Keeping Tabs - Spring 2022

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which can make the “ink” of an individual’s social media presence much more difficult to see. The preservation, production and privacy interests associated with social media evidence are issues that courts continue to grapple with. This article addresses two cases which deal with production of a plaintiff’s “private” social media content in the personal injury context. As these cases show, the pervasiveness of social media does not necessarily entitle a litigant to unfettered access to an individual’s social media posts, even where relevant to the legal issues in an action. In Merpaw v Hyde, 2015 ONSC 1053, the plaintiff claimed that she was incapacitated from any employment, including sedentary, and suffered from reduced enjoyment of life, depression and chronic fatigue as a result of a back injury she suffered after a trip and fall. On a discovery motion, the defendant sought, amongst other items, access to the plaintiff’s private Facebook page. Facebook was the only social media platform the plaintiff used, and there were ten photographs on her public page. She was in six of the ten photographs and, in each, was standing with her cane or sitting. In her decision, Justice LeRoy first noted that the Court can refuse disclosure when the information is of little importance to the litigation and disclosure may constitute a serious invasion of privacy. As there were pictures and communications on the plaintiff’s public page that were relevant to the action, it was reasonable to infer there was relevant information contained in the private forum; this raised the enquiry to more than mere fishing, meeting the defendant’s burden to establish the relevancy of the documents sought beyond mere specu- 14
lation. However, there was no reason to expect the private page to contain information that was inconsistent with her public page and other evidence in the action. As such, the plaintiff was not required to produce the content of the private section of her Facebook. More recently, in Smith v Jarnell, 2020 ONSC 6433, the plaintiff sustained injuries after a motor vehicle accident, claiming loss of earning potential and an inability to participate in household, recreational, social and athletic activities to the extent he had participated before the accident.The defendant sought production of all posts and photos from the plaintiff’s social media accounts that showed him participating in activities or going on trips since the accident. Relying on Regional Senior Justice Heeney’s decision in Stewart v. Kempster, 2012 ONSC 7236, the Court reiterated that “[t]he onus is on the moving party to establish that the plaintiff’s social media accounts have relevant information. The simple existence of a social media account like Facebook does not meet the test of relevance.” During the hearing, counsel attempted to demonstrate that the plaintiff’s social media account had relevant information in two ways: first, through a review of the plaintiff’s questions about his social media on his examination for discovery and, second, through the real-time sharing of the plaintiff’s public Facebook account. With respect to the first method, although the plaintiff had preserved his Facebook, Instagram and Snapchat accounts as requested, he indicated he did not post very often. He was not asked on discovery whether any of the postings would be of activity relevant to limitations he alleges he has experienced since the accident or any of his complaints in this action. The discovery evidence was therefore insufficient to establish the plaintiff’s social media pages bore any relevance. Master Jolley held that the second method of screen-sharing the plaintiff’s public Facebook page was not evidence; the contents of the account were not in the motion record or attached to any affidavit. As it was not in evidence, the content of the plaintiff’s public social media account could not be relied upon to establish the relevance of his private account. As such, Master Jolley concluded that there was no evidentiary basis to conclude that any relevant documents existed on the plaintiff’s social media platforms to justify an order for production and this portion of the motion was dismissed. As social media becomes more pervasive in our daily lives, it will inevitably continue to raise interesting evidentiary questions that may warrant a re-watch of The Social Network. Consider it CPD! Interested in learning more about social media evidence and digital evidence generally? Check out our Digital Evidence for Litigators program from March <strong>2022</strong>, available for purchase as an archived webcast. 15
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Page 3 and 4: CONTENTS 04 06 09 13 16 18 Chair Ch
Page 5 and 6: Now Live! Friends Who Argue - A new
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Page 16 and 17: The Charter of Rights and Freedoms
Page 18 and 19: INTERVIEW Interview with Natalia Va
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Keeping Tabs - Spring 2022

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