The Law in Ontario Regarding the Production of Social Media Accounts and Privacy Considerations in Personal Injury Matters

“I acknowledge that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict.  But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.”

-McLachlin J. para. 38  M.(A.) v. Ryan, 1997 CanLII 403 (SCC)

In today’s digital age, social media has become an integral part of our lives. It allows us to connect with friends, share our thoughts, and express ourselves. However, the use of social media can be disruptive to a personal injury matter and can have serious legal implications. This article aims to briefly explore the law in Ontario regarding the production of social media accounts or the information contained in them, and shed light on the privacy considerations that individuals might expect in personal injury cases.

What is often overlooked by an individual in a personal injury action is that, to some extent, their life will be an open book.  The difficulty for counsel is ensuring that clients are aware that any expectation of privacy may be compromised by posting on social media.  As I tell my clients, we live in an age where we post our entire lives on social media for all the world to see.  Thus, expecting that one’s posts will remain private is simply unrealistic.

The Law in Ontario Regarding the Production of Social Media Accounts 

The law in Ontario recognizes that social media accounts and the information contained within them can be relevant evidence in legal proceedings. Courts have held that social media posts can be used as evidence to establish facts, challenge credibility, or disprove claims made by parties involved in a lawsuit. However, there are certain considerations and limitations when it comes to producing social media accounts as evidence.

1. Privacy Settings: Individuals have control over their privacy settings on social media platforms. Depending on the privacy settings set by the user, personal information and communications posted on a social media site can be read by unintended people.  To wit, an insurance adjuster, or a defence lawyer. It is essential to understand that even if an individual views their personal social media pages as private, any information or communications posted on these platforms for all to see can potentially be accessed by various parties involved in a legal proceeding.  Furthermore, even if the information is set to private, meaning that it is only limited to a certain set of people within the inner circle of the individual, such information may still be considered relevant and, therefore, producible if the court finds that posting is relevant to the action. 

2. Relevance: To produce social media accounts or information contained within them as evidence, it must be relevant to the issues in dispute. Courts will consider whether the requested information is likely to be useful for determining the truth or falsehood of a claim or defense.  Thus, the pleadings will be of major importance in establishing the scope of what may or may not be producible in a personal injury action since it will outline what may be relevant and material to the claim. 

3. Proportionality: The production of social media accounts must be proportional to the issues at hand. Courts will assess whether the potential benefits of accessing social media accounts outweigh any potential harm or invasion of privacy.

The issue of proportionality recently arose in Mohamud v. Juskey, 2023 ONSC 4414 (CanLII), a decision of the Ontario Superior Court of Justice.  The court was faced with the privacy issues of the injured party and the right of the defendant to disclosure of relevant evidence.  The court confirmed that determining whether evidence was relevant was subject to a low threshold.  However, the court also acknowledged the issue of prejudice, which included an intrusion into an individual’s privacy, had to be balanced against probative value of the evidence.

The court stated there was a lack of a legal framework in which to analyze privacy consideration in the context of a disclosure application.  In this case, there was no claim of privilege, solicitor and client or litigation privilege.  Accordingly, the court held:

“[75] Rule 29.2, “Proportionality in Discovery”, was added to the Rules as part of a number of significant amendments that came into force in January 2010. Rule 29.2.03(c) directs the court to consider, when making a determination as to whether a party must produce a document, whether requiring her to do so would cause her undue prejudice. Presumably, the concept of “prejudice” as used in the context of this rule, is broad enough to include intrusions into a party’s privacy interests.

[76] Indeed, there is support in the jurisprudence for the conclusion that privacy is a matter the court can consider when applying r. 29.2.03(c). See, for instance, Commercial Spring and Tool Co. v. Barrie Welding & Machine (1974) Inc., 2021 ONSC 2591 at para. 24 and Merpaw v. Hyde, 2014 ONSC 1053 at para. 20.

[77] In my view, where a party to a civil action resists disclosure on privacy grounds, the court must, under r. 29.2.03(c), 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 

[78] Parties to civil litigation must appreciate, of course, that there will inevitably be intrusions upon their personal privacy when they are involved in civil court proceedings. After all, the modern trend in civil litigation is towards complete discovery. See General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321, [1999] O.J. No. 3291 (C.A.) at para. 25. Complete discovery of all relevant records is considered essential to the proper functioning of the adversarial system.”

Due to the lack of evidence available to the judge, an order was made for the production of a further and better affidavit of documents.  As such, no disposition was made on the production of the social media posts in question.

4. Authentication: To ensure the authenticity and integrity of social media evidence, courts may require parties to establish that the account belongs to the person it purports to belong to. This can be done through various means, such as providing login credentials, screenshots, or expert testimony.

Clearly, privacy issues surrounding social media in personal injury matters can be complex and will require careful consideration during litigation. While social media can provide valuable evidence in personal injury cases, it also raises significant privacy concerns. Individuals involved in personal injury matters should be mindful of their online presence and take steps to protect their privacy.  That said, at the outset of any personal injury matter counsel must clearly warn of the implications of social media and the possibility of production of such evidence.  As well, counsel should also be prepared to provide cogent evidence how the breach of privacy sought for production of what may be relevant documentation is so prejudicial as to overcome the probative value of the evidence.  Failure to consider the foregoing could have adverse consequences to a claim.