Can information on Facebook be used in your Ontario personal injury case?
There has been some recent discussion surrounding the use of an individual’s Facebook page during Ontario personal injury litigation. The question is whether or not an injured person’s Facebook page is relevant to litigation and if it should be disclosed. The old Rules of Civil Procedure required that information pass a “semblance of relevance” test which was quite a low standard. Under these rules, almost any information could be considered relevant, including any and all information on an individual’s Facebook page. Because most personal injury cases involve discussions about the injured person’s ability to enjoy life and engage in social activity, one’s Facebook page arguably becomes relevant.
The new Rules of Civil Procedure, which are effective as of January 2010, hold a slightly higher standard of relevance. One judge commented that the semblance of relevance test was too broad and loose and not necessary. Although this change has been made, it is not clear how it applies to requiring the disclosure of information from Facebook. It will likely be decided on a case by case basis until a more specific rule is created regarding Facebook and other social media websites.
Because of the uncertainty of whether or not information on an injured person’s Facebook page will be used in litigation, many lawyers are telling their clients to either stop using Facebook or to at least be aware that whatever they write or whatever pictures or videos they post, may be used in court. Lawyers are also advising their clients to place stricter privacy settings on their accounts so that the general public can’t access their information.
The question of whether or not information from Facebook should be disclosed in court is a difficult one. As technology and new forms of communication continue to arise, the law and the courts are going to have to reassess some of the ways in which litigation is carried out. Whatever the final decision on the Facebook issue, hopefully it will be in the injured person’s best interest.
In the mean time, assume that every single thing you post on Facebook (or Twitter) will be seen by the insurance company, even under privacy settings.