental Sciences, who prepared an Engineering Evaluation of a Motor Vehicle Incident Report (the “Expert Report”) dated 19 May 2017. On his examination for discovery, the plaintiff was asked to produce all instructions provided to the expert, a description of any research conducted by the expert that led him to form his opinion and a list of every document relied on by the expert in forming his opinion, in other words, the information required by Rule 53.03(2.1). In addition, he was asked to produce any drafts of the Expert Report.
[3] The plaintiff claimed litigation privilege over the Expert Report. The defendant’s view was that the claim of privilege violated the plaintiff’s obligations under subrule 53.03(2.1). He relied on Moore v. Getahun 2015 ONCA 55 for the proposition that Rule 53.03(2.1) is a carefully defined intrusion on litigation privilege and required the expert to disclose the information requested.
[4] The difficulty with this position is that the disclosure obligation under Rule 53.03(2.1) is only triggered when the party elects to call the expert witness at trial. The defendant argues that that intention should be inferred because the plaintiff has already delivered the Expert Report.
[5] The court in Edwards v. McCarthy 2019 ONSC 3925 at paragraph 9 affirmed that delivery of an expert’s report does not, in itself, constitute an intention to call that expert at trial. It is the decision to call the expert, not that delivery of the report, that triggers the obligation to disclose the information sought by the defendant in this instance.
[6] The plaintiff has indicated that he has not yet made a decision about whether the expert will be called at trial. Until he makes that election, the foundational and other material requested by the defendant need not be produced (Nikolakakos v Hoque 2015 ONSC 4738 at paragraph 22).
[7] For the reasons set out in Blank v. Canada 2006 SCC 39, any drafts of the Expert Report need not be produced. In discussing Blank v. Canada, the court in Moore v. Getahun, supra stated:
In Blank, the court noted, at para. 34, that litigation privilege creates “a ‘zone of privacy’ in relation to pending or apprehended litigation”. The careful and thorough preparation of a case for trial requires an umbrella of protection that allows counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports.
Pursuant to rule 31.06(3), the draft reports of experts the party does not intend to call are privileged and need not be disclosed. Under the protection of litigation privilege, the same holds for the draft reports, notes and records of any consultations between experts and counsel, even where the party intends to call the expert as a witness.
[8] The plaintiff need not provide the information set out in Rule 53.03(2.1) unless and until he elects to call the expert at trial. Nor need he produce drafts of the Expert Report. That portion of the motion is dismissed.
B. Social Media Production
[9] The plaintiff alleges that he has suffered permanent and serious impairments of important physical, mental and psychological functions as a result of a motor vehicle accident involving the defendant that occurred on 25 July 2015. He alleges that his injuries have caused him pain and suffering, loss of enjoyment of life and led him to undergo and incur the expenses of therapy, rehabilitation, and other forms of medical treatment and health care. He alleges that his injuries have resulted in his loss of income earning potential, a diminution of income earning capacity, as well as his inability to participate in household, recreational, social and athletic activities to the extent to which he had participated before the accident.
[10] The defendant seeks production of all posts and photos from the plaintiff’s social media accounts that include the plaintiff or show him participating in activities or going on trips, since the motor vehicle accident.
[11] The onus is on the moving party to establish that the plaintiff’s social media accounts have relevant information. The simple existence of a social media account like Facebook does not meet the test of relevance. The test is no different from any other motion for production of allegedly relevant documents. In order to succeed on the motion, the moving party must satisfy the court, based on evidence, that a relevant document has been omitted from the other party’s affidavit of documents (Stewart v. Kempster 2012 ONSC 7236).
[12] Counsel attempted to demonstrate that the plaintiff’s social media accounts had relevant information in two ways – first, through a review of the plaintiff’s questions about his social media on his examination for discovery and second, through the real time sharing of the plaintiff’s pubic Facebook account.
[13] Dealing with the second method first, this Facebook page demonstration by screen sharing is not evidence. The contents of the account were not in the motion record and were not attached to any affidavit. The defendant’s argument that the plaintiff should have produced his public Facebook page does not assist the defendant in having this evidence accepted. Given that it was not properly before me, I did not consider the plaintiff’s public Facebook page that was screen-shared with me during the course of the hearing. As it was not in evidence, the defendant cannot rely on the content of the plaintiff’s public social media account to establish the relevance of his private account.
[14] This leaves the evidence on the plaintiff’s examination for discovery. The plaintiff was examined for discovery on 11 December 2018 and 25 November 2019. The plaintiff advised that he had private Facebook and Instagram accounts that he created when he was young and he also had a Snapchat account. He undertook to preserve those accounts. He was asked for and refused to produce all social media posts and photos that involved activities that he had done or trips he had taken.
[15] He was asked whether he posted pictures of himself and his activities on Instagram and Facebook and he advised he did not post a lot and the one post he could recall was with family. He did not use Snapchat much but he thought it had photos of activities. He was not asked anything else about the content of those private accounts and was not asked whether any of the postings would be of activity relevant to limitations he alleges he has experienced since the accident or any of his complaints in this action. In my view, these limited questions are insufficient to establish that the plaintiff’s social media pages contain information relevant to the matters in issue.
[16] On the record before me, there is no evidentiary basis to satisfy me that any relevant documents exist on the plaintiff’s social media platforms to justify an order for production. That portion of the motion is dismissed.
C. Updated Affidavit of Documents and Particularized Schedule “B”
[17] The plaintiff indicated in June 2020 that he would be delivering an updated affidavit of documents. To my knowledge, he has not yet done so, although he has produced extensive additional documents by way of answers to undertakings.
[18] The parties recognized their ongoing obligation to provide a particularized schedule “B” for any documents for which privilege is claimed as well as updated affidavits of documents as new information becomes available. With the plaintiff’s undertaking to deliver an updated affidavit of documents, I expect him to do so in advance of the upcoming mediation. However, I do not believe an order is required at this stage to enforce this acknowledged obligation.
D. Undertakings
[19] The defendant took the position that Question 346 was still outstanding. Plaintiff’s counsel advised that they had produced all the information they had relating to the Wake Forest University offer. If requested, the plaintiff shall confirm that answer in writing.
[20] At Question 903 the plaintiff undertook to provide the email or last contact information for Brian Chren. He has provided the last known address and not the email. Given he undertook to provide one or the other, the undertaking has been answered.
E. Costs
[21] The plaintiff is entitled to his costs of the motion on a partial indemnity scale. The motion materials were prepared primarily by Mr. Marinacci, an articling student, and the motion was argued by him. The result was a modest and reasonable bill of costs in the amount of $1,635.80. The defendant shall pay that amount to the plaintiff within 30 days.
Master Jolley
Date: 21 October 2020