Facebook and My Space Users Beware – Your Personal Profile as Evidence in a Personal Injury lawsuit

Case Comment – Leduc v. Roman, 2009 (Ont. S.C.)

The rise of these social interaction websites has been chronicled for some time and even for those who do not use these sites, they are familiar.  With MySpace being purchased for $580M (US) in 2005, a small portion of Facebook being sold to Microsoft in 2007 (valuing all of Facebook potentially at $15B) and U.S. Presidential candidate Barack Obama utilizing the power of the internet to his campaign’s benefit, the power of the internet to spread information and gather people is acknowledged.

Yet in the context of a lawsuit, is the personal information which you’ve placed on the internet (i.e. on your personal Facebook page) relevant in your personal injury lawsuit?  In other words, is your personal page really personal?

In Leduc v. Roman (2009 Ont. S.C.), the answer is no, your Facebook page is not really personal if you start a personal injury lawsuit.

In this case, defence counsel smartly looked up the plaintiff on Facebook and found that a personal page was posted.  As is common practice, the plaintiff allowed some information to be “public” and made the rest of their information “private” and only accessible to their online “friends”.

The defence brought a motion seeking preservation of the private Facebook pages, as well as a listing of those materials in the plaintiff’s Affidavit of Documents.  Partial relief was granted by a Master and the defendant appealed the part of the Master’s decision denying the right of examination on the private Facebook pages which would be eventually listed in the supplementary Affidavit of Documents.

On appeal, Brown, J. found that the defendant could examine the plaintiff on these further ‘private’ pages on Facebook, as they might be relevant to this personal injury lawsuit.

The net effect of the decision – the plaintiff consented to an order whereby he listed the ‘personal’ Facebook pages in their supplementary Affidavit of Documents.  On appeal, defence counsel was granted permission to ask questions of the plaintiff concerning those same listed pages, after which the determination of whether those pages were to be produced in the litigation could be made (or a further motion brought).

This case is useful to all lawyers who practice personal injury law.

Gregory Chang

Toronto Insurance Litigation Lawyer