Ontario Court Denies Ex Parte Motion to Preserve Facebook

A New Decision on Facebook: Ex Parte Injunctions and Preservation Orders

Another Ontario decision dealing with production of Facebook profiles in personal injury lawsuits was released on October 29, 2009. In Schuster v. Royal & SunAlliance Insurance Company of Canada, the defendant brought a motion before a judge, without notice to the plaintiff, seeking an injunction requiring the plaintiff to preserve and produce her Facebook webpage.  The particulars of the decision are set out in detail, below.

Discovery CartoonThe plaintiff claimed that, as a result of a car accident, she suffered injuries that impaired her ability to work and to participate in social and recreational activities. During litigation, she produced an “affidavit of documents” (a sworn list of all documents in a party’s possession, including electronic documents, that are relevant to the lawsuit) in which she failed to disclose the existence of her Facebook account.

The defendant hired a surveillance company and discovered the Facebook account, for which access was restricted to 67 “friends”, one being the plaintiff’s mother-in-law. The defendant was able to obtain photographs from the mother-in-law’s Facebook account in which there were pictures of the plaintiff dated before and after the accident, although she was just standing, sitting or reclining  (she was not engaged in any activities in relation to which she claimed to be impaired).

The defendant had brought the motion on an ex parte basis (that is, without notice to the plaintiff) seeking an Interim Order for the Preservation of Property under Rule 45.01 of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194). (Ex parte motions are typically granted where urgency arises because there is a reason to believe that the responding party, if given notice of the motion, will take steps to frustrate the process of justice before the motion can be decided). Rule 45.01 states:

INTERIM ORDER FOR PRESERVATION OR SALE

45.01 (1)  The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party. R.R.O. 1990, Reg. 194, r. 45.01 (1).

(2)  Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just. R.R.O. 1990, Reg. 194, r. 45.01 (2).

The Court noted that Rule 45.01(1) is “typically used to ensure that important documents, information or other items are preserved and available for the trial of an action where there is a strong likelihood that the defendant would destroy this evidence once notified of the proceedings”. As a result, an order under Rule 45.01 is similar to a civil search warrant and therefore subject to a higher threshold test than an “ordinary” ex parte injunction, pursuant to s. 101 of the Courts of Justice Act (“CJA”). (Note that Rule 40 of the Rules of Civil Procedure sets out the procedure to be followed in order to obtain an order under s. 101 of the CJA).

Justice Price noted that it was unclear whether the defendant was seeking access to just the web site, or the preservation and production of the website contents, and noted that an order granting the defendant access to the site would be far more invasive than ordering the plaintiff to preserve the contents of the site. Since an order granting the defendant access to the plaintiff’s Facebook account would have required the plaintiff to provide her username and password to the defendant (and was beyond the scope of her obligation to disclose relevant documents), the Court proceeded on the assumption that the defendant was only seeking an order for preservation of the site.

Justice Price then considered whether the defendant had met the test for an ordinary ex parte injunction under s. 101 of the CJA:

101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)

Terms

(2)An order under subsection (1) may include such terms as are considered just. R.S.O. 1990, c. C.43, s. 101 (2).

In considering whether to grant the interlocutory  injunction, Justice Price applied the test set out by the Supreme Court of Canada in R.J.R. Macdonald Inc. v. Canada (A.G.):

1.)    Is there a serious question to be tried? Judge Price found that there was a serious question to be tried, namely, the extent to which the accident had prevented the plaintiff from earning and income and engaging in recreational activities.

2.)    Will the applicant suffer irreparable harm if the application is not granted? This is usually determined by considering whether damages will be an adequate remedy. In this case, the defendant argued that without the content of the Facebook webpage, it woudl be deprived of the opportunity to properly respond to the plaintiff’s claim. The Judge disagreed noting that proof of irreparable harm must be clear and not speculative ; there was no evidence that there were incriminating photographs on the plaintiff’s Facebook page. In fact, Justice Price held that since the plaintiff had not listed the Facebook page in her affidavit of documents, the presumption was that this was because the Facebook page did not contain any relevant information. Unlike in previous Ontario cases dealing with Facebook production, in this case, the judge was NOT prepared to draw an inference from the nature of Facebook itself or the plaintiff’s profile that her Facebook page was likely to contain relevant evidence, stating:

I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintiff’s account in the present case do not appear, on their face, to be relevant”.

3.   Whom Does the Balance of Convenience Favor? In weighing the privacy interests of the plaintiff and the defendant’s interest in full disclosure, the court concluded that the balance favored the plaintiff:

  • The plaintiff’s failure to disclose her Facebook account in her affidavit of documents should give rise to the presumption that the information on the webpage is not relevant to the litigation – the defendant has the opportunity to rebut this presumption by cross-examining her on her affidavit of documents if it so chooses.
  • The defendant had been at liberty to question the plaintiff about her Facebook account at her examination for discovery.
  • There was no evidence to support the defendant’s proposition that the plaintiff was likely to delete any relevant contents of her Facebook profile pending trial.

In considering the plaintiff’s privacy interests, Justice Price had regard to the Federal Privacy Commissioner’s Report of Findings into the Complaint filed by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) Against Facebook Inc” under the Personal Information Protection and Electronic Documents Act, and concluded:

The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends”. She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.

As a result of the foregoing, the Court concluded:

The Defendant has not established a basis for a preservation order in the present case, especially on an ex parte motion. The Defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved. It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion.

The Court did decide, however, that “[b]ecause Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it”, the Court was prepared to grant the defendant a further opportunity to cross-examine the plaintiff on her affidavit of documents if it chose to do so.

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Limitation Periods for Property Damage Losses in Canada

What is a Limitation Period?

All legal proceedings, including subrogated recovery actions, must be commenced within a certain period of time set out by legislation. The time period in which an action can be brought is called a limitation period. It is also sometimes called a prescription period. If an action is not brought within the applicable limitation period, the claim will be forever lost. Even the most meritorious subrogated claim will disappear because of the expiry of a limitation period.

What is the Purpose of a Limitation Period?

The essential purpose of a limitation period is to place a reasonable limit on the amount of time which a party may take to commence an action. This serves a number of important purposes:

  • It creates an incentive for plaintiffs to bring their lawsuits in a timely fashion.
  • It defines a period of time in which a defendant can know with certainty that it will be free of ancient obligations.
  • It prevents plaintiffs from bringing old claims in which evidence has been lost by the passage of time

When Does a Limitation Period Start to Run?

Each province has different rules about when a limitation period begins to run. For example, in some provinces, time will start to run as soon as the facts which give rise to the claim take place. In other cases, the limitation period may not begin to run until the plaintiff discovers that he or she has been wronged. In some cases, a limitation period may temporarily stop running while parties are attempting to reach a settlement agreement. A party’s conduct may also affect the running of a limitation period. Additionally, where a plaintiff is a minor or under a disability, the limitation period may not start to run until after that person reaches the age of majority or is represented by a litigation guardian.

Which Limitation Period Applies?

The limitation period that applies in a particular case is determined by a number of factors. Just as limitation periods vary from province to province, they may also vary depending on the nature of the subrogated claim or cause of action, or the subject matter of the claim. Furthermore, some actions are dealt with by federal law in which case there may be one single limitation period that applies across Canada. Limitation periods may also vary depending upon the identity of the party being sued. For example, different limitation periods may apply if an action is brought against a municipality or other government body. The applicable limitation period may also be affected by the identity of the plaintiff, for example, where the plaintiff is a minor or under a disability. Finally, in some provinces, but not all of them, parties can agree to a different limitation period than is set out in the legislation.

You will also notice that some provinces have a maximum time period, called an “ultimate limitation period”, after which time the claim will be barred, even if the person did not ever become aware of the circumstances giving rise to the claim. The ultimate limitation may be particularly significant in claims arising out of faulty construction or environmental contamination where a defendant’s wrongful conduct may often not be discovered for long periods of time  The following is intended as an educational overview of some of the general limitation periods that will apply in claims for property losses in Canada:

(NOTE: Depending on the circumstances, different limitation periods may apply, or additional notice requirements may be applicable. For example, claims involving assaults or intentional acts, claims against municipalities, claims against medical professionals may be subject to additional notice requirements AND shorter limitation periods. For this reason alone, you should always seek legal advice specific to your circumstances).

ALBERTA

BRITISH COLUMBIA

MANITOBA

NEW BRUNSWICK

  • General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S. N.B. 1973, c. L-8, s. 9.
  • UPDATE:  As of May  1, 2010, there is a general limitation period of 2 years, and an ultimate limitation period of 15 years. Limitation of Actions Act, S.N.B. 2009, c. L-8.5.

NFLD. & LABRADOR

N.W.T.

NOVA SCOTIA

  • General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 2(1)(e). However, within 4 years of expiry of general limitation period, court may disallow the limitation period, having regard to circumstances of the case – Listed are enumerated factors to consider including date of “discovery” of claim, Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 3.
  • Note: A 2009 version of this Act has received royal assent but has not yet been proclaimed in force.

NUNAVUT

ONTARIO

  • General Limitation Period – 2 years commencing when the cause of action is discovered. Limitations Act, 2002, S.O. 2004, c. 31, ss. 4,5.
  • Ultimate Limitation Period – 15 years (commencing  from 2004 or when the cause of action arises, whichever is later). Limitations Act, 2002, S.O. 2004, c. 31, s. 15.
  • Transitional Rules: Apply if a cause of action arose before January 1, 2004 and a proceeding has not yet been commenced:  (1) Claim not “discovered” until after Jan 1, 2004, then 2 years from discovery, s. 24(5)(1); (2) Claim “discovered” before Jan 1, 2004, then 6 years from discovery, s. 24(5)(4); (3); If former limitation period expired before Jan 1, 2004, then no proceeding shall be commenced, s. 24(3).

P.E.I.

QUEBEC

SASKATCHEWAN

YUKON

Conclusion

Although it is important for subrogation professionals to be alert to some of the limitation periods which might commonly apply in property damage claims, the limitation period which finally applies in a given case can be a complex and difficult legal issue to determine and may require resort to both legislation and case law. Oftentimes, the seemingly obvious limitation period is not the correct one and in some cases, the correct limitation period may even be difficult for lawyers to identify or locate. The opinion of an experienced lawyer should always be obtained in order to ensure that a subrogated claim is not unintentionally forsaken.