Case Report – Court infers that Facebook pages include relevant information about lifestyle

26 Feb

On February 20th, the Ontario Superior Court of Justice granted leave to cross-examine a plaintiff in a motor vehicle accident suit about the nature of content he posted on his Facebook profile.

If defence of a claim for compensatory damages for loss of enjoyment of life, the defendant sought production of all content in the plaintiff’s Facebook. It did not examine the plaintiff on whether he had any photographs revealing of his post-accident lifestyle in oral discoveries, but learned of his Facebook’s existence after discovery and developed a theory that it would contain such photos.

Master Dash held that the existence of the plaintiff’s Facebook was not reason to believe it contained relevant evidence about his lifestyle. He distinguished the Court’s decision in Murphy v. Perger by noting the plaintiff in Murphy had produced publicly-available photos from her Facebook, therefore creating a reasonable suspicion that the private part of her Facebook contained additional relevant photos. Master Dash said the defendant, without any such evidence, was just fishing.

The appeal judge disagreed, stating:

With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.

Based on this inference, the appeal judge also said that a party should ordinarily be granted a right to cross-examine on an affidavit of documents where it does not have a right of discovery (as in Simplified Rules actions) and when a plaintiff who makes a claim that puts his or her lifestyle in issue produces “few or no documents” from his or her Facebook.

Leduc v. Roman, 2009 CanLII 6838 (ON S.C.).

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5 Responses to “Case Report – Court infers that Facebook pages include relevant information about lifestyle”

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  1. Case Report - Motion for listing of Facebook records dismissed « All About Information - April 23, 2009

    […] rejected the defendant’s claim that the February 2009 decision in Leduc v. Roman (summarized here) brought about a “substantial change” which justified leave to conduct pre-trial […]

  2. Social Sites Subpoenaed | The Confidential Resource - May 27, 2009

    […] entire Facebook page as happened in KOURTESIS V. JORIS (2007).  Another Canadian case is Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.) (QL). These cases are becoming more common and of greater […]

  3. Case Report – Court orders plaintiff to list relevant documents contained in Facebook site « All About Information - July 20, 2009

    […] After hearing a motion in this motor vehicle accident claim, Boswell J. ordered the plaintiff to include relevant documents from his Facebook account in a further and better affidavit of documents, granted the defendant leave to cross-examine the plaintiff on the affidavit and ordered the plaintiff to preserve all information in his Facebook account for the duration of litigation. He followed the Court’s now well-known decision in Leduc v. Roman. […]

  4. Case Report – Court denies ex parte order to preserve Facebook « All About Information - November 4, 2009

    […] J.’s decision ought to be viewed to be in conflict with the Court’s prior decisions in Leduc v. Roman and Wice v. Dominion General Insurance Company of Canada. Price J. says: I do not regard the mere […]

  5. Turn in the tide on Facebook photos as evidence? « All About Information - January 13, 2013

    […] believe we’re seeing a slow retreat from the view expressed in Leduc v Roman, a 2009 Ontario case in which Justice Brown suggested photos on Facebook are presumptively relevant […]

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