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Posts from the ‘Privacy’ Category

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

I have written previously about a relatively new cause of action in Canada called “intrusion into seclusion.” It is essentially a privacy-based tort claim that a person can assert by establishing damages from an unauthorized intrusion into his or her private affairs by someone else.

Recently, this new type of tort has been successfully claimed in the Family Law context by a wife against her estranged husband, in a case called Patel v Sheth.

The couple had been married for about 3 years when they separated for the first time, with the wife moving out of the matrimonial home. Shortly after they made an effort to reconcile, but matters became increasingly acrimonious and they separated for a final time about 8 months later.

At one point during their reconciliation attempt, when the wife was taking steps to gradually move back into the home, the husband surreptitiously installed a video camera in the bedroom, hiding it in a BMW keychain placed on an armoire. The camera faced the bathroom.   Given its placement, the camera would have caught the wife in the act of getting undressed.

The wife found the camera in the bedroom after their final separation, when she was moving furniture around.

As part of their later divorce proceedings, the wife added a $50,000 claim in damages against the husband, for his having intruded on and breached her privacy by installing the hidden camera in such a highly personal area of the home.   She asserted that she was offended and embarrassed.

In explanation, the husband claimed he installed the camera ostensibly for his own protection, since at one point the wife had falsely accused him of assault. Claiming that he never downloaded any of the images it may have recorded, he asserted that the wife suffered no damages.

In considering this scenario, the court concluded that even though the cameras did not capture any explicit images, the potential to do so was real. The privacy intrusion took place in the context of a domestic relationship, and in the court’s view it was also an “extremely aggravating” factor that the husband had initially lied about the camera under oath during discovery, and even tried to blame the wife.  (He later admitted to that lie at trial).

Furthermore, the husband’s explanation for installing the camera made no sense: If he was concerned about further assault allegations being levelled at him, there were many other rooms in the house where physical violence could conceivably take place. Yet he did not bother to plant hidden cameras anywhere but the bedroom.

The court ultimately held that the wife was entitled to damages of $15,000, observing that although she was shocked and embarrassed, there was no medical evidence filed to support any significant effect on her health. The court also held that this was not a case for additional punitive damages to be awarded.

For the full text of the decision, see:

Patel v Sheth, 2016 ONSC 6964 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Appeal Court Rules on Privacy of Text Messages

iphone

Appeal Court Rules on Privacy of Text Messages

A just-released criminal case from the Ontario Court of Appeal has some interesting things to say about the privacy of text messages whether they are subject to constitutional protections – and it may have some trickle-down effect in the Family Law realm someday.

The accused was convicted of multiple firearms offences, which convictions hinged squarely on certain text messages between two other parties (one of whom was a co-accused) in which gun trafficking was discussed.

In considering whether there had been a breach of the Charter in connection with the admission of that text evidence, an application judge held that there was no expectation of privacy in connection with the text messages found on the co-accused’s iPhone. Specifically, that judge said:

… I accept that the sender of a text message has a reasonable expectation of privacy in its contents after it has been sent but before it reaches its intended destination. This would include text messages stored in a service provider’s data base. Once the message reaches its intended recipient, however, it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

The Appeal Court was asked to rule on whether this conclusion by the application judge was correct. Two out of three judges on the panel agreed that it was:

There is, in my view, a lack of empirical evidence to support a conclusion that senders of text messages have a presumptively reasonable expectation, from an objective standpoint, that their text messages will remain private in the hands of the recipient. In fact, there are many examples of behaviour in text messaging (and in other forms of communication) that suggest that senders are alive to the fact that their communications may no longer be private once sent or made.

For example, the use of pseudonyms and coded language in text messaging (generally in the context of criminal activity) is often used to disguise who is speaking in a text message and the subject matter of the message.

Because many contextual factors can tip the balance in either direction, it must be that the objectively reasonable expectation of a text user in a particular case should be assessed on a case-by-case basis, not on a broad presumption about how text messaging is used in society…

Admittedly, this was a criminal case, and it was handed down by the court along with two other criminal cases, R. v. Jones and R. v. Smith, each of which had similar outcomes. How and whether these rulings affect other areas of the law, including Family Law, still remains to be seen.

For the full text of the decisions, see:

R. v. Marakah, 2016 ONCA 542 (CanLII)

R. v. Jones, 2016 ONCA 543 (CanLII)

R. v. Smith, 2016 ONCA 544 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Should Parents Be Barred from Posting About Their Family Case Online?

FB

Should Parents Be Barred from Posting About Their Family Case Online?

In a prior blog we recounted an unusual case of a 14-year old girl, estranged from her biological father, who had written to the father’s parents asking them for tuition so she could go to private school. The matter eventually went to court, and although the case has many interesting aspects, one of lesser ones is actually the most far-reaching.

The court heard evidence that in her writings and posts online, the 14-year-old girl had referred to the litigation. In reflecting on the potential repercussions, the court considered the likely emotional harm to the father’s other children (who were not aware of the litigation or even of the existence of their step-sister) were they to find out about the proceedings inadvertently. Although the court did not specifically order the girl to stop posting, it did order that part of the court file should be sealed, and that the parties be referred to by their initials in the proceedings and in the documents filed in the public record.

A similar issue arose in an earlier case called C.M.G. v. R.G., where the court file was ordered to be sealed, in view of the possibility that the children of the marriage might suffer emotional harm as a result of the lawsuit, especially if other children learned about the facts of the case. The court described (and acknowledged) the mother’s concerns in this regard:

[The mother] fears that the children’s peers may learn about this proceeding and that they may be subjected to embarrassing and potentially damaging situations as a result. She submits that the nature of the pleadings themselves may result in the children being bullied. She believes this is more likely in an age where information travels very quickly through social media sites and on the internet, particularly among young people. [The mother] believes the children are especially vulnerable to bullying on Facebook. She submits that this is particularly troubling given a recent study by the Canadian Medical Association which she tendered as an exhibit that found that suicide is on the rise among young girls and is currently the second leading cause of death among young Canadians. The [mother] is concerned that the potential publicity generated by this case would be harmful to the children given their heightened vulnerability.

The court acceded to the mother’s request, finding that “protecting the children in such circumstances is a social value of superordinate importance.”

Although neither of these cases involves the court specifically preventing the parties from posting online, they raise a good question: In this modern era of instant information, should Family court cases be sealed to protect children?

And should the parties be banned outright from posting information online?
What are your thoughts?

For the full text of the decisions, see:

C.M.M. v. D.G.C., 2014 ONSC 567

C.M.G. v. R.G., 2012 ONSC 2496

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Confidentiality – video

  

Wednesday’s Video Clip: Confidentiality

In this video we detail how all information you provide to your lawyer is completely private and confidential. All the details of your case will be handled with the utmost confidentiality and respect for your privacy.

The privilege of confidentiality between solicitor and client is, in law, a protection which belongs to the client. Therefore, it is up to the client, only, whether or not that confidentiality is to be waived.

Please remember this when your family members or friends request information directly from your lawyer. Lawyers are frequently contacted by new partners, or other family members who want to discuss your case.

You have to give your lawyer specific instructions to permit that discussion to take place. Also, as the time spent by your lawyer will be time spent on your file, you will be billed for any time spent discussing your case with anyone at your request, or in the context of your file

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Thinking of Snooping on Spouse’s Email? Read This First

snooping

Thinking of Snooping on Spouse’s Email? Read This First

If you are involved in a divorce or separation, you may still have access to your spouse’s personal e-mails, and it may be tempting to read them. But that is precisely what got a husband in trouble with the court in a case called Golchoobian v. Vaghei.

The former couple, who were now involved in divorce proceedings, still owned a clinic together and both continued to work there pending full resolution of their legal issues. The husband was caught on the clinic’s security cameras using the reception-area computer to access his wife’s personal e-mail. He was also heard in an audio recording telling someone else certain information about the wife that he could only have known by looking at her e-mails.

At least one of those e-mails had been written by the wife to her lawyer, and this gave rise to a legal issue about whether by accessing them the husband had deliberately violated her solicitor-client privilege. In other words, the wife had justifiable concerns that the husband had gained access to sensitive and private information contained in hundreds of emails to and from her lawyer, which would reveal her litigation strategy in the divorce case against him.

As a threshold determination, the court held that the e-mail in question involved the wife asking for (and the lawyer giving) legal advice that was intended to be confidential. It was therefore subject to solicitor-client privilege, which is a fundamental aspect of the Canadian legal system designed to preserve the confidentiality of information passing between a client and his or her lawyer.

Next, the court did not hesitate to find that the husband deliberately accessed his wife’s personal e-mails and that his explanation to the contrary (that he had come across them while looking at business e-mails for the clinic) were simply not truthful. This was a deliberate breach of the wife’s solicitor-client privilege on the husband’s part, coupled with lies to try to cover up his conduct, and deserved significant court-imposed sanctions.

Although the court stopped short of imposing a hefty fine or striking out the husband’s court pleadings altogether, it ordered him to pay the wife’s full costs of the motion she was forced to bring because of his misconduct. The court also ordered the husband to provide an Affidavit confirming what documents he obtained and what he had done with them, and required him to give an undertaking to the court that he will not repeat the offensive behaviour.

Finally, the court also warned the husband that:

• He must be vigilant to observe the wife’s right to solicitor-client privilege;

• He must comply with the Family Law Rules, the Rules of Civil Procedure and any orders or judgments;

• He will be exposed to serious consequences should he be found to violate those Rules, judgments or orders;

• Future transgressions would attract more serious consequences, including striking his pleadings;

• The consequence of his conduct would “remain a stigma” throughout the remainder of the proceedings.

For the full text of the decision, see:

Golchoobian v. Vaghei, 2015 ONSC 1840 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Dental Assistant Fired For Being “A Big Threat” to Dentist’s Marriage

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Dental Assistant Fired For Being “A Big Threat” to Dentist’s Marriage

I don’t often write about non-Canadian cases, but an interesting one from the Supreme Court of Iowa recently caught my attention. It involved a dentist who – at his wife’s insistence – had essentially fired his dental assistant for being too attractive. The assistant promptly sued (unsuccessfully, it turns out) for gender discrimination.

The 20-year old dental assistant, who was married with children, had worked for the dentist for about 10 years at the time she was let go. The dentist conceded that she was a good assistant. Still, he had fired her because her tight clothing had become “distracting” to him, and their professional relationship was starting to drift into a grey area. During the last six months that she worked, he and the assistant had started texting each other about both work and personal matters; although most of the texts were about everyday matters, a small number originated by the dentist had involved sexual topics. The assistant did not respond to those, but she also did not complain about them.

The dentist’s wife discovered the texting, and she confronted him. Feeling that the assistant “was a big threat” to their marriage, she demanded that the dentist fire her. That solution was endorsed by the senior pastor of their church, whom they consulted.

The dentist did terminate the assistant, and (when confronted) explained to the assistant’s husband that while nothing was currently going on, he feared that he would try to have an affair with her down the road if he did not fire her. She was immediately replaced by another female dental assistant.

The assistant brought a civil rights complaint under Iowa law, claiming discrimination based on gender: she would not have been fired had she been male. The dentist responded that the grounds for her firing were actually the threat to his marriage, not her gender. The lower court dismissed her claim, and she appealed unsuccessfully.

The court considered the fact situation. In the U.S., unlawful gender discrimination does not arise if a female employee such as the dental assistant is fired because her consensual relationship with the dentist causes personal jealousy. Similarly, sexual favouritism (which involves one employee being treated more favourably than other employees of the opposite sex) is not necessarily discriminatory unless it is sexual conduct that prompts the differential treatment, not merely gender.
Here, there had been no sexual harassment. Rather, the dentist had fired the dental assistant at his wife’s urging because of personal reasons related to his marriage; it was not necessarily motivated by factors relating to the assistant’s gender. This did not amount to “gender discrimination” under Iowa law.

It must be pointed out that the law in the U.S. is very different from that of Canada; it would be interesting to see how this case would play out in this country.

For the full text of this U.S. decision, see:

Nelson v. James Knight DDS, No. 11-1857 (Supreme Court of Iowa, Dec. 21, 2012)  http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20121221/11-1857.pdf
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

How Far Should Computer Privacy Go?

How Far Should Computer Privacy Go?

Just a few weeks ago, the Supreme Court of Canada handed down its ruling on an important issue relating to an individual’s privacy expectations in connection with their use of a computer. Although the question arose not in the context of Family Law but rather in relation to a criminal charge arising from a workplace scenario, the Court’s discussion sheds light on how far privacy rights can potentially be extended in connection with individual computer use in Canada.

In R. v. Cole, a high-school teacher had been criminal charged with possession of child pornography and the unauthorized use of a laptop computer that had been provided to him by his employer. While performing routine maintenance, the schools’ computer technician had discovered that the laptop contained a hidden folder containing nude and partly-nude photos of an under-aged female student. The school principal seized the laptop, together a CD that the technician had made which contained copies of the files. The laptop and CD were given to police, who viewed their contents without having had a search warrant.

At trial, the judge excluded all of the computer material, finding that it had been illegally obtained in circumstances that had breached the teacher’s Charter rights. In particular, two of his Charter rights had been infringed by the seizure and warrantless search:

1) his right to protection from unreasonable search and seizure (under s. 8); and 2) his right to have evidence excluded if it brings the administration of justice in disrepute (under s. 24(2)). The Court of Appeal upheld that decision in part, finding that there was no Charter breach in connection with the CD containing the copied photos, but that the laptop was to be excluded. It also ordered a new trial.

The Supreme Court of Canada essentially found that the evidence should not have been excluded, and confirmed the order for a new trial.

In coming to this conclusion the Court made some very important observations about how computers and the information they contain are used and viewed by contemporary Canadian society: Specifically, it found that computers that are reasonably used for personal purposes – whether at work or at home – contain information that is meaningful, intimate, and which “touch[es] on the user’s biographical core”. This is because internet-connected devices reveal users’ likes, interests, thoughts, activities, ideas, and specific searches for information, and moreover keeps a record of them in the browsing history and cache files.

As such – and even where a computer has been provided by an employer for use at workplace – Canadians have a right to reasonably expect privacy in connection with the information contained on that computer if incidental personal use is allowed (or is reasonably expected). Moreover, the question of who owns the computer is relevant but is not determinative of privacy expectations; instead, there must be consideration of all the circumstances, including contextual and societal factors.

Applying those factors to this teacher’s case, and being mindful that this was a workplace computer, the Court concluded that the teacher may have had diminished expectation of privacy (at least compared to his home computer), but his reasonable expectations had not been eliminated altogether. Furthermore, this reasonable-but-diminished expectation of privacy is still a Charter-protected expectation of privacy under s. 8, and could only be justified in accord with the principles of constitutional law.
With those principles in mind, the Court went on to consider the circumstances of the seizure and search itself, including the beliefs and conduct of the police officer who executed it. Overall, it concluded that the evidence should not be excluded; however, it also affirmed the Court of Appeal’s order for a new trial.

So what does this mean for Family Law?

Again, this was a criminal case, and is not directly relevant to issues arising from the discovery process in Family Litigation. However, the underlying assumptions harken back to my prior Blog posts about the use of social media sites such as Facebook [Russell: Add link] and how personal information contained on those sites can potentially be used as evidence in litigation [Russell: Add link]. It also demonstrates a growing willingness by Canadian courts to acknowledge and incorporate reasonable societal expectations in relation to the use of technology.

In short: the Supreme Court of Canada’s decision in R. v. Cole shows that in these kinds of situations there is a pivotal question: what level of privacy do members of Canadian society reasonably expect in connection with their use of computers – even ones that they do not personally own?

Your thoughts?

For the full text of the decision, see:

R. v. Cole, 2012 SCC 53

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Supreme Court of Canada Clarifies Disclosure Principles

Supreme Court of Canada Clarifies Disclosure Principles

Although it does not spring from family law directly, the Supreme Court of Canada has recently clarified the important governing principles relating to the disclosure of third-party information, and these may have repercussions in terms of government-disclosure and privacy principles in general.

In Merck Frosst Canada Ltd v Minister of Health, the backdrop was simple: the drug company Merck had duly tendered a new drug submission to Health Canada, in keeping with regulatory requirements.   Certain other parties had formally applied for Access-to-Information requests in connection with those drug submissions, under the provisions of the federal Access to Information Act.    Without notifying Merck, Health Canada disclosed the records it held on Merck’s new drug submission to the other parties; needless to say, when it learned of the disclosure Merck objected, claiming that the documents should not have been disclosed at all under certain exemption provisions in the Act, or that at the very least it should have received notice in advance.

In defence of its decision to disclose without notice, Health Canada conceded that the Act incorporated certain third-party exemptions (allowing a government institution such as Health Canada to refuse to disclose a third party’s trade secrets, its confidential financial, commercial, scientific or technical information, or any competitive information that would result in financial prejudice to the third party if it were to be disclosed).  However it claimed – among other things – that it was unable to determine whether non-disclosure was justified in this case.

In assessing each party’s position, the Supreme Court of Canada set out important disclosure and privacy principles that are to govern in such cases.   They are:

• There must be a balance between the duty to protect third-party information on the one hand, and the general principle there should be access to government records, on the other.

• There is no automatic right to notice of disclosure; however, there is a fairly low threshold for the requirement to give such notice.

• Disclosure without notice will be justified only in the clearest of cases.

• A government institution (such as Health Canada) should give notice even where is doubt as to whether the third-party exemption applies.

• The government institution must make a serious attempt to apply the exemption, by reviewing each individual record to determine which portion, if any, may be exempted.

• In keeping with common sense, the third party who requests access to the documents should be as helpful as possible in identifying precisely what information might fall within the exemption, and to identify why disclosure is not permitted.  (Such parties will often be in a better position than the government institution to make these identifications).

• The decision of whether or not to apply an exemption to disclosure under the Act will also be governed by the question of whether disclosure could reasonably expected to cause “probable harm” to a party like Merck.

The Supreme Court of Canada then went on to clarify certain specific aspects of the Act’s exemptions, (such as the meaning to be given to terms such as “trade secrets” and “confidential information”) and provided further insight on the burden of proof on a judicial review of a decision by a government institution such as Health Canada not to acquiesce to the Access-to-Information request.  Ultimately, it held that in this particular case, Merck did not establish that it fell within the third-party extension.

This decision provides important guidelines on the Court’s view the disclosure of confidential information; as it potentially relates to family law litigation, it may have tangential impact on disclosure obligations between parties (particularly where there is a corporate asset), or in connection with the disclosure of health records by medical facilities.

For the full text of the decision, see:

Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (CanLII)  http://canlii.ca/t/fpvd1

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at www.RussellAlexander.com

 

 

 

Tempted to Snoop? Beware of a New Canadian Cause of Action

Tempted to Snoop?  Beware of a New Canadian Cause of Action

Those embroiled in matrimonial disputes and litigation can attest to the fact that emotions run high:  acrimony can breed one-upmanship, and ex-spouses may be consider resorting to less-than-ethical means of obtaining information on their former partners to be used in the dispute-resolution process.

But however tempting it may be, it’s important for an ex-spouse to resist the urge to engage in spying on the other, or to surreptitiously gather information in an unscrupulous manner.   A recent Ontario Court of Appeal decision has essentially recognized a new cause of action for certain kinds of intrusions into individual privacy.

In this case, called Jones v. Tsige, the plantiff Sandra sued her co-worker Winnie, with whom she worked at a Toronto branch of the Bank of Montreal.  Sandra and her ex-husband were embroiled in a dispute over money that he owed her for child support.  As it happens, Winnie had started dating Sandra’s ex-husband.

In an abuse of her position with the bank, and contrary to the bank’s policies, Winnie exploited the access she had to Jones’ personal bank account information, which included transaction details, date of birth, marital status and address.   Indeed, she looked into Jones’ banking records approximately 174 times in a four-year period, apparently (she said) for the purpose of checking to see whether Sandra was receiving child support payments from her ex-husband.

Sandra became suspicious that her account was being monitored, and complained to the bank.  Upon being confronted, Winnie confessed.  She was suspended for a week without pay, and was denied her annual bonus.
Sandra sued Winnie for invasion of privacy, claiming $90,000 in damages.
After considering these facts, together with the history of privacy-related causes of action in Canadian tort law, the Court of Appeal recognized a new cause of action called “intrusion into seclusion”, which is essentially a sub-category of invasion of privacy.
In order to establish a successful claim based in “intrusion into seclusion” a person must prove:

1.   An unauthorized intrusion;

2.  The intrusion was highly offensive to a reasonable person;

3.  The matter intruded upon was private; and

4.   The Intrusion caused anguish and suffering.

(However, the Court pointed out that the “anguish and suffering” will be presumed in cases where the first three elements have been established.)

The Court noted that currently all Canadians are entitled to the benefit of privacy by way of the various protections afforded them through numerous sources which include legislation and case law.   However, this does not mean that the categories of new potential claims for breach of privacy were closed.    Indeed – and despite the fact that there has previously been no free-standing Canadian tort of “invasion of privacy” – the law has recognized similar claims for “nuisance” and “trespass”.

With that in mind, the Court was willing to recognize that the plaintiff Sandra had endured an unauthorized intrusion into her private affairs which caused her to suffer some monetary damages. However, it emphasized that this new tort of “intrusion into seclusion” would only arise for “deliberate and significant invasions” and that damages “will ordinarily be measured by a modest conventional sum”.

Ultimately, after taking into consideration the fact that Winnie had apologized for her conduct, the court awarded Sandra $10,000 in damages.

Given the recognition of this new cause of legal action, what’s the bottom line for family litigants?  It’s simply this:  Think twice before you snoop!

For the full text of the decision, see:

Jones v. Tsige, 2012 ONCA 32  http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0032.htm

 

 

Facebook, Privacy, and Family Litigation: A Few More Points to Know

Facebook, Privacy, and Family Litigation;  Facebook as a Source of Evidence in Family Law: Part 5

In several recent articles I have discussed the increasingly-important role that Facebook (and other social networking sites) can potentially play in family litigation.  Although I have discussed its use in several different contexts, one of the primary uses – or misuses – of Facebook information occurs where one party uses photos and information found on another party’s profile to undermine his or her legal position in a family dispute.

In this context, the existence of Facebook has given rise to several evidentiary issues, including the question of whether and to what extent opposing sides of a litigation dispute can demand access to Facebook information as part of the normal discovery procedure.  

This has arisen recently in a few insurance cases, both from Ontario and other provinces.  (And the evidentiary legal principles derived from those cases have equal applicability to family law matters).    The cases each involved plaintiffs who had been victims of motor vehicle accidents, and had sustained injuries which affected their quality of life and their ability to engage in physical activity.   They were suing their insurers for their damages.  
In each case, the courts had to consider the right of the insurer to have access to the plaintiffs’ Facebook photos, and the evidentiary value of that information.  

In one case called Leduc v. Roman, the plaintiff had posted potentially-relevant photos of himself in the private portion of his Facebook profile only (i.e. the part visible only to his “friends” to whom he had deliberately granted access).   The question was whether the court should grant the insurer access to these.   It held that an individual user’s Facebook “privacy settings” were irrelevant to the court’s ability to order the information and photos produced.   The mere fact that the plaintiff was willing to “share” his photos and other personal information with the public via a social networking website – even if only to a limited pool of “friends” – meant that it was reasonable for the court to conclude that there would be relevant information on the quality of life that the plaintiff was enjoying post-accident.

In Sparks v. Dube the question was whether a court could make a preservation order to pre-empt the removal of Facebook evidence.  There the plaintiff – despite claiming that her range of physical activity was limited due to the car collision – had posted post-accident photos on Facebook showing her engaged in various adventure activities such as “ziplining”.   The insurer had discovered the photos and was concerned that the plaintiff would remove them prior to trial.  (Indeed, this precise thing had happened in another case called Kourtesis v. Joris:  before the court could make an order granting the insurer access to the incriminating photos, the plaintiff had taken them down from Facebook, and they could not be recovered.  They were therefore lost as evidence.)  The court crafted a solution which essentially involved interjecting an impartial third-party lawyer to carry out the necessary tasks:   it ordered that the lawyer representing the injured plaintiff should himself get an independent lawyer who would serve the plaintiff with the order to download all her private and public Facebook materials; moreover the plaintiff was specifically disentitled from receiving any advance notice of the order that would be served on her.

Finally, the issue of the precise scope of such a preservation order came up in the decision in Schuster v. Royal & Sun Alliance.   There, the insurer had asked the court for an injunction – without giving the plaintiff/accident victim any notice whatsoever– which would not only ensure that the Facebook evidence was preserved, but which would also force the plaintiff to hand over her Facebook username and password, thus giving the insurer full access to both the public and private portions of her profile.   The court refused to go so far on an injunction-without-notice basis, since it would allow the insurer to go on a “fishing expedition”.  Instead it ordered the plaintiff to simply give the insurer a list of the documents/information that could be found on her profile.  The relevancy of each would be determined by the court at a later date.   (This principle was followed in another recent Ontario case called Re McDonnell.)

Collectively, these cases give rise to several important points for family law litigants:

• Any information on Facebook or other social networking websites is potentially vulnerable to being produced in a court action.     This includes photographs, commentary and videos.

• The location of the information – i.e. public or private profile – is irrelevant.  It is all subject to being ordered produced by a court, if it is potentially relevant to the litigation.

• A court may potentially make such a preservation order without giving the other party any notice; this serves to prevent the removal of incriminating, embarrassing or inappropriate information before the court order can be carried out.

• However, this does not mean that party with the order will be handed the other party’s username and password, and given carte blanche access to his or her Facebook profile; rather, the legal relevance for litigation purposes of the information contained on it will still have to be examined, just like in any other trial.

For the full text of these decisions, see:

Leduc v. Roman, 2009 CanLII 6838 (Ont. Div. Ct.)

Sparks v. Dube, 2011 NBQB 40

Kourtesis et al. v. Joris, [2007] O.J. No. 5539 (S.C.J.)

Schuster v. Royal & Sun Alliance Insurance Co. [2009] O.J. No. 4518 (S.C.J.)

Re McDonnell, [2011] O.J. No. 5689 (S.C.J.).