Ontario Superior Court of Justice

Court File No.: CV-21-00000018-0000
Date: 2025-02-20

Between:
Tamara Ibrahimova and Oleksi Gubenko, Plaintiffs
– and –
Amgeal Dawn Cavanagh, Sivanesan Kalaichandran and David John Anthony Ponesse, Defendants

B. Legate, A. Wolfe, and L. Kilroy for the Plaintiffs
M. Sammon, M. Robins and E. Linn for the Defendants

Heard: January 20, 2025

Production of Video
Amended Reasons for Decision
L. Shaw

1. Introduction

[1] The defendants seek an order for production of video/audio recordings from the plaintiffs’ in-home camera. The plaintiffs oppose.

[2] On February 12, 2025, I released a bottom line ruling that the defendants’ motion is dismissed with written reasons to follow. These are my reasons.

[3] This is a medical malpractice proceeding. The plaintiffs are seeking damages for serious injuries sustained by Ms. Ibrahimova in May 2019 when she suffered a septic pregnancy loss. This resulted in her near-death, kidney injury and transplantation, below knee amputation, brain hemorrhage resulting in a craniotomy, hemiparesis, clawed hand, and seizures. She alleges that the defendants, who are three doctors she saw on different dates in the emergency department, failed to diagnose previable premature rupture of membranes leading to an infection which caused her injuries. As a result, she alleges that the defendants were negligent as they failed to meet the standard of care required of them and that their negligence caused her injuries.

[4] The defendants deny that they were negligent in their treatment of Ms. Ibrahimova. Causation is also in dispute.

[5] The parties hoped to agree on damages prior to trial. Unfortunately, that has not yet occurred. The trial is scheduled to proceed in March 2025 in Owen Sound for five to six weeks. This is a fixed trial date.

[6] Due to the seriousness of her injuries, the plaintiffs are seeking damages in excess of $20 million.

[7] The plaintiffs’ position is that Ms. Ibrahimova will never be able to work and advance a claim for past and future income loss. They also claim that she requires 24/7 attendant care in the home. There are claims for supervisory care, housekeeping, and ongoing medical treatment. Mr. Gubenko, Ms. Ibrahimova’s spouse, also has claims for past and future income loss and for loss of care, guidance, and companionship.

[8] In June 2024, Ms. Ibrahimova gave birth. The plaintiffs seek additional damages for childcare costs and housing costs.

[9] The defendants do not appear to dispute the seriousness and permanency of Ms. Ibrahimova’s injuries. While they have served several reports dealing with the standard of care and causation issues, there has only been one defence medical examination conducted by an occupational therapist (“OT”). That assessment focuses on the future care costs, as there is a dispute about Ms. Ibrahimova’s claims for ongoing care and assistance in her home and to what extent she can carry out her activities of daily living.

[10] I have conducted two pre-trials in this matter. There have also been case conferences to ensure that the matter is ready for trial. As the trial dates are fixed, it is critical that the trial proceed as scheduled. This is of particular concern as there are limited judicial resources in Owen Sound where this trial will be conducted.

[11] At a case conference on January 14, 2025, I was told that the defendants served and filed a motion in Walkerton, where this action was commenced, seeking an order that Ms. Ibrahimova attend for a further examination for discovery and that she produce any and all video and audio recordings from an in-home camera system. In order to expedite the matter, I offered to hear that motion on January 20, 2025.

[12] Following that motion, I ordered that further discoveries be conducted. I also requested further evidence regarding the video and audio recordings. I have now received that evidence, together with supplementary factums from both parties.

2. Review of the Evidence

[13] On December 11, 2024, with the plaintiffs' consent, the defence OT attended at the plaintiffs’ home for a second in-home assessment. This was requested due to the change in the family circumstances following the birth of their child in June 2024 and service of an additional OT report from the plaintiffs in October 2024. About one hour into the assessment, Mr. Gubenko told the OT that the assessment was being recorded. No prior notice of this was given to the OT or the defendants. The OT continued with the assessment after being told that it was being recorded.

[14] After being informed of this by the OT, the defendants requested a copy of that recording; the plaintiffs refused that request. During submissions, Ms. Legate, counsel for the plaintiffs, indicated that she would consent to produce that recording, once the OT’s report was served. She maintained her refusal to produce any other recordings.

[15] I found the proposal to produce the recording after service of the defence OT report reasonable and made that order. I understand the recording was produced but it is only an audio recording.

[16] The only evidence in the plaintiffs’ responding motion record about the in-home camera recording system was that an in-home monitoring device was recommended by the defendants’ OT expert as an alternative to attendant care and that the camera was constantly on to address Ms. Ibrahimova’s attendant care needs.

[17] Given this limited evidence, I requested the following additional evidence from the plaintiffs in my January 21, 2025 endorsement:

• How is the recording made and what recordings are available? For example, is the recording on a 24-hour loop so it re-records every 24 hours or are all recordings available?
• When were the cameras installed?
• Where are the cameras located in the home and what do they record?
• Are the recordings saved in some kind of server or on the cloud and are they accessible?
• Are the recordings just video, just audio or a combination of both?
• How often are the recordings viewed and by whom?

[18] Supplementary affidavits were filed in response to this endorsement.

[19] In connection with the videos already produced to the defendants, Mr. Gubenko’s evidence is that he took 18 videos of Ms. Ibrahimova between September 6, 2019 and March 21, 2021 on his cell phone. Of those 18 videos, 11 were taken while Ms. Ibrahimova was hospitalized in 2019-2020. The seven other videos, taken between April 2020 and March 2021, were taken of Ms. Ibrahimova primarily in their home doing things such as using a stationary bike, sitting on her bed, sitting on a couch, and using her walker for the first time with her new leg prosthesis. All but six of these videos are one minute or less. According to Mr. Gubenko, he took these videos with the idea they could possibly be shown to other people in the future.

[20] None of the videos produced were from the in-home camera system.

[21] Mr. Gubenko’s evidence is that he purchased a home-monitoring video camera system about four or five years ago. The brand name is Geeni. It was installed for safety reasons so that he could monitor Ms. Ibrahimova’s movements in the home when he was not there. The camera system connects to an iPhone app on his phone. He is the only person who can see the live video feed when the system is connected and operating. Both his phone and the app are password-protected.

[22] Mr. Gubenko is currently on paternity leave. Prior to that, he would watch the video feed when he was at work to see if Ms. Ibrahimova had fallen or had a medical event like a seizure. Since he has been at home on paternity leave, he does not watch the feed. More recently, the cameras have not been in use as they have switched internet service providers and he has not set the cameras back up. Prior to that, the cameras were used more as a security system; the live feed is rarely watched.

[23] There are two cameras in the home; one pointed at the kitchen and front door and the other pointed at the kitchen, dining area, living room and hallway to the bedroom.

[24] The cameras or app do not save recordings to a cloud or remote server. There is an option to place a Micro SD card in a camera, which Mr. Gubenko did not always do. When an SD card is inserted, it saves video footage for about 2 to 3 days and then it is overwritten. The camera must have the SD card inserted in order to save the recordings. Mr. Gubenko has given the SD card to his lawyer; he does not know what is saved on it as the cameras have been off for several weeks since switching internet providers. The only way he knows how to watch or listen to the materials is through his phone app.

[25] The only time Mr. Gubenko recalls watching the saved recordings was when movement notifications were turned on and the app alerted him of an unexpected movement in the house.

[26] According to Mr. Gubenko, he never intended the videos to be seen by anyone other than himself and Ms. Ibrahimova.

[27] Ms. Kim Destun, a law clerk from Ms. Legate’s office, filed an affidavit. According to Ms. Destun, the Micro SD card is at the law office. She attempted to review its contents but the law firm does not have the necessary software to do so. Her evidence is that the SD card will have to be sent to an IT company to determine what, if any, video, and audio recordings are on the card. She does not know what that will cost and what other steps would be needed to save the files on the SD card.

3. Legal Principles and Analysis

[28] I will first address the defendants’ argument that the plaintiffs failed to provide the evidence I requested in my January 21, 2025 endorsement.

[29] The defendants argue that the plaintiffs have not:

a) Confirmed that the single Micro SD card that Mr. Gubenko gave to his counsel contains the only extant recordings from the home security monitoring system;

b) Described if and how recordings are preserved on Mr. Gubenko’s phone;

c) Reviewed and described the content of the recordings preserved on the Micro SD card and Mr. Gubenko’s phone; or

d) Explained why the recording of Angela Fleming’s reassessment was only preserved in audio, rather than audio/visual format.

[30] To be clear, I did not order nor did I expect that the plaintiffs would provide a description of any recordings that were preserved on the in-home camera system. I did not order details or particulars of what was on each video. I also presume that the SD card that has been provided to counsel contains the only recordings, if there are any recordings on the SD card. I also did not specifically ask how many videos, if any, were on Mr. Gubenko’s phone. Lastly, I did not ask for any explanation about why the recording from the OT’s attendance is only in audio format.

[31] I do not find that there is a lack of evidence in order for me to make a determination on the merits of this motion.

[32] The jurisprudence has developed over the years with respect to production of images and videos posted by a plaintiff on various social media platforms. Generally, content posted on social networking websites such as Facebook are documents producible under the Rules of Civil Procedure: Leduc v. Brown, para 27 and Papamichalopoulos v. Greenwood, 2018 ONSC 2743, para 11.

[33] Of course, production is only required if the posted content is relevant to the issues in dispute. In this case, the defendants seek production of the recordings on the basis that the extent to which Ms. Ibrahimova needs attendant care and services in the home is an issue in dispute. Accordingly, any recordings of her in the home carrying out any activities of daily living such as cooking, cleaning, etc., are relevant.

[34] The defendants seek an order, therefore, that the recordings on the SD card and Mr. Gubenko’s phone be reviewed and that those videos showing Ms. Ibrahimova carrying out any daily activities be produced.

[35] I agree that such videos are relevant to the issues in dispute, and that if there are recordings which show Ms. Ibrahimova carrying out her daily activities in the home they should be produced. Relevancy is not, however, the only factor to consider. In my view, the plaintiffs’ privacy rights must be considered given the high expectation of privacy a person has in their home. Those privacy interests prevail, even at the production stage.

[36] When dealing with production of documents from social media platforms, claims of privacy rights do not generally override disclosure requirements. Courts have noted that social media platforms are accessible to the public and accordingly, parties making those postings do not have a serious expectation of privacy: Murphy v. Perger, 2007 CarswellOnt 9439 (S.C.), at para. 20. In fact, the primary purpose of postings on social media platforms is to share information with others: Leduc v. Brown, para 35.

[37] In my view, the purpose of the in-home camera recordings in this case is quite the opposite of the purpose of postings on social media sites. The plaintiffs installed the cameras, as per the recommendation of the defence expert’s OT—for safety purposes—so that Mr. Gubenko could monitor Ms. Ibrahimova’s movements in the home when he was not present. There is no evidence that the plaintiffs had any intention nor have they shared these videos with anyone.

[38] A party who commences a claim seeking damages for injuries and places their health, ability to work, and ability to care for themselves in issue does not automatically waive all their privacy rights. In M. (A.) v. Ryan, para 38, McLachlin J. rejected the suggestion that just by commencing an action for damages, a party gives up their right to privacy:

I accept that 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. 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 aspect of her life which need not be probed for the proper disposition of the litigation.

[39] While I agree that the plaintiffs have placed Ms. Ibrahimova’s need for care in the home and ability to carry out activities of daily living at issue, and are seeking significant damages in that regard, that does not mean she has waived all of her privacy rights. A home is the place where a person’s most intimate and private activities are most likely to take place. Indeed, a person’s expectation of privacy is at its highest in their home: R. v. Tessling, 2004 SCC 67, para 22.

[40] The court must determine if the invasion of privacy rights is necessary to the proper administration of justice: M. (A.) v. Ryan, para 10.

[41] Breaching of such significant privacy interests by requesting production of recordings of Ms. Ibrahimova is not required for the proper administration of justice. The plaintiffs consented to the defendants’ OT assessor attending in their home to assess Ms. Ibrahimova and address the very issues in dispute. The jury will hear that evidence and assess the degree to which Ms. Ibrahimova can perform her activities of daily living in her home. They have also questioned her twice at examinations for discovery where this issue I presume was fully explored.

[42] The video cameras are directed towards the living areas in the house; there are no cameras in the bedroom or bathroom. In my view, the location of the cameras is not relevant. There is no lower expectation of privacy in one room of a home versus another. The most intimate and personal of activities can occur in any room in a home. No person should fear that those recordings or images could one day be ordered produced in litigation and viewed by strangers.

[43] I also consider the purpose for which the cameras were installed to be a relevant factor. As noted above, the videos/audios/images that might be captured and stored were not created for any purpose other than to monitor safety in the home. They have not been posted or shared with others. If they had, privacy interests may not prevail. Similarly, had the plaintiffs produced other from this in-home camera system, that may have had a bearing on their claim that their privacy interests are paramount. Given the facts in this case, the sanctity of the plaintiffs’ home must be preserved.

[44] Counsel did not file jurisprudence from any jurisdiction that involved production of videos taken from inside a plaintiff’s home. In my view, the jurisprudence dealing with production from social media platforms, or from a doorbell camera as in Chan v. Pham, 2022 BCSC 2394, are distinguishable from what the defendants are requesting in this matter. None of the cases relied on by the defendants address what I consider to be the most critical issues in this case—the plaintiffs’ privacy interests.

[45] The production of recordings of public activity, as in Chan, where the court ordered production of footage from a doorbell camera that captured a motor vehicle outside the home, is distinguishable from a request for production of recordings of private activity in a person’s home.

[46] Cases where there has been production of surveillance videos taken by a private investigator retained by the defendant showing a person engaged in activities of daily living are also distinguishable. Such videos can be used to either impeach a plaintiff’s credibility or by the defendant as part of their substantive case: Nemchin v. Green, 2019 ONCA 634. Those videos can only be taken if they are of the plaintiff in a public setting. A private investigator cannot record a person in their home. The reason is clear: privacy interests are at their highest in a person’s home.

[47] Thus, while the recordings of Ms. Ibrahimova in her home carrying out her activities of daily living are relevant to the issues in dispute, her privacy interests prevail. Using the words of Heeney J. in Stewart v. Kempster, 2012 ONSC 7236, it would be “unimaginable” and “shockingly intrusive” for the plaintiffs to be ordered to disclose recordings of Ms. Ibrahimova in her home.

[48] The defendants’ motion for production of the recordings is dismissed.

[49] My endorsement released on February 12, 2025 addresses the steps for the parties to take to address costs if they cannot reach an agreement.

L. Shaw

Released: February 20, 2025