Deciding Disclosure Requests where Objection based on Privacy raised

A Balancing of Evidential Value and Potential Prejudice

In Mohamud v. Juskey,[1] released August 2023, the court set forth a new legal framework for disclosure requests in the civil context where a party objects on privacy grounds. The plaintiff sued the defendant for a MVA wherein he crossed into her lane and caused her to crash under wet road conditions. The plaintiff allegedly sustained a concussion, whiplash, chronic pain, soft-tissue and psychological injuries (e.g., depression). She sued the defendants – being the driver and the owner of the vehicle involved – for general damages, loss of enjoyment of life, loss of income and future care costs. The trial is scheduled for mid-November 2023. This motion concerned the defendants’ request of the entire digital copies of the plaintiff’s social media Facebook and Instagram files.

There are two aspects to a disclosure request. For the party seeking the disclosure, the legal test is whether or not the records sought to be produced have relevance (in the sense of making any fact in dispute any more or less likely to be true than without that evidence). For the side objecting to the request, there has been no framework against which to assess assertions of privacy. Since the goal of the adversarial system is to arrive at the truth, there has always been a reduced expectation of privacy. However, the court here noted that, just because someone brings a legal claim, that should not necessarily mean their privacy interest is reduced to zero. So, in this case, the court fashioned a legal test that takes into account an objection to disclosure based on privacy.

The court noted the legal test in place in the criminal context (known as the O’Connor framework) where, if an accused person seeks disclosure of third-party (e.g., hospital) records of the complainant, the court must (1) determine if the records are relevant to a live issue in the proceedings and then (2) balance (a) the accused’s right to make full answer and defence against (b) the privacy and dignity interests of the complainant. Similarly, in the civil context, where a party to a civil action resists disclosure on privacy grounds, the new test is that the court must balance the probative value of the records sought against the prejudice (or harm) that would ensue to the party resisting disclosure, or to the litigation process itself, should production be compelled.

The defendants argued that a photo posted publicly on the plaintiff’s Facebook was relevant to her claim about loss of enjoyment of life and that they should have the complete social media file. The plaintiff argued that the evidence sought had little or no probative value and that the request was a significant intrusion upon her privacy. The motion judge agreed that the publicly-available photo of the plaintiff, who was depicted sitting on a beach during a vacation, which was filed by the defence in support of the motion, was indeed relevant. It was reasonable to infer that similarly relevant photos are on the private section of her accounts. But the defendants were not entitled to her entire social media file. The plaintiff was ordered to disclose all relevant photos.

[1] Mohamud v. Juskey, 2023 ONSC 4414 (CanLII) (https://canlii.ca/t/jzkp0)