Wice v. Dominion of Canada General Insurance Company is another in a recently-emerging line of cases that have considered the extent to which a party has an obligation to produce information on his or her Facebook profile. This case involved a dispute about statutory accident benefits. Mr. Justice R. Cary Boswell followed the decision of Mr. Justice Brown in Leduc v. Roman and ordered the plaintiff to deliver a further and better affidavit of documents, listing relevant documents contained on his Facebook account or any other similar account. The plaintiff was also ordered to preserve information and documentation for the duration of the litigation.
His Honour reasoned that the litigation raised issues about the plaintiff’s ability to function in a variety of circumstances. He concluded that the Facebook documents depicted the plaintiff participating in social activities and that they were therefore relevant in the case. Justice Brown took a similar approach in Leduc.
These two decisions suggest that the courts are going to require that information contained on social network websites such as Facebook will be producible in personal injury lawsuits. What is less clear is what evidentiary foundation will have to be established by the opposing party, in order to obtain an order for production.
In Wice, the plaintiff’s Facebook site was a private or “closed” one, meaning that only those to whom the plaintiff had given permission could view the contents.
Nevertheless, the moving party was able to tender some evidence of the contents of the site. Justice Boswell said that “The Defendant has produced evidence demonstrating that there are relevant photographs of the Plaintiff participating in social activities posted on his Facebook profile.” It is unclear just what that evidence was or how the defendant came by it. In the ordinary course though, an opposing litigant might not be able to do more than speculate as to what information was contained on the plaintiff’s Facebook account. Justice Boswell seemed to rely, in part, on the evidence of what was on the plaintiff’s site. We wonder whether a defendant, in a case such as this one, should be required to adduce any evidence of the contents of the Facebook site or whether evidence of the site’s existence alone should suffice.