Written by: Nick Todorovic and Jamie Davison, Student-At-Law
The Ontario Superior Court of Justice addressed the disclosure of social media content, in the case of Mohamud v. Juskey. The court ruled on the defense’s motion for the production of the contents of the Plaintiff’s Facebook and Instagram accounts on the grounds that they revealed her injuries were not as severe as she was alleging. This case not only highlights the role social media can play in legal proceedings, but also sheds light on the complex interplay between privacy rights and the quest for evidence.
The lawsuit revolved around a motor vehicle collision in Richmond Hill, where Haweya Mohamud alleged that Christopher Juskey lost control of his vehicle on a wet road, and collided with her vehicle. The collision left Ms. Mohamud with a concussion, whiplash, soft tissue injuries, chronic pain, and psychological trauma. Seeking $1.3 million in damages against Mr. Juskey and the owner of the Juskey vehicle, Ms. Mohamud alleged that she had lost functionality, enjoyment of life, and her ability to work.
The defense brought a motion requesting that the Plaintiff be compelled to disclose digital copies of her Facebook and Instagram accounts. Their argument was that these accounts contained evidence, specifically photos, that depict Ms. Mohamud’s activities after the accident. In support of their motion, they argued that such pictures were pertinent to assessing her claims for damages resulting from the motor vehicle accident. Specifically, after having reviewed Ms. Mohamud’s public-facing Facebook photos, the defense discovered that she had travelled to a beach vacation after the collision, contending that she may not be as injured as she alleged.
The Court’s decision hinged on the assessment of relevance and the potential for prejudice, especially with regard to privacy. The analysis conducted was as follows:
- Relevance Assessment: The court emphasized that Rule 30.02(1) of the Rules of Civil Procedure mandate the disclosure of all relevant and material documents in a civil action. The Court stressed that the threshold for relevance is quite low; “[e]vidence is relevant if, as a matter of logic and human experience, it renders a fact in issue more or less likely than it would be without the evidence”.
- Balancing Prejudice and Probative Value: Under 29.2.03(c), when a party resists disclosure of evidence deemed to meet the threshold for relevance, the court must then balance the probative value of the sought-after records against the potential prejudice to the party resisting disclosure or to the litigation process if production was ordered.
- Prejudice Due to Intrusion of Privacy: In this case, the Plaintiff alleged that the potential undue prejudice was due to an intrusion of her right to privacy. The Court acknowledged that balancing potential prejudice would include weighing any possible privacy concerns against the probative value of the evidence. The Court further acknowledged that a privacy claim within the context of disclosure in a civil proceeding is intricate, and Ontario civil law seemingly lacks a clear legal framework for analyzing such claims. Importantly, Ms. Mohamud did not assert privilege in this instance.
The Court agreed with the defense that the Plaintiff’s pleadings placed Ms. Mohamud’s functionality, enjoyment of life, and ability to work at the center of the dispute. The public photos from Ms. Mohamud’s Facebook profile of her seemingly travelling and enjoying life were determined to be relevant to one or more issues raised by these pleadings. In other words, as the Plaintiff had claimed that Ms. Mohamud could no longer enjoy her life, and since there were photos depicting her seemingly enjoying her life post-collision, these photos were relevant to the determination of this issue.
The Court went further to hold that, based on these public photos, it was reasonable to infer that the private areas of the Plaintiff’s Facebook and Instagram accounts would contain content similar to that shared in the public portion. Therefore, the court was satisfied that these accounts likely contained post-collision photographs of the Plaintiff engaging in activities pertinent to the ongoing legal proceedings.
However, the court did not grant a blanket order allowing the defense to sift through the entire contents of the Plaintiff’s social media accounts. Instead, in an attempt to balance Ms. Mohamud’s privacy with the disclosure of relevant and material documents to the issues in contention in this action, the Court ordered Plaintiff’s counsel to produce an affidavit listing all relevant photographs posted on her social media accounts in her possession, control, or power.
The Ontario Superior Court’s ruling in Mohamud v. Juskey underscores the evolving role of social media in the legal landscape, and specifically in personal injury cases. This decision sets a precedent for how courts in Ontario will handle similar requests for social media disclosures in the future, emphasizing the importance of a case-by-case analysis to determine relevance and minimize undue intrusions into personal privacy. The decision serves as a reminder for us all to be mindful of our lack of privacy the moment we press post.
 See the following cases where judges appear to have accepted that the court has a discretion to conduct a balancing of probity and prejudice in assessing whether the contents of social media accounts should be disclosed: Isacov v. Schwartzberg, 2018 ONSC 5933; Jones v. I.F. Propco Holdings (Ontario) 31 Ltd., 2018 ONSC 23; Stewart v. Kempster, 2012 ONSC 7236.