Ontario Court Denies Motion Regarding a Facebook Account, Citing Privacy Concerns

The plaintiff (Schuster) had sued her insurer (R&S Alliance) to recover compensation for an accident, claiming that her injuries compromised her ability to work and participate in social and recreational activities. R&S Alliance moved to prevent Schuster from deleting any content in the “private” area of her Facebook account accessible only to friends, planning to compel her to produce the content in the course of the litigation. R&S Alliance admitted that its intention was to find any evidence showing that the injuries had not affected Schuster to the extent she had claimed. Justice Price, applying the test for an ex parte injunction, determined that the fact that plaintiff has a Facebook account, in itself, is not sufficient as evidence that the account would contain relevant evidence. He found that the right to delete documents from public view should not be lightly interfered with, citing the findings of the Privacy Commissioner of Canada that a user has a privacy interest in his or her profiles, as well as a privacy interest in withdrawing information from the public’s view. (See “Facebook Agrees to Implement Federal Privacy Commissioner’s Recommendations” E-TIPS® Vol 8 No 6, September 9, 2009). However, Justice Price granted leave to cross-examine Schuster on her affidavit of documents, noting that Facebook is a recent phenomenon and disclosure obligations may not be clear. Two earlier judgments regarding the discovery of Facebook accounts had ordered the production of Facebook content for inspection, but only when such content was relevant. For the reasons for judgment, visit: Schuster v Royal & Sun Alliance Insurance Co of Canada, [2009] OJ No 4518, October 29, 2009 For the two earlier decisions cited in the judgment, see: Wice v Dominion of Canada General Insurance Company, 2009 CanLII 36310, July 6, 2009; and Leduc v Roman, 2009 CanLII 6838, February 20, 2009 Summary by: Lea Epstein