I. Background: The Times They Are A-Changin’
“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), 114 O.R. (3d) 151, para 29
[35] In that regard I feel the present case is closer to that addressed by my colleague Master L.S. Abrams in Papamichalopoulos v. Greenwood, 2018 ONSC 2743 (CanLII). There in April of this year she found:
[9] With there being no reference to social media pages in the plaintiffs affidavit of documents and with plaintiff’s counsel having refused, at discovery, to review social media pages for relevant content, the defendant’s investigator searched for and reproduced social media pages for the plaintiff and his wife. Photographs of the plaintiff that were publicly posted and retrieved include photographs of the plaintiff riding a jet-ski, bending over at pronounced angles while lifting his spouse, driving, and holding up his then 2-year old son-all without any visible signs of discomfort. These photographs depict a physically strong and active plaintiff and, as such, are relevant and open up line(s) of inquiry.
[10] Given the nature of the plaintiff’s allegations (the severity of the injuries he says he suffered and their alleged permanence) and the depictions set out in the photos found ( depictions which, on their face, appear to be at odds with the plaintiffs allegations), photographs of the plaintiff, both before and after the trauma that he alleges having suffered, are relevant. Photographs taken after the alleged incident are relevant to the effect (and its evolution) of the injuries on the plaintiff’s enjoyment of life; and photographs taken before are relevant for comparison (see: Morabito v. Dilorenzo ; 2011 ONSC 7379(CanLII), at para. 5).
[11] “Where, [as here], in addition to a publicly-accessible profile, a party maintains a private Facebook profile … .it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile. A court then can order the production of relevant postings on the private profile” (Leduc v. Roman, 2009 CanLII 6838 (ON SC), 2009 CarswellOnt 843, at para. 30).
[36] I am satisfied that in the present technological environment there is a need to include Facebook and similar on line data relevant to matters in issue in personal injury litigation in the appropriate schedules of each party’s Affidavit of Documents.
[41] Taking into account all the circumstances of this case I am satisfied that an approach similar to that used for motions seeking defence medicals after the case has been set down, is appropriate. Defence medicals are not part of the formal discovery process. They are a separate process with specific considerations. Rule 48.04 therefore does not act as a bar to a request for a defence medical after the proceeding has been. Here given the failure to include in her affidavit of documents to any reference to on line data that the plaintiff has not asserted does not exist; I am satisfied that in this case it would be manifestly unjust to deny access to the sources sought. If they are nonexistent then there will be no content that could harm the plaintiff’s case. However if there is photographic evidence that may potentially undermine the Plaintiff’s claim, there will be an opportunity to provide an explanation at trial.
VI. Disposition
[42] The Defendant’s motion sought:
“An Order compelling the Plaintiff Maya lsacov to produce to the Defendant copies of all of her social media pages, including Facebook and Instagram, for 3 years pre-accident to present.”
[43] There was no evidence of any accounts other than Facebook and Instagram being potentially in existence. This close to trial I am limiting production to electronic or paper copies of photographs on any of the plaintiff’s Facebook and Instagram accounts.
[44] As the plaintiff has been aware of this motion for some time I see no reason why production should not be made within ten days and so order.
[45] The failure to seek such documentation until this stage of the proceeding, has added expenses to both sides that could have been avoided if appropriate questions were asked at the discovery of the plaintiff or prior to the mediation.
[46] I feel as a consequence it would be appropriate to make no order as to costs on this motion.
