Personal injury cases have seen a remarkable evolution in recent years, with one notable development being the emergence of social media as a powerful tool that can either strengthen or undermine a plaintiff’s claims. When pursuing a personal injury claim, plaintiffs should be mindful of the content they post to their social media platforms, as a defendant may use photos, videos, and other information to contradict the extent and impacts of a plaintiff’s alleged injuries and ultimately reduce the amount of recoverable compensation.

This blog post will discuss social media considerations in light of a recent decision from the Ontario Superior Court of Justice, which provided guidance on others for social media disclosure.

Defendant asks court to order disclosure of plaintiff’s social media content

In Mohamud v. Juskey, the plaintiff was injured in a motor vehicle accident on August 15, 2019. She alleged that the defendant lost control of his vehicle on a wet road, crossed the centre line, and collided with her vehicle. As a result of the accident, the plaintiff claimed she suffered a concussion, whiplash, chronic pain, soft tissue injuries, and psychological injuries, including depression. The plaintiff sought damages of $1.3 million for pain and suffering, lost income, loss of enjoyment of life, and future care costs, among other things.

The plaintiff commenced her claim on January 19, 2021, with trial scheduled to begin in November 2023. The plaintiff obtained three expert reports to support her claim. However, she resisted attending the defence’s medical examinations. The defendants, in turn, commenced a motion to ask the Court to compel the plaintiff to participate in these appointments. The defendants also asked the Court to order the plaintiff to disclose digital copies of her social media content from Instagram and Facebook.

Plaintiff argues social media disclosure would be intrusion of her privacy

The defendant argued that the information and posts disclosed from the plaintiff’s social media accounts would provide photographic evidence of the plaintiff engaging in various activities after the accident. As such, the defendant claimed that these photographs would be relevant to assess the plaintiff’s claim for damages relating to specific injuries that she claimed she sustained as a result of the accident.

The plaintiff, however, resisted producing such social media records, arguing that there was “minimal probative value to the contents of her social media accounts.” Further, she asserted that disclosing such contents would result in “substantial prejudice in the form of a significant intrusion on her personal privacy.”

Plaintiff not required to attend defence medical examinations

The Court noted that there was “either a complete lack of attentiveness” or a “considered decision to delay the request for defence medical appointments until a time when it was impossible to comply with the [Court’s] Rules.” Justice Boswell went on to state that the explanation provided by the defence was not reasonable, as defence counsel ought to have been aware that plaintiff’s counsel was starting to seek pre-trial dates, which “should have triggered the realization that if defence expert reports were going to be sought, the time was nigh to go about organizing them.”

Justice Boswell found that the explanation provided by the defence was not reasonable and any evidence generated by such appointments would be “presumptively inadmissible at trial.” Therefore, the Court declined to order the plaintiff’s attendance at the defence medical appointments.

Is social media evidence relevant?

Rule 30.02(1) of the Rules of Civil Procedure requires parties to a civil matter to disclose “all relevant and material documents in their possession, control or power.” Relevance and materiality of disclosure are ultimately determined by the pleadings, the parties’ positions, and substantive law. The Court acknowledged that the plaintiff, like many Canadians, has an active social media presence. It also noted that the assessment of relevance is usually straightforward concerning disclosure. However, evaluating a privacy claim in civil litigation is not as clear.

The Court indicated that Ontario civil law:

“… appears to lack a recognized legal framework against which to analyse 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.”

In this case, there was no assertion of privilege concerning the contents of the plaintiff’s social media accounts.

Parties to civil proceedings should anticipate an inevitable intrusion of personal privacy

The Rules of Civil Procedure also direct a court to determine whether a party must produce a document and whether requiring such production would cause undue prejudice. In this context, the Court stated that “prejudice” includes an intrusion of privacy. The Court indicated that if a party to a civil action resists disclosure on privacy grounds, the Court must engage in a balancing assessment to determine whether the probative value of the sought-after documents outweighs the prejudice that the party will experience. It went on to highlight the fact that civil litigants must appreciate that there will “inevitable be intrusions upon their personal privacy” when they are involved in such legal proceedings.

The Court agreed with the defendants’ assertion that the pleadings had placed the plaintiff’s enjoyment of life, functionality, and ability to work in issue. The defendants obtained several photographs publicly available from the plaintiff’s Facebook account, which depicted the plaintiff posing with friends and family members. Although most were deemed “unremarkable” by the Court, one photo did show the plaintiff on the beach, showing the plaintiff’s ability to travel and enjoy life. The defendants argued that the plaintiff’s private Facebook and Instagram profiles would contain similar content.

Court orders production of photographs relevant to live issues

The Court was satisfied that the plaintiff had likely posted post-accident photographs on her private accounts, showing her engaging in activities relevant to issues in the proceedings. However, the Court was not satisfied that the “entire contents” of such accounts were relevant. Justice Boswell stated that it would be “considerable over-reaching 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.”

As a result, the Court ordered the plaintiff to produce a further Affidavit of Documents listing all photographs in her possession, control or power, including those posted on social media accounts, which were relevant to the live issues. The Court went on to require that such production include photographs of the plaintiff engaging in activities pertinent to her claims of loss of enjoyment of life or functionality.

This decision highlights the importance of the plaintiff’s understanding of the potential consequences of posting on social media while their claim is being litigated. Social media evidence may be considered a double-edged sword that can cut either way in today’s society. On one hand, social media can serve as a platform to share your journey and garner support. Alternatively, it can expose you to a level of scrutiny not previously anticipated, even if your accounts are set to “private.”

Contact the Personal Injury Lawyers at Campbell Litigation for Trusted Advice and Representation

If you have been injured due to someone else’s negligence, such as in a motor vehicle accident, a slip and fall, or a recreational vehicle accident, the experienced personal injury team at Campbell Litigation in Waterloo is ready to help. We will help you work through the claims process and provide sound representation at trial, if necessary. We will ensure that you understand your rights, obligations, and best practices, particularly concerning privacy and social media activity until your claim is resolved. To learn more about how we can help you pursue a claim for compensation after an accident, contact us at 519-886-1204 or complete our online form.