On December 2nd, the New Brunswick Court of Queen’s bench ordered a plaintiff in a disability insurance claim to obtain “a history of her computer account use” from her ISP and “request” that her ISP generate a record accounting for her FaceBook use. These orders are becoming very common, but I will make a few notes:
- The tactic of seeking information through the plaintiff but held by a third-party is unique. The order seems bound to lead to delay and frustration (see here for an example) but at least is backed by the plaintiff’s right of access to personal information in PIPEDA. Perhaps the defendant didn’t like its chances of obtaining an order for forensic inspection of a home computer.
- Ferguson J. does a nice review of the applicable principles, and reminds us that the Supreme Court of Canada has endorsed necessity as a principle for dealing with production disputes over highly sensitive information by including this quote from A.M. v. Ryan: “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 truly 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 license to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.”
- Ferguson J. does not, however, apply this filter in the circumstances, because he finds that the type of information subject to the order (mere usage data) is not part of the plaintiff’s “biographical core” of personal information. The biographical core concept, from the Supreme Court of Canada’s R. v. Plant decision, is a concept that restricts certain information from court protection.