ALFRED W.F. CHENG, FOR THE DEFENDANTS

[1]          The only issue remaining on this motion is whether the plaintiff should be compelled to produce pictures of herself engaged in activities as documented on her Facebook account.

[2]          The plaintiff was involved in a motor vehicle accident on August 6, 2007.  She alleges that she sustained serious personal injuries as a result.  In her statement of claim she alleges serious permanent impairment of importance physical, mental and psychological functions caused by the injuries.  It is further alleged that the injuries have permanently impaired her enjoyment of life among, other things. 

[3]          On discoveries the plaintiff confirmed using Facebook and posting pictures of herself to it.  She answered she did not know what the pictures would show other than trips.  She stated she did not know “off hand” if the pictures would show her engaged in any activities subsequent to the accident.  The plaintiff further testified on her discoveries that her activities were affected by her injuries.  She gave examples that she no longer golfs; and does not stay on the computer as long as she used to; has difficulty opening jars, door knobs and lifting. 

[4]          The defence argues it is entitled to the pictures of the plaintiff as being relevant and probative. It argues, quite correctly, that the test for production at discoveries is to show a semblance of relevancy. It urges that has been done as the plaintiff is unsure if the pictures will show her engaged in activities which she has sworn are affected by her injuries. 

[5]          The plaintiff argues that the onus is on the defence to show that there are pictures on the Facebook account that are relevant and no such evidence has been led to that effect.  She further argues she is entitled to a degree of privacy regarding facebook that outweighs any probative value. 

[6]          The law appears far from clear on the admissibility of postings found in the “private” section of a litigant’s facebook account.  The basic rule is that of relevancy to any matter in issue, Rule 31.06(1).

[7]          The court shall also consider the requirement of proportionality before ordering a document to be produced, Rule 29.2.

[8]          The plaintiff relies on Schuster v Royal and Sun Alliance Insurance, [2009] O.J. No. 4518 which was an ex parte motion for injunctive relief by the defendant to preserve documents on the plaintiff’s Facebook webpage.  The plaintiff claimed injuries, as here, which compromised her ability to work and participate in social and recreational activities. 

[9]          Price J. dismissed the motion because the defence was seeking her password and user name which the learned judge felt went well beyond the scope of Rule 30. The court further ruled there was no evidence produced by the defence that Facebook contained any relevant information.  The court did indicate that under Rule 30.03 the plaintiff was obligated to list in her Affidavit of Documents relevant documents from Facebook.  I have no information as to the contents of the plaintiff’s Affidavit of Documents in this case. 

[10]      In Leduc v. Roman, 2009 CanLII 6838 (ON SC), [2009] O.J. No. 681 Brown J. agreed the defendant bore the onus of demonstrating “that this Plaintiff has relevant materials on his Facebook website”.  The mere existence of a Facebook account was sufficient in that case to infer that the plaintiff’s social networking site likely contained content relevant to show how he had led his life since the accident. 

[11]      In Murphy v. Perger, [2007] O.J. No. 5511 Rady J. concluded that if the publicly-accessible profile on Facebook shows relevant material then it is likely that the private Facebook profile would do likewise and would be evidence to show relevancy.  There is no such evidence here on this plaintiff’s publicly-accessible profile.

[12]      In Parsniak v. Pendanather, [2010] ONCS 4111, a case relied on by the defence, the plaintiff advanced a claim for damages from a motor vehicle accident of 2006, emotional trauma and loss of enjoyment of life, as in the case at bar.  At her discovery the plaintiff acknowledged having photographs of herself before and after on her webpage. The learned judge followed Leduc, supra, where it was held that the “trial fairness” required the plaintiff to preserve and print posted material and deliver a supplementary Affidavit of Documents and submit to further cross-examination if requested. 

[13]      Gordon J. concluded that photographs from three years before the accident to the present with identification as to date, if possible, was a reasonable request. The learned judge stated at para. 19: 

[14]      Gordon J. distinguished Schuster, supra. quite correctly in my view, as an ex parte motion for an injunction to prevent the plaintiff from deleting from her Facebook an appropriate request and ordered production as to do otherwise “…infringes on trial fairness and ignores consideration of best evidence principles”. 

[15]      I agree with the analysis in Parsniak¸ supra and Leduc, supra that where the plaintiff puts her social enjoyment of life in issue and alleges various activities that she is unable to do then photographs of her social life and activities, before and after the alleged trauma, which she concedes are on her Facebook account, are produceable as having some semblance of relevance and should be part of her Affidavit of Documents.  Whether they are ultimately produceable at trial will be a determination made by the trial judge.

[16]      The plaintiff argues that privacy concerns should be sufficient to prevent production. I disagree. The plaintiff has put her social life in issue as well as her ability to do certain activities being negatively affected by her injuries from the accident. These issues because of this law suit are therefore now part of the public domain. She has also posted photographs of herself, before and after the accident, on her Facebook account to others-how many is not known and is not really relevant since it was clearly more than one. Under these circumstances the privacy argument has little weight.

[17]      The plaintiff will preserve and print, at the expense of the defendant, photographs of her involved in activities and social events from August 1, 2004 to date, with dates where possible.  She will provide same by way of a supplementary Affidavit of Documents within 45 days of the date of release of this decision. 

[18]      Counsel agreed costs should be in the $1,000.00 range and follow the cause.  Costs to the defendant payable by the plaintiff fixed at $1,000.00 inclusive of taxes.