Case Report – Court denies ex parte motion to preserve Facebook

On October 29th, Price J. of the Ontario Superior Court of justice denied a motion for an ex parte order for preservation of a plaintiff’s Facebook.

The motion was brought by a defendant to a personal injury claim. It brought its motion ex parte on the basis that the plaintiff would be likely to destroy evidence if notified. It therefore had to meet the three-part test from R.J.R.-MacDonald in order to receive interim relief pending a return to court to deal with the matter of production. The Defendant brought its motion on the strength of several photos it had obtained from non-password protected Facebook pages. These showed the plaintiff  after the date of the accident doing things that were arguably consistent with her claim for damages in respect of a significantly curtailed lifestyle – i.e. the pictures showed her sitting and reclining on a floor. Neither these photographs nor any other records from the plaintiff’s Facebook were disclosed in her Affidavit of Documents.

The Court held that the defendant had not adduced any evidence that allowed it to conclude that the plaintiff’s Facebook was likely to contain relevant information and that it would not infer from the nature of the Facebook service that the plaintiff’s Facebook was likely to contain such information. On the inference, Price 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 nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintff’s account in the present case do not appear, on their face, to be relevant.

Price J. did grant leave to cross-examine the plaintiff on her Affidavit of Documents. He forgave the defendant for not doing so at the plaintiff’s examination for discovery “because Facebook is a relatively recent phenomenon” but specified that the defendant would pay the costs of the examination should it prove fruitless.

Finally, in addressing the balance of convenience, Price J. made the following statement about the balance of convenience:

The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends.” She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.

The concept (reflected in this paragraph) that an expectation of privacy can be maintained despite a limited disclosure of information is supported by privacy advocates, but is not often accepted by courts.

Schuster v. Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971 (S.C.J.).

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