Ontario Superior Court rules on social media disclosure request in a personal injury case

In a personal injury lawsuit, the Ontario Superior Court of Justice has ruled on a request to disclose the contents of the plaintiff's social media accounts.

In Mohamud v. Juskey, 2023 ONSC 4414, Haweya Mohamud alleged that Christopher Juskey lost control of his vehicle on a wet road in Richmond Hill, colliding with Mohamud's vehicle. As a result of the accident, Mohamud suffered injuries, including a concussion, whiplash, other soft tissue injuries, chronic pain, and psychological injuries.

Mohamud sued Juskey and the vehicle owner for damages of $1.3 million. The defendants asked the Ontario Superior Court of Justice to order the plaintiff, Mohamud, to disclose digital copies of her Facebook and Instagram accounts. They claimed that those accounts would provide evidence, in the form of photographs, displaying the plaintiff engaging in various activities after the accident. The defendants said that such pictures are relevant to assessing the plaintiff's claim for damages for specific injuries she claimed she suffered in the motor vehicle accident.

Mohamud resisted production, claiming that there was minimal probative value to the contents of her social media accounts. She also alleged that disclosing the contents of her Facebook and Instagram accounts would lead to substantial prejudice in the form of a significant intrusion on her privacy.

Relevance assessment

The court noted that the Rules of Civil Procedure require parties to a civil action to disclose all relevant and material documents in their possession, control or power. The court explained that relevance has a very low threshold. Evidence is relevant if, as a matter of logic and human experience, it renders a fact in an issue more or less likely than it would be without the evidence.

While the relevance assessment is relatively straightforward, the court noted that assessing a privacy claim in the context of disclosure in a civil proceeding is more complex. The court observed that Ontario civil law appeared to lack a recognized legal framework against which to analyze assertions of privacy in the context of a disclosure application other than in those circumstances in which a party resisting disclosure may have a sustainable claim to privilege. The court noted no assertion of privilege in this instance concerning the contents of the plaintiff's social media accounts.

Prejudice includes intrusions into privacy

The Rules of Civil Procedure direct the court to decide whether a party must produce a document and whether requiring her to do so would cause her undue prejudice. The court said "prejudice" in this context includes intrusions into a party's privacy.

In the court's view, if a party to a civil action resists disclosure on privacy grounds, the court must engage in a balancing of the probative value of the records sought against the prejudice that will inure to the party resisting disclosure or to the litigation process, should the production be compelled.

The defendants contended that the pleadings had placed the plaintiff's functionality, enjoyment of life, and ability to work on the issue. The court agreed with this observation. The court noted that the defendants had obtained several photographs from the public profile of the plaintiff's Facebook account. In at least one photograph, the court observed that the plaintiff was on a beach, apparently on a holiday. That photograph demonstrates the plaintiff's ability to travel and enjoy life. In this sense, the court found the pictures relevant to one or more issues raised by the pleadings.

Moreover, the court agreed with the defendants that it was a reasonable inference that the private areas of the plaintiff's Facebook and Instagram accounts would contain content similar to that shared in the public areas of those applications. Consequently, the court was satisfied that the plaintiff's Facebook and Instagram accounts likely included post-accident photographs of the plaintiff engaging in activities relevant to the issues in the proceedings.

However, the court was not satisfied that the entire contents of the plaintiff's social media accounts were relevant. The court said it was overreaching to ask for a blanket order that entitles the defendants to sift through the entire contents of the Facebook and Instagram accounts of the plaintiff.

Considering that the court had not seen any of the photographs in issue, it could not decide the relevance of any of the contents of the plaintiff's social media accounts. As a result, the court ultimately ordered the plaintiff to produce an affidavit listing all of the photographs in her possession, control or power, including those posted on social media accounts, relevant to the live issues in the proceedings.