Disclosure of
Facebook
information The ‘relevance’ of a personal injury plaintiff’s Facebook page
Whether the contents of a per-
sonal injury plaintiff’s Facebook
page must be disclosed in an affi-
davit of documents is a
contentious issue that has
yet to be conclusively
decided by the Ontario
courts in accordance with
the new higher disclosure
standard of ‘relevance.’
Under the old Rules of
Civil Procedure, docu-
ments that were “relating
to” matters in issue were to
be disclosed. To make that
determination the court
applied a “semblance of rel-
evance” test.
Because of this low relevance
standard, the Ontario courts
were generally inclined to order
Facebook production requests
under the old Rules whenever
defence counsel laid the founda-
tion for such a request. Prac-
tically speaking, laying a founda-
tion for a Facebook production
request was not difficult in the
least given that most personal
injury statements of claim allege
broad accident-related impacts,
such as like loss of enjoyment of
life and an inability to par-
ticipate in normal recrea-
tional, household and
occupational activities.
Accordingly, defence
counsel could set the foun-
dation for a Facebook pro-
duction request by simply
confirming the claimant’s
use of Facebook and get-
ting some sense of the pur-
pose for which it was being
used by the claimant.
However, changes were made
to the Rules of Civil Procedure
close to two years ago (effective
January 1, 2010). The changes
were made after consideration
was given to the Civil Justice
Reform Project and specifically
DARCY
MERKUR
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the comments by the Honourable
Justice Coulter Osborne. Justice
Osborne had commented that
the “semblance of relevance” test
for discovery and production was
much broader and looser than
the relevancy test at trial and that
the application of the lower test
had led to “trial by avalanche” in
an effort to avoid “trial by
ambush.”
Justice Osborne therefore sug-
gested a stricter test of “rel-
evance” for discovery purposes.
That recommendation was
adopted in new Rule 30.02(1)
which raises the disclosure stan-
dard to documents that are “rel-
evant to” any matter in issue. As
well, other new Rules have been
added to focus the litigation and
make it more efficient, such as
the introduction of the principle
of proportionality in discovery
and a seven hour time limit for
discovery by a party.
In the litigation context, Facebook acts as a form of online ‘
self-surveillance.’ Facebook is a living
repository website that replaces
what used to be known as letters,
emails, postcards, school yearbooks, photo albums and home
videos, while at the same time
keeping an ongoing log of one’s
entire life activities. Notably the
Facebook page of an active Facebook user could easily list more
than a thousand ‘friends’ and
could contain hundreds of
photos, dozens of videos and
thousands of status updates, wall
posts and other communications.
Obviously in the context of a
personal injury claim, one’s daily
life activities are typically front
and centre in the litigation, but
this reality should not lead to the
conclusion that every photograph
and video taken of the plaintiff is
producible in the litigation.
“[M]ost plaintiff’s personal injury lawyers advise
personal injury clients at the outset that they
should either stop using Facebook altogether or at
least work on the assumption that everything that
gets posted will eventually have to be produced to
defence counsel.
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requests, most plaintiff’s personal injury lawyers advise personal injury clients at the outset
that they should either stop
using Facebook altogether or at
least work on the assumption
that everything that gets posted
will eventually have to be produced to defence counsel. Clients are also asked to revise
their privacy settings to prevent
access by the public.
However, since many personal
injury accident victims rely on
social networking services, like
ducting self-surveillance for the
defendant who may already have
them under actual surveillance. n
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Darcy Merkur is a partner at
Thomson, Rogers in Toronto
practising plaintiff’s personal
injury litigation, including
plaintiff’s motor vehicle litigation. He has been certified as a
specialist in Civil Litigation by
the Law Society of Upper
Canada and is the creator of the
Ontario Personal Injury Damages Calculator.
