No disclosure of information from Facebook in Ontario case

On December 21, the Ontario Superior Court of Justice dismissed a motion for production of all content on the private portion of a plaintiff’s Facebook account.

The plaintiff alleges she sustained permanent impairment as a result of motor vehicle accident that lessened her ability to participate in recreational, social, household and employment activities and caused a loss of enjoyment of life. The evidence on the defendant’s motion for production indicated the plaintiff had 139 Facebook friends and had made postings on her (publicly-available) timeline stating that she was feeling better and that “Life is good!” Notably, in response to the motion the plaintiff filed evidence that described the content of the private portion of her Facebook account, attached pictures (under seal) and reconciled the images in the pictures (of her standing, sitting and leaning) with her claim.

Regional Senior Justice Heeney held that the photographs he reviewed were not relevant:

I am not persuaded that the photographs in question have any real relevance to the issues in this case. I quite agree that if there were photographs that showed the plaintiff water skiing or rock climbing, they would be relevant to demonstrate the extent of her physical limitations following the accident. The photographs in question, though, say nothing about the physical limitations that she has testified she is suffering from. An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.

Justice Heeney made clear that he was not endorsing the withholding of any otherwise producible information based on a privacy claim, though it is clear that he had particular concerns about the invasive nature of the defendant’s production request. In particular, Justice Heeney suggested that a production request for an individual’s entire Facebook account is highly problematic:

Before the dawn of the internet age, people often communicated by writing personal letters to each other. It could be said that such letters served to keep friends and family connected, and provided a medium in which people would share information with each other about what matters to them. They might even discuss the state of their health, if they happened to have suffered a traumatic event such as a motor vehicle accident in the recent past. However, it is unimaginable that a defendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some information contained therein relevant to the plaintiff’s claim for non-pecuniary damages. The shocking intrusiveness of such a request is obvious. The defendants’ demand for disclosure of the entire contents of the plaintiff’s Facebook account is the digital equivalent of doing so.

Stewart v Kempster, 2012 ONSC 7236 (CanLII).