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Motion to Compel Disclosure – Evidence-based Inquiry

Posted On: January, 21 2015

Incorporating new technologies into the Rules of Civil Procedure can sometimes present challenges for both litigants and courts.  In the recent case of Stewart v Kempster, 2012 ONSC 7236, Justice Heeney dismissed a motion by the defendants seeking an order compelling the plaintiff to produce all vacation photos since the date of her car accident and all private content on her Facebook account.

By this point in the litigation, the plaintiff had already been examined for discovery by the defendants and had testified about vacations and trips she had taken since a motor vehicle accident caused her injuries. During discovery, the plaintiff stated that there may be some photos on the private portion of her Facebook account showing her on vacation, though none that contradict her evidence confirming her injuries.

The defendants argued that the plaintiff’s vacation photos and private Facebook account, which may contain other messages or media, are relevant to the litigation and must be disclosed by the plaintiff.

Under the Rules of Civil Procedure, each party is required to provide to the other party an Affidavit of Documents that lists every document (including digital documents) that is relevant to any matter in issue in the litigation.  As Justice Heeney reminds us, this test of “relevance” is a stricter test than the former “semblance of relevance” test under the Rules prior to 2010 in Ontario.

In this case, the defendants brought their motion under Rule 30.06, which permits the court to make various orders, including an order to disclose or produce for inspection any non-privileged documents that were omitted from a party’s Affidavit of Documents, but which, based on evidence, is determined to be relevant to the litigation.

Rule 30.06 (d) also gives the court the power to inspect documents to determine whether they are relevant for disclosure, which is what happened in Stewart v Kempster. Justice Heeney decided that the pictures were not relevant as they did not show the plaintiff in any compromising situation.

Justice Heeney further discussed the relevant law surrounding a litigant’s privacy rights to documents like photographs and personal content on a private social media website, making the following interesting comments:

Before the dawn of the internet age, people often communicated by writing personal letters to each other.  It could be said that such letters served to keep friends and family connected, and provided a medium in which people would share information with each other about what matters to them.  They might even discuss the state of their health, if they happened to have suffered a traumatic event such as a motor vehicle accident in the recent past.  However, it is unimaginable that a defendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some information contained therein relevant to the plaintiff’s claim for non-pecuniary damages.  The shocking intrusiveness of such a request is obvious.  The defendants’ demand for disclosure of the entire contents of the plaintiff’s Facebook account is the digital equivalent of doing so. (para. 29)

Calling the defendants’ request a “fishing expedition and nothing more,” Justice Heeney rejected their request and dismissed the motion.  This case reminds litigants that a motion to compel disclosure is an evidence-based inquiry in which the moving party must satisfy a court that the document meets the strict test of relevancy and does not breach a litigant’s right to privacy.


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