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Case Summary: Jones v. I.F. Propco
Defence + Indemnity

A. An Ontario court declined to order a personal injury Plaintiff who had posted pre-accident activities on her public Facebook profile to produce her private profile, even where she planned to call witnesses to testify to the differences between her pre and post-accident activity levels.

Jones v. I.F. Propco., 2018 ONSC 23, per Leitch, J. [4270] 

I. FACTS AND ISSUES

The Plaintiff claimed $2,400,000 in damages, alleging that while on the Defendant’s premises ice fell on her head and injured her.  The Plaintiff had acknowledged that she planned to call a number of witnesses to testify as to her activities after the accident and as to how they had changed from before the accident. She had a Facebook account.  She had posted a number of posts relating to activities before the accident to the public portion of her Facebook profile. 
 
The Defendant applied for an order directing the Plaintiff to produce the private portion of her Facebook profile. It argued that the pre-accident posts on the public portion were relevant to the Plaintiff’s activities and that the Court could and should infer that the private portion would contain posts of her post-accident activities that would be relevant in the case.
 
The Plaintiff argued that posts about her pre-accident activities on the public portion of her profile were not relevant.
 
II. HELD: For the Plaintiff; application for production of Facebook profile dismissed. 

1. The Court accepted that the fact that relevant information is posted on a party’s public Facebook profile allows the Court to infer that there will be relevant information on the private portion.
 
2. However, the Court held that the party seeking production must establish that social media posts exist and that they are relevant to the litigation:

a. The Court held:

[31]    Under Rule 30.02 of the Rules, every document relevant to any matter in issue in an action that is or has been in the possession, control, or power of a party to the action shall be disclosed. The defendants must satisfy me that relevant information exists on the plaintiff’s Facebook private account that was not disclosed to the defendant (Stewart v. Kempster, 2012 ONSC 7236 (CanLII) at para. 12). “[T]here must be evidence that posted photographs are relevant in order to justify an order for production” (Knox v. Applebaum Holdings Ltd., 2013 ONSC 7895 (CanLII) at para. 18 citing Stewart)

b. The Court held that photos showing the Plaintiff undertaking activities inconsistent with her claims of disability are relevant but those that are not inconsistent are not:

‚Äč[36]    In Stewart, Heeney J. held that the photos on the plaintiff’s private Facebook page were not relevant and had no “probative value”, because they depicted the plaintiff standing, sitting, or leaning (paras. 14–15). He noted that if the photographs had shown “the plaintiff water skiing or rock climbing, they would [have been] relevant to demonstrate the extent of her physical limitations following the accident” (Stewart at para. 15). 

c. Leitch, J. held that a court can refuse to order production of Facebook posts that are of minimal probative value if production would amount to a serious invasion of privacy:

[38]    The Court can also refuse disclosure where the information is of minimal importance to the litigation but may constitute a serious invasion of privacy (Murphy at para. 19). McLachlin J. as she then was, noted the following at para. 38 of M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, which was cited by Heeney J. in Stewart at para. 22:

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 truth 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 licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.

d. The Court found that production of a party’s private Facebook profile could be a serious invasion of that party’s privacy, noting that of the approximately 1 billion Facebook users worldwide he/she had permitted only his/her Facebook friends with access to the private portion of her profile;

[40]    However, even though Heeney J. did not have to decide the issue of disclosing the Facebook photos in Stewart, because he found there was no evidence of relevance, he noted that the matter of privacy could viewed from the opposite direction as that taken by Rady J.  He noted the following at para. 24:

At present, Facebook has about one billion users. Out of those, the plaintiff in the present case has permitted only 139 people to view her private content. That means that she has excluded roughly one billion people from doing so, including the defendants. That supports, in my view, the conclusion that she has a real privacy interest in the content of her Facebook account. 

[41]    The conclusion that users have a privacy interest in the private portions of their Facebook accounts is more persuasive that the conclusion that they do not because they shared the account with a number of their Facebook “friends”. Users have the option of keeping their Facebook accounts entirely public. The plaintiff in this case did not. As noted by Heeney J., the plaintiff excluded more than one billion people from accessing her account, suggesting that she does have an interest in protecting her privacy. 

e. Further along this line of reasoning, Leitch, J. likened Facebook posts to personal letters sent to friends prior to the internet and that nobody would suggest that such private correspondence need be produced:

[43]    In Stewart, Heeney J. also denied the defendants’ requests for other Facebook data (including messages) in addition to his decision to not order disclosure of the photographs posted on the private account. Heeney J. held at para. 31 that “the defendants’ request to search the plaintiff's private correspondence and other data in [the] Facebook account in the hope that they might find something useful is … a fishing expedition and nothing more.” He also wrote the following at para. 29:

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.

f. The Court held that the pre-accident photos posted on the Plaintiff’s public profile were not relevant to the Plaintiff’s post-accident condition and therefore could not support an inference that there was material in her private profile that would be relevant. Accordingly, it was not necessary to weigh the privacy interests of the Plaintiff against their probative value.

III. COMMENTARY

With respect, the reasoning in this case evidences a serious misunderstanding of what Facebook and other social media sites are. The better view is that social media postings are not analogous to private correspondence or a private journal. The better case law recognizes that the purpose of social media is to allow users to network and share information with a number of other parties. The argument that a Facebook user only allows 100 or 200 or 500 Facebook friends access to the information, as against the 1 billion other Facebook users is facile. Also, we respectfully submit that the fact that a personal injury plaintiff may post pre-accident photographs on the public profile does not allow the Court to infer that there will be relevant posts on the private profile for two reasons. First, a plaintiff will never have any pre-accident photos that depict his/her post-accident level of ability or disability.  The point is that the posting of activity photos on the public profile logically support the inference that there will be postings of post-accident photos showing the plaintiff’s ability or disability which, of course, would be relevant.  Second, in this case the Plaintiff Jones planned to call witnesses to testify to the differences between her pre-accident condition and her post-accident abilities. With respect, the relevance of such post-accident activity photos is obvious. This case is out of step with the majority of case law on the subject and should not be followed.

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