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A New Ontario Court Decision on Social Media Disclosure in Personal Injury Cases

Social Media

When you initiate a lawsuit for personal injury, this triggers the “discovery” process that the parties have to go through. This process involves disclosing all the relevant information relating to the lawsuit, including medical records, income documents, pictures of the accident and/or injuries, the record of driving convictions related to the accident in car accident cases, and on and on. As the law tries to keep up with technological and social trends, a new decision by the Ontario Superior Court sheds light on how social media can be treated as evidence in these kinds of lawsuits.

In Mohamud v. Juskey (2023), ONSC 4414, Haweya Mohamud sued Christopher Juskey for a car accident they were involved in. Ms. Mohamud claimed that Mr. Juskey was at fault for the accident, and claimed that the accident resulted in her suffering a number of injuries. Mr. Juskey brought a motion to the Ontario Superior Court to request that the Court order Ms. Mohamud disclose digital copies of her Instagram and Facebook accounts on the basis that they contain evidence relevant to Ms. Mohamud’s claim. Specifically, the defense argued that, upon reviewing the publicly available photos on Ms. Mohamud’s Facebook page, they showed Ms. Mohamud on a beach vacation indicating that she is not as injured as she claimed to be. The defence argued that Ms. Mohamud’s private Facebook and Instagram photos would likely include additional similar photos that will speak to the extent of Ms. Mohamud's injuries and limitations.

The plaintiff argued against disclosure of these private photos, claiming it was an intrusion on Ms. Mohamud’s privacy.

The Court’s analysis quickly determined that the content of the social media pages was in fact relevant, noting that relevance has a very low threshold, and that any evidence 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”.

Moving on to the next step of analysis, the Court looked at the probative value versus the prejudicial value of ordering the disclosure of the requested evidence. To balance the privacy interests of Ms. Mohamud, the Court ultimately decided that it would not allow a “blanket order” that would allow the defendants full access to all of Ms. Mohamud’s social media content. Instead, the Court ordered that the plaintiff produce a new Affidavit of Documents which lists all the photographs in her social media accounts.

This decision underlines the tension between the privacy of plaintiffs and their right to make claims for injuries they suffered. Whether it be through private investigators conducting video surveillance of a plaintiff or defense lawyers sifting through plaintiffs’ private social media accounts, there is a certain sacrifice of privacy that the law requires one to make before they can successfully pursue personal injury claims. It also highlights the need to be cautious before pressing “post”.

If you have been involved in an incident causing you injury, it's always best to consult a professional lawyer who has experience arguing these types of claims to protect your interests. Please contact our team at JEWELL RADIMISIS JORGE LL.P for a free initial consultation at 1 (855) 546-2525.

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