COURT FILE NO.: CV-21-219
DATE: 20230808
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Haweya M. Mohamud, Plaintiff
AND:
Christopher J. Juskey and Victor Juskey, Defendants
BEFORE: Justice C. Boswell
COUNSEL: A. Kuciej for the Plaintiff
C. O’Reilly for the Defendants
HEARD: July 26, 2023
ENDORSEMENT
[1] A motor vehicle accident occurred on August 15, 2019 on High Tech Road in Richmond Hill. The plaintiff alleges that the defendant, Christopher Juskey, lost control of his vehicle on a wet road as he was travelling westbound, crossed over the centre line and collided with her vehicle as she was travelling eastbound. She says she suffered injuries as a result of the collision including a concussion, whiplash, other soft tissue injuries, chronic pain, and psychological injuries including depression.
[2] The plaintiff sues Christopher Juskey, along with Victor Juskey – the owner of the vehicle Christopher Juskey was driving – for damages in the amount of $1.3 million. She seeks damages for, amongst other things, pain and suffering, loss of enjoyment of life, lost income (both past and future), and future care costs.
[3] The plaintiff commenced this action on January 19, 2021. The defendants filed a statement of defence on or about March 18, 2021. The action was set down for trial on or about November 29, 2021. A pre-trial conference was held on March 27, 2023. The action is scheduled for trial in the Central East fall trial sittings, which commence November 20, 2023.
[4] To assist in establishing her damages, the plaintiff has obtained and served three experts’ reports. One is from a physiatrist. The others are from an occupational therapist and an accountant.
[5] The defendants want to obtain their own experts’ reports to assist them in answering the plaintiff’s claim. They want the plaintiff to attend two specific medical appointments with experts of their choice: one an orthopedic surgeon; the other an occupational therapist. They move, under s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 33 of the Rules of Civil Procedure, for an order compelling the plaintiff to attend those appointments.
[6] The plaintiff resists attending any defence medical examinations. She says it is too late in the day for the defence to be seeking to obtain experts’ reports. The deadline for service of experts’ reports, set out in the Rules of Civil Procedure, has already come and gone. Granting the relief sought by the defendants will, the plaintiff says, inevitably result in prejudice to her. It will mean she either has insufficient time to obtain replies to the defendants’ expert reports or she will have to seek an adjournment of the trial to obtain such replies.
[7] The defendants also ask the court to order the plaintiff to disclose digital copies of her social media accounts with Facebook and Instagram. Again, the plaintiff demurs. She resists production on the basis that there is, she says, minimal probative value to the contents of her social media accounts. At the same time the disclosure of the contents of her Facebook and Instagram accounts will result in substantial prejudice in the form of a significant intrusion on her personal privacy.
[8] For the reasons that follow, I decline to order the plaintiff to attend the proposed medical appointments. I further decline to order the plaintiff to disclose the entire contents of her social media accounts, but I do order her to provide a further and better affidavit of documents, which includes relevant postings from those accounts.
ISSUE ONE: DEFENCE MEDICALS
The Legal Framework
[9] The defendants urge the court to compel the plaintiff to attend the following two medical appointments:
(i) An appointment with Dr. Bruce Paitch, Orthopaedic Surgeon, on August 28, 2023 at 1:30 p.m.; and,
(ii) An appointment with Angela Flemming, Occupational Therapist, on September 13, 2023. This appointment will involve an in-home assessment.
[10] The defendants’ expectation is that Dr. Paitch will have a completed report within three weeks and that Angela Flemming will have a report within one week. If those estimates hold true, both the defendants’ expert reports will be delivered in about the third week of September 2023.
[11] There is no dispute that the court has the jurisdiction to compel the plaintiff to attend defence medical appointments. Section 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”), provides as follows:
Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
[12] In Ontario, where the physical or mental condition of a party is in question, a defendant is prima facie entitled to a first medical examination. See Moore v. Bertuzzi, 2012 ONSC 5399 at paras. 34-35, citing LaForme v. Paul Revere Life Insurance Co., [2006] O.J. No. 2508 (Ont. Div. Ct.).
[13] Notwithstanding what appears to be a presumptive entitlement to a first defence medical, s. 105 of the CJA is clearly discretionary. In exercising its discretion under that section, the court must, as always, consider the interests of justice which may include a wide range of considerations, including any prejudice to the plaintiff. See Woolsey v. Industrial Alliance Insurance and Financial Services Inc., 2016 ONSC 7617, at para. 16.
[14] The interests of justice will also include a consideration of whether the defendants are in compliance with the applicable rules of the court relating to obtaining and delivering experts’ reports.
[15] The Rules of Civil Procedure contain very specific requirements regarding experts’ reports, including the timeframe in which they are to be served.
[16] Rule 53.03(1) provides, in particular:
(1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference … serve on every other party to the action a report, signed by the expert…
[17] As I noted, the pre-trial conference in this case took place on March 27, 2023. To comply with r. 53.03(1), the defendants needed to have served any expert reports they rely on by December 27, 2022.
[18] Rule 53.03(3)(a) provides that an expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in a report served under r. 53. In other words, an expert may not testify on an issue if, amongst other requirements, his or her report was not served within the timelines imposed by r. 53.03(1).
[19] The defendants are in no position to comply with the timelines imposed by r. 53.03(1). They ask the court to extend the time for service of their expert reports. Rule 3.02 provides the court with a general discretion to extend or abridge any time period prescribed by the Rules. Moreover, r. 53.04(b) specifically provides that a judge on motion may extend the time provided for the service of an expert report.
[20] Rule 53.04 does not offer any guidance as to what factors the court should take into account when considering whether to extend the time by which an expert’s report is to be delivered.
[21] When a rule is discretionary but does not reference particular factors to consider when exercising the discretion, the court will generally apply the interests of justice standard to the exercise. The court will also have regard, of course, to the overarching principle – set out at r. 1.04 – that the Rules are to be construed liberally in order to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[22] In this instance, however, both counsel submitted that a more specific test should be applied to determine whether the time limit imposed by r. 53.01 should be extended. Specifically, they submitted that the court should apply the test, set out in r. 53.08, that the trial judge would otherwise apply in determining whether a late-served report should be admitted into evidence at trial.
[23] Rule 53.08(3) provides that where the requirements of r. 53.01(1) have not been complied with, an expert may not testify with respect to an issue except with leave of the trial judge. Pursuant to r. 53.08(1) leave may be granted if the non-complying party satisfies the court that:
(a) there is a reasonable explanation for the failure to comply; and,
(b) granting leave would not,
(i) cause prejudice to the opposing party that could not be compensated by costs or an adjournment; or,
(ii) cause undue delay in the conduct of the trial.
[24] Even if the court orders the plaintiff to attend the defendants’ proposed expert examinations, the defendants will not be in a position to introduce any reports generated by those examinations because they have failed to comply with r. 53.01.
[25] I am not the trial judge and am not, in the result, in a position to grant them leave to call otherwise non-compliant expert evidence at trial.
[26] Having said that, the relief sought by the defendants on this motion – the extension of the time to comply with r. 53.01 – is the functional equivalent of granting leave to the defendants to adduce late-delivered experts’ reports into evidence at trial. I say that because extending the deadline by which the defendants must serve their experts’ reports will effectively cure any non-compliance with r. 53.01 and the presumptive exclusion of the experts’ reports from evidence will not apply.
[27] In the result, I agree with counsel that it is appropriate to apply the test in r. 53.08 in this instance.
[28] It is important to note that the text of r. 53.08(1) was amended in March 2022. Prior to that time the text of the rule provided that the court shall grant leave to a non-compliant party unless doing so would cause non-compensable prejudice or undue delay. The rule now provides that the court may grant leave. Moreover, the rule now requires the non-compliant party to demonstrate that there is a reasonable explanation for the failure to comply with the Rules.
[29] The amendments to r. 53.08(1) are significant and were intended to address the chronic problems that late-filed experts’ reports have historically created for the court’s ability to schedule and hear civil trials. See, for instance, Khan v. Baburie, 2021 ONSC 1683 at para. 45.
[30] As R.S.J. Edwards observed in Agha v. Munroe, 2022 ONSC 2508, at para. 30, the purpose of the amendments to r. 53.08(1) was to “send a very loud and clear message to all sides of the Bar that expert reports are to be served in a timely manner and in accordance with the provisions of r. 53.01(1) and (2).” He went on, at para. 32, to express the following views about the need for litigants to comply with the Rules:
Lawyers and litigants need to adapt to the new rule immediately. The late delivery of expert reports simply will not be rubber-stamped by the court. By shifting the onus to the party seeking the indulgence and changing the word “shall” to “may”, the exercise of the court’s discretion will, in my view, result in far fewer adjournments and more productive pre-trials. There will always be circumstances that are beyond the control of counsel and the parties which will fall within the definition of a “reasonable explanation” for failing to comply with the timelines for the service of expert reports. In this case, no such reasonable explanation was provided to the court.
A Chronology of Relevant Events
[31] A brief chronology is required to put the defendants’ request for an extension of time into context.
[32] The plaintiff’s claim was commenced on January 19, 2021. She served her experts’ reports between September 23, 2021 and October 12, 2021.
[33] A mediation was conducted on November 22, 2021. It was unsuccessful. The plaintiff served a Trial Record on November 29, 2021, thereby setting the action down for trial.
[34] The plaintiff’s counsel began canvassing dates for a pre-trial conference in April 2022. He experienced a level of unfortunate frustration in obtaining available dates from the court – a regrettable artifact of the Covid-19 pandemic.
[35] A slate of available pre-trial dates was eventually released by the court in December 2022. On December 16, 2022 a pre-trial date of March 27, 2023 was agreed upon by the parties.
[36] The agreement on a pre-trial date was evidently made between law clerks in the respective offices of counsel to the plaintiff and the defendants. The plaintiff’s clerk corresponded with the defendants’ clerk on December 12, 2023 advising of the availability of March 27, 2023 as a pre-trial date and confirmed that plaintiff’s counsel was available that date. The defendants’ clerk responded that defence counsel was available that date but she did not know if the defendants’ insurer was available.
[37] On December 16, 2022, the defendants’ clerk indicated that although she had not yet heard from the insurer as to availability, the March 27, 2023 date should be booked lest it be lost due to a delay in booking.
[38] Defence counsel, Mr. Regan, filed an affidavit in which he deposed that he was not consulted by his law clerk with respect to the booking of the March 27, 2023 pre-trial date. He did not become aware of the scheduled pre-trial, he said, until sometime in January 2023. Upon his review of the file at that time he noted that there were no defence expert medical reports. Mr. Regan, I note, was not the first lawyer on the file for the plaintiffs. Counsel who initially had carriage left Mr. Regan’s firm in March 2022. Mr. Regan assumed carriage of the file in late June 2022.
[39] At any rate, Mr. Regan wrote to the defendants’ then counsel, Mr. Mester, on February 3, 2023 and raised the issue of arranging for defence medicals. He advised that the experts the defendants wanted to retain were not available until March or April 2023. Mr. Mester responded on that same date, advising that the plaintiff was opposed to participating in any defence medicals because she hoped that the action would be placed on the May 2023 trial sittings following the pre-trial on March 27, 2023. In Mr. Mester’s view, there would be insufficient time for the plaintiff to respond to any experts’ reports delivered so close to the anticipated trial date.
[40] Later that same day, Mr. Regan and Mr. Mester had a telephone conversation about the defence medicals issue. Mr. Regan advised that he would see what specific dates their preferred experts had available. Mr. Mester said he would seek instructions. Still later that day, Mr. Regan reported back that he had booked defence medical appointments with Dr. Paitch and Angela Flemming for February 28, 2023 and April 17, 2023 respectively.
[41] On February 21, 2023, Mr. Regan’s clerk wrote to Mr. Mester and advised that they needed to know by the end of that day if the plaintiff was prepared to attend the scheduled appointment with Dr. Paitch, as they would incur a $1,500 cancellation fee if they cancelled within five days of the appointment. Mr. Mester responded on February 24, 2023 indicating that the plaintiff would not be attending the appointment. The cancellation fee was incurred.
[42] Roughly three weeks later, on March 27, 2023, the plaintiff served a Notice of Change of Solicitor appointing Mr. Joseph Campisi Jr. as counsel of record. Mr. Campisi attended the pre-trial on March 27, 2023 for the plaintiff and asked that the trial be scheduled for the November 2023 trial sittings, rather than the May 2023 sittings.
[43] RSJ Edwards presided over the pre-trial. His endorsement notes that the defendants wished to have the plaintiff examined by Dr. Paitch and Ms. Flemming but that the plaintiff would not consent. He directed that the defendants’ motion for defence medicals be expedited on a regular Newmarket motions list, on a date to be agreed between counsel.
[44] On April 3, 2023, the plaintiff’s counsel advised that the only dates they were available to argue the expedited motion were July 19 or 26, 2023.
[45] In the meantime, Mr. Regan asked Mr. Campisi if the plaintiff would attend the appointment with the defence occupational therapist on April 17, 2023. Mr. Campisi said his client would not attend any medical examination.
[46] The motion ultimately proceeded on July 26, 2023 where one of the arguments advanced by the plaintiff was that it is now too close to the November 2023 trial date to proceed with defence medicals.
Analysis
[47] The foregoing chronology demonstrates an absence of reasonableness on both sides.
[48] On the defence side, there was either a complete lack of attentiveness to the needs of the file or there was a considered decision to delay the request for defence medical appointments until a time when it was impossible to comply with the Rules. Either way, the defence file has not, in my view, been conducted in a reasonable manner.
[49] Defence counsel who argued the motion, who does not have carriage of the file, submitted that, because there is only one opportunity to obtain defence medicals, their practice is to wait until closer to the pre-trial to schedule such appointments. To that submission I can only repeat R.S.J. Edwards’ directive at para. 32 of Agha v. Munroe: “Lawyers and litigants need to adapt to the new rule immediately.”
[50] The plaintiff’s counsel lamented that the office of defence counsel appears to be conducting “business as usual” despite the amendments to r. 53.03. I agree. It does appear that way.
[51] Having said that, it is truly unfortunate, in my view, that this issue is being litigated as late in the day as it is. Any meaningful prejudice to the plaintiff could have been avoided had she agreed to attend the defence medical appointments scheduled in the spring. And the asserted prejudice – the lack of sufficient time to respond to any defence experts’ reports – could largely have been attenuated if the plaintiff’s counsel had demonstrated more of a sense of urgency after R.S.J. Edwards ordered this motion heard on an expedited basis. Taking the position that they could not make themselves available for a one-hour motion for more than three months, under the circumstances, was not reasonable nor expeditious.
[52] It is within that overall culture of unreasonableness that I come to apply the test under r. 53.08. The first question is whether there is a reasonable explanation for the failure to comply with the Rules.
[53] The explanation on offer is that the defendants’ clerk agreed to fix a pre-trial date without first consulting with counsel who had carriage of the file. The court is invited to draw the inference that had such a consultation occurred, counsel would have insisted on a pre-trial date farther down the road, so that defence experts’ reports could be obtained and served in compliance with the Rules. At the very least, in consideration for agreeing to an earlier pre-trial date, defence counsel may have been in a position to negotiate concessions regarding the attendance at defence medical examinations and the late-filing of any reports generated as a result of those examinations.
[54] The explanation is, in my view, weak. The case went through a failed mediation and was then set down for trial. The next step in the process is a pre-trial conference. Defence counsel were aware – or ought to have been aware – that the plaintiff’s counsel was beginning to seek pre-trial dates as early as April 2022. That should have triggered the realization that if defence expert reports were going to be sought, the time was nigh to go about organizing them. For reasons best known to defence counsel, they did nothing.
[55] Having said that, I do accept counsel’s explanation regarding how and why his firm agreed to a date for a pre-trial that immediately compromised their ability to comply with r. 53.01. That was obviously an inadvertent error.
[56] The central question is whether one could describe the explanation as reasonable. In my view, one cannot. The explanation is understandable, but that does not make it reasonable. Certainly not when considered in the context of the culture change that the recent amendments to the Rules was intended to stimulate. It regrettably took almost a year and a half for the parties to obtain a pre-trial date after the plaintiff set the action down for trial. The defendants’ explanation for why its expert reports were not served prior to the pre-trial turns on something that happened in December 2022. It offers no explanation for why the defendants had not sought out defence medicals at any point between November 2021 – when the case was set down for trial – and December 2022.
[57] As I noted, counsel who argued the motion advised me that the practice of their firm is generally to wait until closer to the pre-trial conference to obtain defence experts’ reports. And again, it seems to me, in light of the content of r. 53.01 and the recognized significance of the pre-trial conference, that defence counsel ought to have been looking to line up their experts’ reports as soon as the matter was set down for trial.
[58] While I understand it is harsh to say, my view is that the problem here was largely the result of an inattentiveness to the requirements of the file. And that can surely not rise to the level of reasonableness when one is assessing the explanation for non-compliance with r. 53.01.
[59] As I noted, the amendments to r. 53.08 were intended to combat the chronic problem of late-delivered defence experts’ reports. What happened in this case is an illustration of the very problem the rule is meant to address. If r. 53.08(1) offers what defence counsel described as an “escape clause” in the circumstances present here, then it will be diluted to the point of ineffectiveness.
[60] Had I found that the defendants’ explanation for non-compliance was reasonable, I would have been satisfied that, on balance, granting the extension sought would not result in non-compensable prejudice or undue delay. I would have reached that conclusion for the following reasons:
(a) The reports the defendants seek could have been ready before the end of September 2023. That would have given the plaintiff almost two months before the trial date to organize evidence in response to those reports, if it was needed. In other words, I think it unlikely that the plaintiff would have been prejudiced by an inability to respond to the defendants experts’ reports; and,
(b) At worst, the plaintiff would have been compelled to seek an adjournment of the trial to the spring 2024 trial sittings in order to respond to the defence experts’ reports. This case was commenced in January 2021. In the current litigating environment, a trial date just over three years from the issuance of the claim is not horrible. As delays go, it does not, in my view, qualify as “undue”. It must also be remembered that the plaintiff is partially to blame for the timing difficulties that now exist. She could have attenuated them but made the tactical decision not to.
[61] That said, my conclusion that the defendants have failed to offer a reasonable explanation for non-compliance with r. 53.01 is determinative. In the circumstances, I decline to order the plaintiff to attend the medical appointments arranged by the defence. It is not reasonable, in my view, to compel the plaintiff to engage in that process when any evidence generated by those appointments will be presumptively inadmissible at trial and where the defendants have failed to satisfy me that the test to rebut that presumption is met.
ISSUE TWO: THE SOCIAL MEDIA ACCOUNTS
The Legal Framework
[62] Rule 30.02(1) requires parties to a civil action to disclose all relevant and material documents in their possession, control or power.
[63] Relevance and materiality are determined by the pleadings, the substantive law and the positions taken by the parties.
[64] The plaintiff, like millions of other Canadians, has an active presence on social media. There is no dispute that she has active Facebook and Instagram accounts. The defendants seek disclosure of the entire contents of those accounts. They say that there is good reason to believe that those accounts will provide evidence in the form of photographs displaying the plaintiff engaging in a variety of activities. Such photographs are, they submit, relevant to the assessment of the plaintiff’s claim for damages for certain injuries she claims she suffered in the motor vehicle accident on August 15, 2019.
[65] The plaintiff is not prepared to make the disclosure sought. She submits that the defendants’ request should be denied on the ground of relevance, or a lack thereof, and on the ground that it constitutes an unreasonable intrusion on her personal privacy.
[66] The assessment of relevance is usually straightforward. Relevance is a relational concept with a very low threshold. Evidence is relevant if, as a matter of logic and human experience, it renders a fact in issue more or less likely than it would be without the evidence. See R. v. Candir, 2009 ONCA 915 at paras. 47-48.
[67] The assessment of a privacy claim in the context of disclosure in a civil proceeding is not as straightforward.
[68] The civil law in Ontario appears to lack a recognized legal framework against which to analyse assertions of privacy in the context of a disclosure application, other than in those circumstances in which a party resisting disclosure may have a sustainable claim to privilege. There is no assertion of privilege in this instance with respect to the contents of the plaintiff’s social media accounts.
[69] In M.(A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, Justice McLachlin, as she then was, arguably suggested that a procedure similar to the O’Connor[^1] framework for assessing an accused person’s request for third party records might be helpful in assessing and balancing a civil litigant’s assertion of privacy in otherwise relevant records. Applying that framework would essentially introduce a principled approach to the determination of whether records over which a privacy interest is asserted should be ordered disclosed.
[70] The O’Connor framework involves an initial threshold requirement that the accused demonstrate that the records in issue are likely relevant to a live issue in the proceedings. Should the accused meet that threshold, the court will examine the records to assess whether they should be disclosed to the accused. That determination involves a balancing of the accused’s right to make full answer and defence against the privacy and dignity interests of the complainant.
[71] M.(A.) involved an assertion by the plaintiff that the defendant, a psychiatrist who had been treating her – had sexually assaulted her. The plaintiff obtained therapeutic services from another psychiatrist. The defendant sought production of the other psychiatrist’s notes and records.
[72] While the decision in M.(A.) turned on the plaintiff’s assertion of privilege in her therapist’s records, Justice McLachlin made the following comments, at para. 36, about the O’Connor framework of analysis:
…Without referring directly to privilege, [the majority in O’Connor] developed a test for production of third party therapeutic and other records which balances the competing interests by reference to a number of factors including the right of the accused to full answer and defence and the right of the complainant to privacy. 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 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.
[73] I am not aware of any case subsequent to M.(A.) that has applied the O’Connor framework in the context of a civil proceeding. Counsel did, however, refer me to a number of cases where judges of this court appear to have accepted that the court has a discretion to conduct a balancing of probity and prejudice in assessing whether the contents of social media accounts should be disclosed. Those cases include Isacov v. Schwartzberg, 2018 ONSC 5933; Jones v. I.F. Propco Holdings (Ontario) 31 Ltd., 2018 ONSC 23; Stewart v. Kempster, 2012 ONSC 7236; and, Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.). There continues, however, to be no consensus on what precise framework for analysis ought to be applied in terms of the balancing of privacy interests against the entitlement to full disclosure so important to the proper functioning of the adversarial system.
[74] The Rules arguably contain a sufficient mechanism for addressing privacy interests in the context of disclosure requests.
[75] Rule 29.2, “Proportionality in Discovery”, was added to the Rules as part of a number of significant amendments that came into force in January 2010. Rule 29.2.03(c) directs the court to consider, when making a determination as to whether a party must produce a document, whether requiring her to do so would cause her undue prejudice. Presumably, the concept of “prejudice” as used in the context of this rule, is broad enough to include intrusions into a party’s privacy interests.
[76] Indeed, there is support in the jurisprudence for the conclusion that privacy is a matter the court can consider when applying r. 29.2.03(c). See, for instance, Commercial Spring and Tool Co. v. Barrie Welding & Machine (1974) Inc., 2021 ONSC 2591 at para. 24 and Merpaw v. Hyde, 2014 ONSC 1053 at para. 20.
[77] In my view, where a party to a civil action resists disclosure on privacy grounds, the court must, under r. 29.2.03(c), engage in a balancing of the probative value of the records sought against the prejudice that will inure to the party resisting disclosure, or to the litigation process, should the production be compelled.
[78] Parties to civil litigation must appreciate, of course, that there will inevitably be intrusions upon their personal privacy when they are involved in civil court proceedings. After all, the modern trend in civil litigation is towards complete discovery. See General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321, [1999] O.J. No. 3291 (C.A.) at para. 25. Complete discovery of all relevant records is considered essential to the proper functioning of the adversarial system.
[79] The goal of the adversary system is to get at the truth. As McLachlin J. observed at para. 38 of M.(A.), “…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.” She qualified that general observation, however, by adding, “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.”
[80] Balancing probity and prejudice – a function trial judges are well-acquainted with as part of their “gatekeeping function” – will serve to ensure that the truth-seeking function of the adversarial process is respected and promoted, while at the same time ensuring that litigants’ privacy interests are not intruded upon save as necessary for the proper disposition of the litigation.
Analysis
[81] The defendants assert that the pleadings have placed the plaintiff’s functionality, enjoyment of life and ability to work in issue. I agree.
[82] There is no dispute that the plaintiff has active Facebook and Instagram accounts and that she has used those accounts to post photographs of herself.
[83] Facebook and Instagram have both public and private profile settings. Users are able to control who has access to the photographs and other information they post online on their accounts. The plaintiff has both a public and private profile on Facebook. She has a private profile on Instagram.
[84] The defendants have obtained a number of photographs from the public profile of the plaintiff’s Facebook account. They included a small sampling as an exhibit to Mr. Regan’s affidavit. They depict the plaintiff posing, while standing or sitting, with what appear to be a number of family members and/or friends. There is, for the most part, nothing remarkable about them.
[85] That said, at least one photograph demonstrates the plaintiff on a beach, apparently on holiday. That photograph tends to demonstrate the plaintiff’s ability to travel and to enjoy life. It is, in that sense, relevant to one or more live issues raised by the pleadings.
[86] I agree with the defendants that it is a reasonable inference that the private areas of the plaintiff’s Facebook and Instagram accounts will contain content similar to that shared in the public areas of those applications. See Jones. v. I.F. Propco, as above, at para. 32.
[87] I am, in the result, satisfied that it is likely that the plaintiff’s Instagram and Facebook accounts include post-accident photographs of the plaintiff engaging in activities that are relevant to one or more of the live issues in the proceedings – particularly her ability to engage in a variety of activities and her overall enjoyment of life.
[88] That said, the defendants have not satisfied me that the entire contents of the plaintiff’s social media accounts are relevant. Indeed, it seems to me to be considerable over-reaching to ask for a blanket order that entitles the defendants to sift through the entire contents of the Facebook and Instagram accounts of the plaintiff.
[89] At this point, not having seen any of the photographs in issue, I am not able to make a determination about the relevance of any of the contents of the plaintiff’s social media accounts. I have determined only that it is likely that those accounts include photographs that are relevant to one or more live issue in this proceeding and which have not been disclosed.
[90] In the result, I am ordering the plaintiff to produce, by September 15, 2023, a further and better Affidavit of Documents, that lists all of the photographs in her possession, control or power, including those posted on social media accounts, that are relevant to the live issues in these proceedings. Those photographs will include any that display the plaintiff engaging in activities relevant to her claim to a loss of functionality or to her enjoyment of life in general.
[91] The present state of the evidentiary record does not permit an assessment of the probative value of the photographs in issue, nor an assessment of the likely prejudice that will inure to the plaintiff or to the litigation process generally should disclosure of the photographs be made to the defendants. Should the plaintiff continue to assert a privacy interest in any photographs determined to be otherwise relevant, the plaintiff may return the motion before me for an assessment of the privacy issue, on a date to be fixed by the trial co-ordinator.
COSTS
[92] Success on this motion has been divided. That said, the larger issue between the parties was the defence medicals issue. The plaintiff prevailed on that issue. The plaintiff seeks $4,000 by way of partial indemnity costs. In light of the divided success, I fix those costs at $2,500, which will be payable by the defendants within 30 days.
Justice C. Boswell
Date: August 8, 2023
[^1]: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.