IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120427

Docket: 10 4336

Registry:
Victoria

Between:

Tamara Fric

Plaintiff

And:

Tracy Gershman and
Stuart Myles Gershman

Defendants

Before:
Master Bouck

Reasons for Judgment

The Application

[1]            
In a notice of application filed February 9, 2012, the defendants ask
for the following order:

1.  The Plaintiff to produce and deliver to
the solicitor for the Defendants a complete copy of the Plaintiffs Facebook
profile website, including all photographs and information relating to those
photographs such as the dates on which each photograph was added and all
comments related to the photographs, posted from November 18, 2008 to the
present time, within 14 days of the date of this order;

2.  The Plaintiff to produce and deliver to
the solicitor for the Defendants copies of all photographs in her possession or
control, taken on vacation or otherwise, in which she is featured, from
November 18, 2008 to the present time, within 14 days of the date of this
order;

3.  The Plaintiff to produce and deliver to
the solicitor for the Defendants the metadata associated with any digital
photographs in her possession or control, taken since November I8, 2008 to the
present time, in which she is featured, within 14 days of the date of this
order. And

4.  The Plaintiff
to pay the Defendants’ costs of this application in any event of the cause.

[2]            
The plaintiff resists all aspects of the order sought.

The Facts

[3]            
The plaintiff is a recent law school graduate, presently articling with
a firm in Calgary, Alberta.

[4]            
Ms. Fric is claiming for damages resulting from injuries suffered in a
motor vehicle accident on November 18, 2008. At the time of the accident, Ms. Fric
was a first year law student at the University of Victoria.

[5]            
The action is scheduled to proceed to trial in May 2013.

[6]            
The defendants’ notice of application sets out a number of the facts
relevant to this application. For the sake of economy, those facts are repeated
— with some minor editing — here:

6.  The Notice of Civil Claim alleges that
the Plaintiffs vehicle was rear-ended by the Defendants’ vehicle, which caused
her injuries including chronic severe headaches, injury and pain to the upper
back, and neck pain.

7.  The Notice of Civil Claim alleges that
the Plaintiff has suffered loss and damage, including pain and suffering, loss
of the amenities of life, past and future loss of earning capacity and
opportunity and past loss of income, loss of educational advancement, past and
future loss of domestic maintenance capacity, and loss of mobility.

8.  At her Examination for Discovery on
October 31, 2011, the Plaintiff testified that she has been in
"substantially the same" pain since, and due to, the Accident, which
has limited her academically, socially, physically, and her employability.

9.  The Plaintiff testified at the
Examination for Discovery that:

a.  she suffered
headaches, neck pains, back pain and rib pain, in the Accident, which continued
"’substantially the same" to the date of the Examination for
Discovery;

b.  her injuries
have impacted her ability to study and perform academically, which in turn
[subjectively] impacted her ability to obtain an articling position;

c.  she is very
concerned that her injuries impact her performance at work, and therefore her
ability to keep her job [by not working “long enough hours”];

d.  in December
2008 she participated in a social and sports tournament with her law school
colleagues ("Law Games"’), but her participation was limited due to
her injuries;

e.  she has a
Facebook website which she uses and maintains since before the Accident, and
that she posts photographs to Facebook, such as those of her participation in
Law Games; and

f.  she has
traveled a lot, with family and friends, since the Accident, and she generally
has a camera with her when she travels. Trips to Thailand, Fiji, Australia,
Montana, Florida, California, Seattle, Portland, and Cuba were mentioned
specifically.

10.  The Plaintiff’s Facebook website shares
only some information publicly, which does not include any photographs or other
content.

11.  On November
9, 2011, by written demand under rule 7-1(11), the Defendants required that the
Plaintiff list and produce photographs and Facebook documents, but the
Plaintiff has failed to respond except verbally to indicate an objection to the
Defendants’ demand.

[7]            
The plaintiff also testified that she is a “social
person” and some social activities were limited in the year following the
accident because of her injuries.

[8]            
The plaintiff has some 890 Facebook “friends” who do have access to the
private content of the Facebook profile. The Facebook network is used by the
plaintiff for both personal and professional interactions.

[9]            
As of February 2012, Ms. Fric’s Facebook profile stored 759 digital
photographs and one video. The plaintiff has not disclosed the precise nature
or subject matter of the Facebook photographs or video.

[10]        
In addition, Ms. Fric is in possession of approximately 12,000
photographs. It is not clear on the evidence whether those photographs are
stored electronically or in an old-fashioned album.

[11]        
The plaintiff has not been totally disabled from work or study since the
accident. Currently, Ms. Fric complains of chronic severe headaches and
soft-tissue injuries. Fatigue is a symptom of the injuries.

[12]        
Ms. Fric has continued to engage in sports and other physical
activities since the accident, including hiking, scuba diving and wakeboarding
albeit with some pain or discomfort. Some of the activities have been limited
or modified. For example, Ms. Fric asks others to carry her backpack on
hikes; the scuba diving oxygen tanks are secured in the water rather than on
land.

The Parties’ Positions

[13]        
The defendants submit that the Facebook profile and various photographs are
relevant to the plaintiff’s claim for both ongoing physical impairment and also
the plea of loss of amenities of life. Photographs taken of the plaintiff at
the Law Games might reveal a level of activity belying Ms. Fric’s complaints of
pain, discomfort and social withdrawal immediately following the accident.
Photographs from the vacations might also disclose a level of physical activity
belying the limiting or modification of these activities.

[14]        
Further, by refusing to disclose the precise nature of individual
photographs and written content on the Facebook profile, the plaintiff compels
the defence to ask for all of the digital material on that site. The request
for the metadata will ensure that the defendants can identify the date and time
of the photographs.

[15]        
The plaintiff says that the defence’s request for disclosure is overly
broad and not substantiated by the evidence. The plaintiff has continued to
function at school, work and socially, albeit with pain and fatigue. None of
the photographs will assist the defence in refuting the plaintiff’s claim of
pain as this complaint is entirely subjective. The plaintiff says that the photographs
will only reveal snapshots in time and without a proper context.

[16]        
Moreover, the plaintiff’s right to privacy (and those of others who may
be included in the photographs or connected with the Facebook profile)
outweighs the probative value of the information sought.

The Law

[17]        
This application requires an analysis of two main issues:

a.  the type of document or
evidence that might be material and relevant to the plaintiff’s claim; and

b.  whether the plaintiff’s right
to privacy might override disclosure obligations.

[18]        
The parties referred to several B.C. decisions which address the
competing interests of privacy and disclosure in the context of paper medical
records and non-digital photographs.

[19]        
However, many of these decisions pre-date the introduction of the Supreme
Court Civil Rules (“SCCR”). It may be that Rule 7-1 of the SCCR introduces
some different considerations to these issues.

[20]        
In addition, the defendants rely on the law as it had developed in
Ontario with respect to production of social media content. Some of those
authorities will also be discussed below.

A.  Disclosure of Personal
Photographs and Video

[21]        
In the following cases, the court ordered the plaintiff to disclose
photographs and video recordings of travels, participation in social events and
performance of physical activities:

Tupper v.
Holding, 2003 BCSC 153;

– the vacation
photographs show the plaintiff “enjoying life” and may “assist the defendant in
its defence that her ability to enjoy life is not what it was before the
accidents”.

Mikulik v.
Huang and Cheung, 2008 BCSC 967;

– photographs
taken of the plaintiff on vacation at a time when he was allegedly disabled
from “carrying out normal work duties” were deemed to have a “significant
likelihood of probative value”. The court ordered that facial features of
others appearing in the photographs could be deleted before production.

Tayelor v.
Truong, (November 10, 2009 Vancouver Registry No. M031966);

– the plaintiff
claimed to be “mostly housebound” with “a marked decrease in her overall
activities”. Photographs and videos of vacations to various destinations and
participation in a bachelorette party, bridal shower and wedding were ordered
produced.

Hawboldt v.
Ovens, 2010 BCSC 1061;

– “photographs which disclose a level of
physical activity at a time when the plaintiff claims to be unable to work or
perform certain physical tasks might well be relevant”.

[22]        
An order for production of photographs of the plaintiff’s wedding and
honeymoon was declined in Watt v. Meier, 2005 BCSC 1834:

… where the only injuries
pleaded are cognitive difficulties and so on resulting from a brain injury,
[the court] simply cannot think of any reason why the photographs may be relevant.

[23]        
In Gasior v. Bayes, 2005 BCSC 1828, the court declined to order
production of photographs finding that:

… The production of photographs
taken on a personal basis is … far more invasive than probative …

And
further:

… [the photographs] sought to
be produced are … snapshots in time and accordingly are taken at best out of
context.

[24]        
The reasons in Gasior v. Bayes do not describe the nature
of the plaintiff’s injuries, but the information sought seems to relate to the
plaintiff’s “enjoyment of life” (or alleged loss thereof). Tupper v. Holding
is distinguished on the basis that the learned Master “had not been
referred to any case authority by counsel.”

[25]        
In Desgagne v. Yuen, 2006 BCSC 955, Myers J. observed:

[49]     This is
not a case where the plaintiff seeks damages arising out of an inability to
undergo physical activity and the defendants suspect that the plaintiff may
have been engaging in vigorous physical activity on vacation.  Rather, the
plaintiff’s predominant injury is cognitive, and the loss of enjoyment of life
stems largely from that aspect of her injury.  I do not see, nor have the
defendants shown, how photographs of the plaintiff on vacation, or with her
friends and family, may shed any light on these cognitive abilities.  In my
opinion, the vacation photographs (and other photographs relating to the
plaintiff’s family, friends and hobbies) sought have limited – if any –
probative value on this matter.  Production of these photographs, however, is
invasive of the plaintiff’s personal life, because the photographs are largely
of moments spent with her family and friends.  The limited probative value
considered against the invasiveness of production leads me to conclude that
production of the photographs should not be ordered.

[26]        
These conflicting decisions can be reconciled. As discussed in Desgagne
v. Yuen, the court draws a distinction between personal photographs that
might assist the defence in refuting the plaintiff’s claim to physical as
opposed to cognitive impairment. When physical impairment is alleged,
the relevancy of photographs showing the plaintiff engaged in activities that
require some physical effort seems rather clear.

[27]        
In at least one case decided before the introduction of the SCCR,
the plaintiff either publicly disclosed or voluntarily produced photographs
from her Facebook profile which depicted a certain level of physical activity: Cikojevic
v. Timm, 2008 BCSC 74.

B. Production of Metadata

[28]        
In addition to Desgagne v. Yuen, the following decisions address
the production of metadata: Park v. Mullin, 2005 BCSC 1813; Bishop v.
Minichiello, 2009 BCSC 358 (leave to appeal denied: 2009 BCCA 555); Dosanjh
v. Leblanc and St. Paul’s Hospital, 2011 BCSC 1660; and Abougoush v.
Sauve, 2011 BCSC 885.

[29]        
The production of the metadata was ordered in Bishop v. Minichiello
but limited to information showing the plaintiff’s “usage” of the Facebook
web-site. The usage was deemed relevant to the complaints of a debilitating
fatigue due to accident-related injuries. It was alleged by the defence that
the plaintiff’s fatigue was the result of excessive evening Facebook use.

[30]        
In Abougoush v. Sauve, a decision rendered under the SCCR,
the court found that the metadata in a digital camera (showing the date and
time of a photograph) is “relevant to a matter in issue in this lawsuit because
they may provide information from which the camera user’s tolerance for
physical activity from day to day or over several days may be inferred.”: para.
11. The court ordered production of metadata “associated with” the photographic
record of the plaintiff’s vacations.

[31]        
In the remaining cases, the court determined that the plaintiff’s
privacy rights trumped any probative value of the information contained in the
metadata.

C. Document Disclosure Under
the SCCR

[32]        
The defendants rely on Rules 7-1(1) and 7-1(14) of the SCCR. Those
and other applicable Rules provide as follows:

7-1 (1)  Unless all parties of record consent or the
court otherwise orders, each party of record to an action must, within 35 days
after the end of the pleading period,

(a) prepare a list of
documents in Form 22 that lists

(i)  all documents that are or
have been in the party’s possession or control and that could, if available, be
used by any party of record at trial to prove or disprove a material fact, and

(ii)  all other documents to
which the party intends to refer at trial, and

(b) serve the list on all
parties of record.

…

(10)  If a party who has received a list of documents
believes that the list omits documents or a class of documents that should have
been disclosed under subrule (1) (a) or (9), the party may, by written demand,
require the party who prepared the list to

(a) amend the list of
documents,

(b) serve on the demanding
party the amended list of documents, and

(c) make the originals of the newly listed documents
available for inspection and copying in accordance with subrules (15) and (16).

(11)  If a party who has received a list of documents
believes that the list should include documents or classes of documents that

(a) are within the listing
party’s possession, power or control,

(b) relate to any or all
matters in question in the action, and

(c) are additional to the
documents or classes of documents required under subrule (1) (a) or (9),

the party, by written demand that identifies the additional
documents or classes of documents with reasonable specificity and that
indicates the reason why such additional documents or classes of documents
should be disclosed, may require the listing party to

(d) amend the list of documents,

(e) serve on the demanding
party the amended list of documents, and

(f) make the originals of the
newly listed documents available for inspection and copying in accordance with
subrules (15) and (16).

…

(14)  On an application under subrule (13) or otherwise,
the court may

(a) order that a party be
excused from compliance with subrule (1), (3), (6), (15) or (16) or with a
demand under subrule (10) or (11), either generally or in respect of one or
more documents or classes of documents, or

(b) order a party to

(i)  amend the list of
documents to list additional documents that are or have been in the party’s
possession, power or control relating to any or all matters in question in the
action,

(ii)  serve the amended list
of documents on all parties of record, and

(iii)  make the originals of the newly listed documents
available for inspection and copying in accordance with subrules (15) and (16).

[33]        
Since July 1, 2010, the court has issued a number of decisions
addressing the parameters of document production under Rule 7-1. The
decisions address not only the “materiality” requirement for production, but
also the concept of proportionality (Rule 1-3).

[34]        
In Global Pacific Concepts Inc. v. Owners of Strata Plan NW 141,
2011 BCSC 1752, Dillon J. recognized a distinction between the more limited
initial disclosure obligations under Rule 7-1(1) and broader disclosure orders
granted under Rule 7‑1(14). The court also found that an order for
broader disclosure can be consistent with the proportionality objective: para.
11.

[35]        
There appears to be only one reported decision addressing the disclosure
of a plaintiff’s private social media information pursuant to Rule 7-1: Dosanjh
v. Leblanc and St. Paul’s Hospital. In this medical malpractice case, the
defence demanded production of the plaintiff’s Twitter account, iPhone metadata,
computer hard drive and “social media accounts of digital photographs, if any” on
the basis that such material might relate to the plaintiff’s health, mental
state and employability.

[36]        
The evidence before the court revealed that the plaintiff used some
electronic devices to communicate with family and friends about her health. The
plaintiff had also posted photographs on a now closed Facebook profile.

[37]        
In dismissing the application, Master Taylor said this:

[28]         The
defendant has not indicated the material fact or facts which it believes can be
proved by searching the plaintiff’s personal computer and her social media
sites.  Rather, the defendant merely says that health, enjoyment of life
and employability are in issue.  Surely more is or should be required to
meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in
issue in order to infringe on a litigant’s privacy.

[29]         To be
able to obtain a litigant’s private thoughts and feelings as expressed to
friends or family members after the fact is, in my view, similar to a party
intercepting private communications of another party.

[30]         I am
unable to envisage any rational justification for breaching the privacy rights
of an individual in civil proceedings simply because it is alleged that the
individual’s general health, enjoyment of life and employability are directly
at issue.  Merely because a record may be made of the communication
shouldn’t make it any different than a private telephone conversation.  If
not, surely applications in civil proceedings for recordings of private
communications can’t be far behind.

[31]         The
plaintiff has provided an affidavit in response to the defendant’s application,
in which she has deposed that she uses both her laptop and her iPhone to
communicate with her lawyer over email and, in the case of her iPhone, using
text messages.

[32]         As well,
the plaintiff has deposed to being upset with the prospect of producing her
Facebook account, her Twitter account, her computer and iPhone to the defendant
as she feels they are private.  She has also deposed that she opened a
Facebook account around the time of her surgery in 2006, mostly to see what
other people were doing and to keep in touch with friends or family with whom
she had lost touch.  The plaintiff has also deposed that she closed her
Facebook account approximately a year and a half ago.

[33]        
I am satisfied that the defendant’s application is entirely too broad and lacks
the focus required by Rule 7-1(1)(a)(i).  In fact, I am more inclined to
call this application a classic fishing expedition, but without the appropriate
bait.  I observe as well that the order made by the court in Bishop,
supra, was focussed on the times the plaintiff spent on his Facebook.

[38]        
The interplay between privacy rights, disclosure obligations and
remedies under Rule 7-1 is most recently addressed in Kaladjian v. Jose,
2012 BCSC 357.

[39]        
The decision largely addresses document production under Rule 7-1(18).
However, a number of conclusions are germane to this application:

1.  Pleadings continue to govern
the determination of issues of relevance in relation to the scope of
examination for discovery under the SCCR and will usually also govern
issues concerning the initial disclosure obligations of a party under Rule7-1
if those obligations are challenged under Rule 7‑1(10): para. 61;

2.  The removal of the Peruvian
Guano train of inquiry test of relevance will generally require a defendant
to provide some evidence to support an application for additional documents
whether demand is made under Rule 7‑1(11) or Rule 7-1(18): para. 62;

3.  Privacy rights should not be
abridged without cogent reasons to do so: para. 74;

4.  An automobile accident does not
amount to an implied waiver of privacy rights: para. 78;

5.  The scope of document discovery
and oral discovery is now not the same: para. 57. However, the scope of
examination for discovery under the present Rules remains unchanged and
is very broad: para. 58; see also Kendall v. Sun Life Assurance Company of
Canada, 2010 BCSC 1556, and More Marine Ltd. v. Shearwater Marine Ltd.,
2011 BCSC 166.

[40]        
As noted, the decision of Abougoush v. Sauve addresses disclosure
of private digital information. However, the decision does not concern
disclosure of private web-site information.

[41]        
In that case, counsel had prepared a binder containing 172 photographs
depicting the plaintiff on three separate vacations. The plaintiff acknowledged
that photographs were taken “at a time when she alleges that as a consequence
of her injuries, she was unable to work and could not attend her college
courses.” The court agreed to review the photographs and extract those
considered relevant to a matter in question in the lawsuit: para. 6.

[42]        
Upon review, the court found that:

[7]        The photographs in question
depict the plaintiff in various indoor and outdoor tropical settings. The
plaintiff is depicted engaging in various activities including swimming,
walking on a beach, going on a catamaran power boat, and visiting the Grand
Canyon. The photographs clearly establish that the plaintiff did not spend the
majority of her time curled up in her parent’s motorhome or resting poolside in
a chaise lounge.

[8]        I have referred to the pleadings,
of course, in order to determine what matters are in question, but I have also
referred to the plaintiff’s Affidavit #1, particularly the extracts set out
above. The pleadings establish that the nature and extent of the plaintiff’s
physical injuries, their effect on her enjoyment of life and their effect on
her ability to participate in physical activity are matters in question. The
photographs, when they are compared to the plaintiff’s affidavit evidence, are
clearly relevant to the plaintiff’s perception of what is a physical activity.
They are also relevant to the plaintiff’s tolerance for physical activity over
a several week period.

[9]        The photographs do not show the
plaintiff in embarrassing or socially unacceptable situations. There is nothing
about the photographs that would prevent their owner from, for example, posting
them on a social networking site such as Facebook. I do not consider that the
plaintiff’s demeanour or comportment in any of the photographs in the binder is
such that they must be withheld from the defendants in order to preserve her
privacy.

[10]      In my
opinion, the plaintiff’s pleadings and her affidavit evidence make the entire
photographic record of her trips to Las Vegas and Palm Springs, and to the
Caribbean, relevant to matters in question in this suit. All of the photographs
in the binder provided to me must, therefore, be produced to the defendants.

The Ontario Decisions and
other Authorities

[43]        
The approaches by courts across the country to the production and admissibility
of social media/digital information is thoroughly canvassed by R. Podolny
in When “Friends” Become Adversaries: Litigation in the Age of Facebook, (2009)
33(2) Man. L.J. 391-407.

[44]        
After surveying some of the conflicting results on the issue, Mr.
Podolny concludes:

20        It
appears, then, that it is "beyond controversy" that a person’s
Facebook profile may contain materials relevant to a legal action and which may
need to be disclosed to satisfy discovery obligations. Undisputedly,
however, courts may not provide relief by ordering the provision of a
Facebook password from one party to another; rather, courts may only order
disclosure of Facebook content and metadata associated with a Facebook profile.
The disagreements between courts centre on the access to the
"private" portion of a Facebook profile. The better view is that
a plaintiff seeking disclosure of documents posted on the "private"
portion of a user’s profile must adduce some evidence (based on the
"public" portion or examination for discovery) which would lead a
court to believe that the "private" portion contains documents which
are relevant to the action. Fishing expeditions will not be allowed, but a
defendant may not hide from disclosure by restricting access to information he
or she posts on the web to a select group of "friends."

[45]        
The defendants rely on Leduc v. Roman, 2009 CanLII 6838 (Ont.
Sup. Ct.), one of the decisions cited in the article as demonstrating a more
liberal approach to production of Facebook information.

[46]        
The existence of the Facebook profile came to the defence’s attention by
way of counsel’s search of that social media network. The plaintiff had been
examined for discovery but no questions were asked regarding a Facebook profile
or any content. At pp. 4 and 5 of that decision, the court discusses the
approach of other courts to the disclosure of Facebook postings:

[23]      That a person’s Facebook profile
may contain documents relevant to the issues in an action is beyond
controversy. Photographs of parties posted to their Facebook profiles have been
admitted as evidence relevant to demonstrating a party’s ability to engage in
sports and other recreational activities where the plaintiff has put his
enjoyment of life or ability to work in issue: Cikojevic v. Timm, 2008
BCSC 74 (CanLII), 2008 BCSC 74 (Master), para. 47; R. (CM.) v. R.
(O.D.), 2008 NBQB 253, paras. 54 and 61; Kourtesis v. Joris, [2007]
O.J. No. 2677 (Sup. Ct.), paras. 72 to 75; Goodridge (Litigation Guardian
of) v. King, 161 A.C.W.S. (3d) 984 (Ont. Sup.Ct.), para. 128. In one
case the discovery of photographs of a party posted on a MySpace webpage formed
the basis for a request to produce additional photographs not posted on the
site: Weber v. Dyck, [2007] O.J. No. 2384 (Sup. Ct., Master).

[24]      The only case, however, to which
counsel referred me on the question of the production of the access-limited
contents of a Facebook profile was that of Rady, J. in Murphy v. Perger, [2007]
O.J. No. 5511 (S.C.J.). That case also involved a claim for damages resulting
from injuries suffered in a car accident, including a claim regarding loss of
enjoyment of life. The plaintiff had posted photographs on her
publicly-accessible Facebook profile showing her engaged in various social activities.
The defendant moved for production of any photographs maintained on the private
Facebook profile over which the plaintiff had control. In considering whether
the defendant’s request represented a mere fishing expedition or whether
relevant photographs likely were posted on the private site, Rady J. stated:

17        It seems
reasonable to conclude that there are likely to be relevant photographs on the
site for two reasons. First, www.facebook.com is a social networking site where
I understand a very large number of photographs are deposited by its audience.
Second, given that the public site includes photographs, it seems reasonable to
conclude the private site would as well.

18        On the
issue of relevancy, in this case, clearly the plaintiff must consider that some
photographs are relevant to her claim because she has served photographs of her
prior to the accident, notwithstanding that they are only "snapshots in
time".

[25]      Rady J. discounted that any
significant privacy concerns arose in the circumstances before her:

20        Having
considered these competing interests, I have concluded that any invasion of
privacy is minimal and is outweighed by the defendant’s need to have the
photographs in order to assess the case. The plaintiff could not have a serious
expectation of privacy given that 366 people have been granted access to the
private site.

Rady J. ordered
the plaintiff to produce copies of the web pages posted on her private site,
subject to the ability of plaintiff’s counsel to make future submissions in the
event that any of the photographs personally embarrassed the plaintiff.

[47]        
With respect to production of the entire Facebook “record”, the court
said this:

[33]      I do
agree with Master Dash that mere proof of the existence of a Facebook profile
does not entitle a party to gain access to all material placed on that site.
Some material may relate to matters in issue; some may not. Rule 30.06 requires
the presentation of some evidence that a party possesses a relevant document
before a court can order production. Most often such evidence will emerge from
questions asked on a party’s examination for discovery about the existence and
content of the person’s Facebook profile. Where the party’s answers reveal that
his Facebook profile contains content that may relate to issues in an action,
production can be ordered of the relevant content.

[48]        
Interestingly, the court in Murphy v. Perger reviews some of the
pre‑SCCR decisions cited above noting that the result in Desgagne
v. Yuen was based on the fact that the plaintiff’s injury was primarily
cognitive while photographs of the plaintiff with family and friends on
vacation would provide “no insight into her limitations”: para. 15.

[49]        
Distinct from the case at bar, the plaintiff in Murphy v. Perger
had disclosed photographs in her initial list of documents. It is not clear
whether the plaintiff was asked about her Facebook page at an examination for
discovery. The defendant did have access to another online site which
publically disclosed photographs of the plaintiff engaging in various social
activities.

[50]        
Importantly, the court went on to add a proviso that if any concerns
arose with respect to the content of the photographs (“in the sense that they
are personally embarrassing to the subject”) counsel could re-attend and speak
to the matter.

[51]        
A more recent decision of Morabito v. DiLorenzo, 2011 ONSC 7379, somewhat
mirrors the circumstances here. At the examination for discovery, the plaintiff
acknowledged that he had both a Facebook and MySpace account. He would not reveal
whether any photographs were posted on these sites, claiming privacy rights.
The court found that:

5          Photographs of the
plaintiff, taken before and after the accident, are relevant. Photographs after
the accident show the effect of the injuries and whether and to what extent
they affect his enjoyment of life. Photographs taken before the accident are
relevant for comparison.

[52]        
The court ordered the plaintiff to re-attend the examination for
discovery to answer questions about the photographs of himself that he had
posted on Facebook or MySpace.Further, if there are any such photographs, the
plaintiff was required to produce them to the defence.

[53]        
The plaintiff was not obliged to provide the defence with status updates
or messages posted by others on the plaintiff’s Facebook wall.

Discussion

[54]        
After considering all of these authorities, I have concluded that some
of the plaintiff’s photographs, including those held on the private Facebook profile,
ought to be disclosed.

[55]        
The pleadings define the issues between the parties. Here, there is also
evidence on which the court can exercise its discretion to allow for broader
document discovery under Rule 7-1(14).

[56]        
In her pleadings, the plaintiff alleges that the accident led to not
only loss of amenities of life, but also loss of mobility and diminished
earning capacity.

[57]        
The diminished capacity is said to be the result of pain and fatigue.
Ms. Fric claims that the injuries effected her academic achievements and
thus ability to secure employment after her second year of law school. The
ongoing symptoms continue to impact Ms. Fric’s working capacity.

[58]        
How this diminished capacity is measured is yet to be determined.
However, the defence fairly argues that a damage award for a young professional’s
diminished earning capacity can be very significant. Although plaintiff’s
counsel downplays this aspect of the claim, there is no suggestion that the
plea is to be withdrawn.

[59]        
Ms. Fric has also testified that the accident-related injuries have negatively
impacted her social life and ability to perform certain sports or recreational
activities, either pain-free or at all. While Ms. Fric has remained an active
individual, the symptoms from the accident-related injuries are allegedly
unresolved. Obviously, the ongoing complaints will influence the award claimed
for pain and suffering.

[60]        
Photographs which show the plaintiff engaging in a sporting or physical
recreational activity — from hiking to scuba diving to curling to dancing —
are relevant in discovering the plaintiff’s physical capacity since the
accident.

[61]        
I do not agree with the plaintiff’s submission that such information is
only relevant when there is a claim or evidence of total disability.

[62]        
In terms of proportionality and ensuring a fair trial on the merits, the
defence should be given an opportunity to discover the plaintiff on all aspects
of her physical functioning and activity level since the accident.

[63]        
Allowing such discovery does not preclude the plaintiff from arguing
that some of the produced photographs are inadmissible at trial. The trial
judge may accept that the prejudicial effect of a particular photograph outweighs
any probative value.

[64]        
Nonetheless, the order sought by the defendants is too broad.

[65]        
 The relief sought in paragraph 1 of the notice of application amounts
to the “search of the filing cabinet” frowned upon in Desgagne v. Yuen, supra.

[66]        
The defence is somewhat hampered in identifying relevant photographs
since the plaintiff declined to answer questions regarding the Facebook content
at her examination for discovery. The affidavit filed by the plaintiff does not
offer any assistance in this regard.

[67]        
One option open to the court is to order that the plaintiff re-attend an
examination to answer questions about the photographs. However, that step might
simply add a layer of unnecessary costs when the kind of photographs to be
produced can be determined from evidence already gathered. Furthermore, the
defendants did not request this relief in their notice of application.

[68]        
Photographs of Ms. Fric’s activities at the Law Games are relevant to the
claim of physical impairment and social withdrawal.

[69]        
Ms. Fric says that she participated in some activities while on
vacations in the last several years but also that these activities were at
times restricted or abandoned. Again, the defence should be given an
opportunity to discover whether the claim for reduced physical capacity is
accurate.

[70]        
In my view, the appropriate relief is to order Ms. Fric to produce an amended
list of documents which identifies the photographs and video in her possession
and control in which in which she is featured:

1.  participating
in the December 2008 Law Games; and

2.  on a vacation taken since
November 18, 2008.

[71]        
The photographs should be identified by location, date and time (if this
information is available to the plaintiff). The defence may then choose to
either inspect the photographs (electronically or otherwise) and/or pay for the
photographs’ duplication.

[72]        
Before disclosure, the plaintiff may edit the photographs to protect the
privacy of other individuals appearing in those photographs.

[73]        
The amended list is to be provided to the defence by no later than June
30, 2012, unless otherwise agreed.

[74]        
It is impossible to say whether this exercise will require the plaintiff
to review all of her 12,000 photographs, but it seems doubtful. Only the
plaintiff knows how many photographs in her possession fall within the defined
categories. As with any document disclosure, plaintiff’s counsel will be
involved in the review and no doubt provide any necessary guidance.

[75]        
The plaintiff is not obliged to include commentary from the Facebook web‑site.
If such commentary exists, the probative value of this information is
outweighed by the competing interest of protecting the private thoughts of the
plaintiff and third parties: Dosanjh v. Leblanc.

[76]        
Costs of the application will be to the defendants in the cause.

                     “C.
P. Bouck”                   

Master
C. P. Bouck