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.