In this heart surgery medical malpractice case(Dosanjh v. Leblanc and St. Paul’s Hospital,2011 BCSC 1660) the claimant alleges suffering a stroke resulted in permanent physical and cognitive disabilities after open heart surgery to repair a hole in his heart. The claimant sued the doctor, nurse, technician, and hospital alleging an air embolism was allowed to enter the plaintiff’s blood stream thereby causing a stroke. 
the lawyer’s  for the hospital wrote to the personal injury claimant’s lawyer demanding, under Rule 7-1(11), the claimant  provide documents from the injury claimant’s hard drive, social media accounts, iPhone and digital camera that relate to matters in question in the litigation, including the claimant’s health, mental state and her ability to be employed. The insurance company lawyers were seeking an order that the claimant not delete any content from her Facebook and Twitter profiles, including wall posts, news feeds, profile information, friend lists and photo album contents.
The Court dismissed the request citing the new test for production of a document and also took into account the issue of privacy in the context of personal injury litigation. With respect to the test for production of documents the court found,

[20]  As to the form and substance of the request, Master Bouck referred to Master Baker’s decision in Anderson v. Kauhane and Roome (unreported, February 22, 2011, Vancouver Registry No. M103201) at paragraph 4 where he said:

…there is a higher duty on a party requesting documents under … Rule 7-1(11) … they must satisfy either the party being demanded or the court…with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed…”

[21] It is evident from the reasons in Crowe that Master Bouck determined that the new Rules as revealed by Rule 7-1, rather than Rule 26(11) of the old Rules, has a new test for the production of a document.  Whereas the old Rules required the court to consider whether the documents had relevancy, the test now as set out in 7-1(1)(a)(i) is whether or not the documents can prove or disprove a material fact….

[28]  The defendant has not indicated the material fact or facts which it believes can be proved by searching the plaintiff’s personal computer and her social media sites.  Rather, the defendant merely says that health, enjoyment of life and employability are in issue.  Surely more is or should be required to meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in issue in order to infringe on a litigant’s privacy.

With respect to the issue of privacy Master Taylor was quick to point out the importance of our Canadian Charter values and stated,

[23]  The issue of privacy was also alive in Park v. Mullin where at paragraph 21, Dorgan, J. said this:

[21] That the issue of privacy is a robust and real issue should be taken into account on an application such as this.  In M. (A.) v. Ryan, [1997] 1 S.C.R. 157, 143 D.L.R. (4th) 1 (S.C.C.), McLachlin J. commented on a party’s privacy interests in the context of an application for third party clinical records under Rule 26(11). In determining whether the records at issue were privileged, McLachlin J. stated the following at para. 30:

            …the common law must develop in a way that reflects emerging Charter values…one such value is the interest affirmed by s. 8 of the             Charter of each person in privacy… And further at para 38:

            …I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict.  But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.

[27]   It was at least 14 years ago when McLachlin, J. spoke of the interest of each person in privacy as a Charter value.  That interest still applies today.

[29]   To be able to obtain a litigant’s private thoughts and feelings as expressed to friends or family members after the fact is, in my view, similar to a party intercepting private communications of another party.

[30]    I am unable to envisage any rational justification for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individual’s general health, enjoyment of life and employability are directly at issue.  Merely because a record may be made of the communication shouldn’t make it any different than a private telephone conversation.  If not, surely applications in civil proceedings for recordings of private communications can’t be far behind.

The Court was satisfied that the defendant’s application was entirely too broad and lacked the focus required by Rule 7-1(1)(a)(i).  In fact the master called the application a, “classic fishing expedition, but without the appropriate bait”.  The application that the personal injury claimant  produce her Facebook and Twitter profiles and all related posts and photographs was dismissed. Posted by Mr. Renn A. Holness


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