In case you were wondering, you really shouldn't expect that anything you post on your MySpace page will be kept private. If you are in the middle of litigation alleging that you're disabled, don't post pictures of your skiing vacation.

This recent case from earlier this month in Ontario is, I think, the first Canadian case to mention MySpace. The defendants attempted to use info from the plaintiff's MySpace page as a basis for further discoveries.

Weber v. Dyck, 2007 CanLII 22348 (ON S.C.)

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Date: 2007-06-12

Docket: 05-CV-4343CM

2007

Weber v. Dyck

Ontario Master

Master L.A.M. Pope

Judgment: June 12, 2007

Docket: 05-CV-4343CM

Master L.A.M. Pope:

1 This action was scheduled for trial at a settlement conference held on December 1, 2006. The trial is number one on the trial list to commence the week of June 18, 2007. The defendants seek leave to bring this motion and for production from the plaintiff of information and documents pursuant to Rule 48.04(1). The information and documents relate to three activities of the plaintiff that took place subsequent to the plaintiff's examination for discovery on October 13, 2005.

2 The relief sought subparagraphs 1 (iv) and (v) of the Moving Party's Record are no longer in issue for the purposes of this motion.

3 This action arises out of a motor vehicle accident that took place on February 11, 2003 in which the plaintiff alleges that she sustained serious and permanent injuries to her left wrist and to her body, as well as emotional and psychic trauma. The action is governed by the Bill 59 insurance regime and as such the plaintiff has the onus to establish that her injuries meet the "threshold"; that is, that she has sustained a permanent serious impairment of an important physical, mental or psychological function within the meaning of section 267.5(5) of the Insurance Act in order for her to be entitled to damages.

4 At that time of her examination for discovery on October 13, 2005, the plaintiff was enrolled in year one of the Masters of Business Administration (Co-op) program ("MBA") at the University of Windsor. She testified at her examination that she earned part-time income by teaching piano and playing piano at weddings and other functions, what her plans were for employment after graduation and her vacation plans.

5 The following is the defendants' evidence that gave rise to this motion. The defendants learned that the plaintiff had a MySpace web page wherein she posted photographs of herself and announced certain information about herself. The undated photographs are of the plaintiff, for example, involved in what can be described as a somewhat physical activity in the Swiss Alps, in Paris, playing piano and at her graduation. The information exchange on the web page indicates that the plaintiff resides in Toronto and has a "new job." Further investigation revealed that the plaintiff worked as a Brand & Marketing Analyst for Level 5 Strategic Brand Advisors, that she recently completed her MBA specializing in marketing and international strategy and that she earned an ARCT (Associate of Royal Conservatory Teachers) designation. By letter dated March 30, 2007, the defendants requested production from the plaintiff of certain documents and information arising out of the information on the MySpace web page. Having received no response to that letter, Mr. Dycha wrote again to Mr. Leschied by letter dated May 2, 2007 and in that letter, Mr. Dycha added to his request for production additional documents and information.

Should leave be granted pursuant to Rule 48.04(1)?

6 The defendants seek leave to bring this motion for production pursuant to Rule 48.04(1) which provides that the consequence of a party setting an action down for trial or a party consenting to an action being placed on a trial list (as is the case here), is that the party shall not initiate or continue any motion or form of discovery without leave of the court. (emphasis added).

7 As this case is subject to the civil case management rules of Rule 77, it was placed on the trial list at the settlement conference held on December 1, 2006. There is no evidence that either party did not consent to the action being placed on the trial list. In my view, the consequences of placing a case managed action on a trial list are more serious than with a non-case managed case. This is evidenced by comparing the provisions of Rule 48.07 with subrules 77.14(2) and (4). The latter rules require a certification by the plaintiff that all examinations, production of documents and motions arising out of examinations and production of documents have been completed before the settlement conference date. Essentially, the parties who consent to an action being placed on the trial list declare that they are ready for trial. Subrules 77.14(2) and (4) support the purpose of the civil case management rules of reducing unnecessary cost and delay, facilitating early and fair settlements and bringing proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding. In this case, the parties consented to the case being placed on the trial list with two exceptions as requested by the defendants and as ordered by Justice Nolan; firstly that the plaintiff deliver her x-rays by December 15, 2006, and secondly that the case be assigned an alternate trial date in the event the defendants did not have their expert reports by the June 18, 2007 trial list. The x-rays were delivered by the date ordered.

8 In order for the plaintiff to succeed in obtaining the right to further production of information and documents after a case has been placed on a trial list, they must first meet the requirements of Rule 48.04(1). The test for granting leave was aptly described by E.M. Macdonald J. in Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] 11 C.P.C. (3d) 236 (Ont. Gen. Div.) at 239, as follows:

The authorities make it clear that setting a matter down for trial is not a mere technicality of procedure. Before it can be vacated to permit any further discovery or other interlocutory proceedings, there must be a substantial or unexpected change in circumstances such that a refusal to make an order under s. 48.04(1) would be manifestly unjust.(emphasis added)

9 Plaintiff's counsel argues that the defendants were aware at the time of the mediation on July 26, 2006 and at settlement conference on December 1, 2006, that the plaintiff had graduated and therefore they should have brought this motion before agreeing to place the matter on the trial list. They further argue that given that the defendants consented to placing this matter on the trial list with the knowledge of the plaintiff's graduation, they should not be granted leave.

10 Firstly, there is no evidence before me of the above-noted allegations of the plaintiff. Secondly, it appears that Mr. Leschied provided Mr. Dycha with a copy of the plaintiff's transcript by letter dated December 20, 2006, several weeks following the settlement conference, (when the matter was placed on the trial list.) Moreover, the only evidence before me is that the defendants learned that the plaintiff had graduated on or about December 20, 2006, and that she had obtained a job and moved to Toronto when they discovered her MySpace web page. Therefore, it is my view that not only has the plaintiff had a substantial change in circumstances since this mater was placed on the trial list relating to her educational status, there has been a substantial change relating to her career, employment status and her place of residence. Albeit not all of these changes could be considered unexpected given her educational status at the time of her examinations for discovery, the test for leave does not require that the change in circumstances be substantial and unexpected. Therefore, I find that because there has been a substantial change in circumstances of the plaintiff since placing this matter on the trial list, it would be manifestly unjust in these circumstances not to grant leave for the defendants to bring this motion.

Rule 48.04(2)(b)(i) exception

11 The defendants submit that this motion falls within the exception set out in subrules 48.04(2)(b)(i). That rule provides that notwithstanding this matter being placed on the trial list, the plaintiff has a continuing obligation, pursuant to Rule 30.07, to disclose further relevant documents that come into her possession after serving an affidavit of documents or discovers that the affidavit is inaccurate or incomplete. If the plaintiff fails to make production of relevant documents she will be subject to the consequences set out in Rule 30.08. Rule 1.03 provides that a "document" includes data and information in electronic form.

12 The exception allowed in Rule 48.04(2)(b)(i) relates to subsequently discovered documents. The reason for this exception was explained by Master Dash in White v. Winfair Management Ltd., (2006) 16 C.P.C. (6th) (S.C.J.) at 48 as follows:

If a document is discovered and produced by the defendant after the plaintiff has completed his oral and documentary discovery and set the action down, it would constitute an unexpected change in circumstance that could mandate leave for further discovery thereon.

13 The defendants have requested the following documents:

1. a copy of the plaintiff's file from any employment placement agencies;

2. a copy of the plaintiff's current employment file and contact information relative to her immediate supervisor and individual in charge of Human Resources;

3. all photographs and video recordings from trips.

14 The defendants clarified that they were only seeking these documents for the last year and a half.

15 The first two documents set out above were not in the plaintiff's possession at the time of her examination for discovery on October 13, 2005 because they would have been created as a result of her graduating in the summer of 2006 and her subsequent job search. I am inclined to order production of these documents given the change in circumstances in the plaintiff's employment status and the fact that her income and job responsibilities are relevant to the threshold issue and the assessment of damages. Furthermore, there is no evidence before me that the defendants were aware that the plaintiff had graduated and/or had obtained a job at the time of the settlement conference on December 1, 2006. In fact, the plaintiff's evidence is that she did not provide the defendants with a copy of her transcript until December 20, 2006, following the settlement conference, as evidenced by Mr. Lescheid's letter of that date.

16 Regarding the third request above, clearly the photographs and video recordings requested were not in the plaintiff's possession at her examination for discovery such that the defendants could have requested them. The defendants urge me to grant the order based on the reasoning of the Master in the British Columbia case of Watt v. Meier , 2005 CarswellBC 3302 (S.C.) wherein it was the Master's opinion that in the hypothetical case where the main issue were a broken leg, where the plaintiff was claiming a significant disability and the defendant wanting to challenge the extent of the disability, then it would seem inherently possible that photographs from a vacation, where you may find somebody swimming or playing beach volleyball or all sorts of activities traditional on holidays, might be highly relevant to the question of the degree of a broken leg disability. I agree with the Master's reasoning; however, based on the reasons for my decision which follow, I have distinguished the Master's hypothetical case.

17 The defendants also rely on another case from the British Columbia Supreme Court of Tupper (Guardian ad litem of) v. Holding, [2003] B.C.J. No. 216wherein the plaintiff was ordered to produce vacation photographs. In that case the plaintiff sought damages for loss of her ability to enjoy life. The court stated that the documents sought include photographs of the plaintiff on vacation, posing or sitting with friends on the beach, and in front of various tourist sites; that is, they show her enjoying life. The court held that it was reasonable to conclude that the vacation photographs may assist the defendant in its defence of the plaintiff's claim. In both this case, as well as the Watt case, the motions were brought before the actions were set down for trial; therefore, the test for leave was not an issue before those courts.

18 I decline to order production of the photographs and video recordings for several reasons. Firstly, the parties consented to this action being placed on the trial list; therefore, they were deemed to admit that they were ready for trial. Secondly and more importantly, the defendants did not request production of the plaintiff's photographs and video recordings of her trip to Vancouver which she took the year before the examination. I fail to understand how the defendants would be entitled to photographs and video recordings of trips the plaintiff took after her examination for discovery when they did not see the relevancy in seeking production of photographs and video recordings of her pre-examination trips. The change in circumstances of the plaintiff relate to her career and employment status and has no relationship to her ability to travel which she testified to the fact that her injuries do not impact on her ability to travel. Lastly, the defendants have several images of the plaintiff from her MySpace web page with which they can cross examine the plaintiff at trial. This appears to be a form of further discovery to which the defendant is not entitled.

Rule 48.04(2)(b)(iv) exception

19 The defendants submit that this motion falls within the exception set out in subrule 48.04(2)(b)(iv). That rule provides that subrule (1) does not relieve a party from any obligation imposed by Rule 31.09 to correct answers given at an examination for discovery notwithstanding that the case was placed on the trial list. They further submit that in addition to the threshold issue at trial, another issue will be to what extent, if any, the plaintiff's avocational pursuits have been affected by her alleged injuries.

20 The information sought by the defendants is as follows:

1. a list of places the plaintiff sought employment;

2. details of the plaintiff's piano performances and piano lessons including sufficient details to identify and locate the persons for whom the plaintiff performed, along with the amounts received in compensation for services;

3. details of the plaintiff's travels for recreation or otherwise including particulars engaged in during her travels.

21 The defendants clarified that they were only seeking the above information for the last year and a half.

22 The questions and answers at issue are as follows:

Re: Career goals

154. Q. What's your ultimate ambition in terms of a career?

A. I'd like to get into international marketing, work for an international firm.

155. Q. Well, what do you mean by "international marketing"?

A. Global brand strategy.

156. Q. Okay. I'm going to guess that in order to do that you're going to have to potentially move from the city?

A. Yes.

157. Q. And do you have any objection to doing that?

A. No.

Re: Travel since the accident

377. Q. And have you had to travel anywhere since the accident for recreation or otherwise?

A. yes. I've travelled --

378. Q. (Interposing) Where have you been?

A. -- last September. I went to Vancouver last September.

Re: Piano

45. Q. Right, and the material that we've been given indicates that you also like to play piano. You teach piano --

A. (Interposing) I teach piano part-time.

387. Q. And you've got, you're still teaching the kids, right?

A. Correct.

388. Q. And how many hours?

A. Between 12 and 15. It's three, three evenings a week.

23 There is no evidence before me to suggest that these answers were not correct or were incomplete when given and that any time thereafter they became incorrect. Certainly certain aspects of the plaintiff's life have changed since her examination but that alone does not mean that her answers were incorrect or incomplete when made on October 13, 2005.

24 In particular, regarding the request for a list of the places the plaintiff sought employment, it is my view that notwithstanding the fact that there has been a substantial change in circumstances, this information is not relevant to any of the issues in this action therefore it is not to be produced. Regarding the requests for production of information about the plaintiff's piano performances, piano lessons and trips, I refuse to grant these orders because it can hardly be said that the defendants are now entitled to this information when they failed to ask for the same information for the period of time prior to the examination for discovery. To order production of this information would constitute a further form of discovery to which the defendant is not entitled.

Costs

25 Both parties filed Cost Outlines, however neither of them were complete in failing to specify the partial indemnity rate and actual rate or any of the points listed which are to be made in support of the costs sought. Both counsel attached a billing statement; however, a billing statement is not a substitute for setting out the partial indemnity and actual rates. These rates are some of the considerations in determining the cost order and without them an appropriate amount for costs cannot be determined. The Court cannot be expected to extrapolate the hourly rates from the billing statement and then calculate the partial indemnity rates. As the Costs Outlines were essentially useless for the purpose intended by the Rules, and given that the defendants were successful, at least in part, with their motion, costs are fixed at $750.00 payable by the plaintiff and the defendants forthwith.

Order

26 There shall be an order as follows:

1. The plaintiff shall produce the following within 7 days;

a) a copy of the plaintiff's file from any employment placement agencies; and

b) a copy of the plaintiff's current employment file and contact information relative to her immediate supervisor and individual in charge of Human Resources;

2. Costs to the defendants fixed in the amount of $750.00 payable forthwith.

END OF DOCUMENT

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