Sparks v. Dubé, (2011) 374 N.B.R.(2d) 26 (TD)

• Judge: Ferguson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: December 09, 2010
• Jurisdiction: New Brunswick
• Citations: (2011), 374 N.B.R.(2d) 26 (TD);2011 NBQB 40

Sparks v. Dubé (2011), 374 N.B.R.(2d) 26 (TD);

    374 R.N.-B.(2e) 26; 965 A.P.R. 26

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] N.B.R.(2d) TBEd. FE.016

Renvoi temp.: [2011] N.B.R.(2d) TBEd. FE.016

Erica Alicia Sparks (plaintiff) v. Paul-Albert Dubé (defendant)

(W/C/07/10; 2011 NBQB 40; 2011 NBBR 40)

Indexed As: Sparks v. Dubé

Répertorié: Sparks v. Dubé

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

Ferguson, J.

February 4, 2011.

Summary:

Résumé:

The plaintiff sued the defendant for damages for injuries suffered in a motor vehicle accident. The plaintiff claimed lasting and debilitating injuries resulting in "serious impairment" as defined by s. 2(2) of the Injury Regulation, precluding application of the $2,500 soft tissue injury damage cap. In preparation for discovery, the defendant hired an investigator to find any personal web pages the plaintiff had on any social networking sites. Personal web pages were found on Facebook and LinkedIn. The investigator accessed only those web pages accessible to the general public. There was no attempt to access data for which privacy settings limited access to certain persons, such as invited "friends". The Facebook web page included pictures of the plaintiff using a zip line, crawling on her hands and knees and engaging in other social and recreational activities. The pictures were posted after the accident. If the photographed activities were post-accident, they had a "semblance of relevance" to the plaintiff's claim of "serious impairment". A similar "public space" web page was accessed on the plaintiff's LinkedIn account, but no similar pictures or data was found. The defendant wished to preserve his right to seek disclosure of relevant information, not available to the general public, on the social networking sites. Since data, if erased, would be practically non-recoverable, the defendant moved ex parte for a number of orders to compel the plaintiff to download and preserve, without advance notice to the plaintiff and under the direct supervision of her lawyer, the contents of all of the social networking sites (i.e., information to which access was restricted). After downloading, the defendant sought to have the content sealed until a production hearing was held to determine whether the defendant was entitled to disclosure to prepare for discovery and trial.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the ex parte motion respecting the plaintiff's Facebook web page only. An ex parte order was necessary to preclude the unacceptable risk of the plaintiff deleting the contents of her Facebook web pages if given advance notice of the defendant's intention to seek disclosure. A preservation order or, alternatively, an interlocutory injunction, was granted to compel the plaintiff to preserve and maintain the entire contents of her Facebook account. The order required the plaintiff's lawyer to arrange for the plaintiff to attend for a meeting for the purpose of accessing and downloading the entire content of her Facebook account onto a suitable storage device or printed out hard copy. The plaintiff's lawyer was ordered not to tell plaintiff the purpose of the meeting until she arrived. At the defendant's expense, the plaintiff's lawyer was to have another lawyer directly supervise the immediate downloading of the account contents and then certify that the order was strictly complied with and that the entire contents of the plaintiff's Facebook account were downloaded, preserved and sealed in a packet. The plaintiff's own lawyer could not be ordered to certify compliance, because that risked him becoming a witness in his own client's case. The defendant was to file and serve a notice of motion for the production and disclosure of the contents of the sealed packet. If there was information having a "semblance of relevance" on any other social networking site (LinkedIn, YouTube, My Space, Twitter, etc.), the plaintiff was bound to disclose the existence of that information by filing a further and better affidavit of documents.

Barristers and Solicitors - Topic 801

Duty to court - Counsel as a witness - General - [See Practice - Topic 3377.1 ].

Injunctions - Topic 1609

Interlocutory or interim injunctions - General principles - Circumstances when injunction will issue - [See Practice - Topic 3377.1 ].

Practice - Topic 3131

Applications and motions - Motions - Ex parte - [See Practice - Topic 3377.1 ].

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - [See Practice - Topic 3377.1 ].

Practice - Topic 3377.1

Interim proceedings - Preservation of property - Personal information on social networking site - The plaintiff sued the defendant respecting injuries suffered in a motor vehicle accident - The plaintiff claimed injuries resulting in "serious impairment", precluding application of the $2,500 soft tissue injury damage cap - In preparation for discovery, the defendant hired an investigator to find any personal web pages the plaintiff had on any social networking sites - Personal web pages were found on Facebook and LinkedIn - The investigator accessed only web pages accessible to the general public - There was no attempt to access private data accessible only to certain persons, such as "friends" - The Facebook web page included pictures of the plaintiff using a zip line, crawling on her hands and knees, and engaging in other social and recreational activities - The pictures were posted after the accident - If the photographed activities were post-accident, they were potentially relevant to the plaintiff's claim of "serious impairment" - A similar "public space" web page on the plaintiff's LinkedIn account had no similar pictures - The defendant wished to preserve his right to seek disclosure of private information on the social networking sites having a "semblance of relevance" - Since data could be removed without being traced, the defendant moved ex parte for orders to compel the plaintiff to download and preserve, without advance notice to the plaintiff and under the direct supervision of her lawyer, the contents of all of social networking sites she subscribed to - The defendant sought to have the downloaded content sealed until a production hearing was held to determine whether the defendant was entitled to disclosure to prepare for discovery and trial - The New Brunswick Court of Queen's Bench, Trial Division, allowed the ex parte motion respecting the plaintiff's Facebook web page only - An ex parte order was necessary to preclude the unacceptable risk of the plaintiff deleting the contents of her Facebook web pages if given advance notice of the defendant's intention to seek disclosure - A preservation order or, alternatively, an interlocutory injunction, was granted to compel the plaintiff to preserve and maintain the entire contents of her Facebook account - The order required the plaintiff's lawyer to arrange for the plaintiff to attend for a meeting for the purpose of accessing and downloading the entire content of her Facebook account onto a suitable storage device or printed out hard copy - The plaintiff's lawyer was ordered not to tell plaintiff the purpose of the meeting until she arrived - At the defendant's expense, the plaintiff's lawyer was to have another lawyer directly supervise the immediate downloading of the account contents and then certify that the order was strictly complied with and that the entire contents of the plaintiff's Facebook account were downloaded, preserved and sealed in a packet - The plaintiff's own lawyer could not be ordered to certify compliance, because that risked him becoming a witness in his own client's case - The defendant was to move to have the contents produced and disclosed - If there was information having a "semblance of relevance" on any other social networking site (LinkedIn, YouTube, My Space, Twitter, etc.), the plaintiff was bound to disclose the existence of that information by filing a further and better affidavit of documents.

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - [See Practice - Topic 3377.1 ].

Practice - Topic 4648

Discovery - Affidavit or list of documents - Order for further and better affidavit or list - [See Practice - Topic 3377.1 ].

Practice - Topic 5809

Judgments and orders - Ex parte orders - Notice - [See Practice - Topic 3377.1 ].

Avocats et notaires - Cote 801

Devoirs judiciaires - Avocat appelé à témoigner - Généralités - [Voir Barristers and Solicitors - Topic 801 ].

Injonctions - Cote 1609

Injonctions interlocutoires ou provisoires - Principes généraux - Circonstances donnant droit à l'injonction - [Voir Injunctions - Topic 1609 ].

Procédure - Cote 3131

Requêtes et motions - Motions - Ex parte - [Voir Practice - Topic 3131 ].

Procédure - Cote 3377

Procédures provisoires - Protection des biens - Conditions d'obtention de l'ordonnance de conservation des biens - [Voir Practice - Topic 3377 ].

Procédure - Cote 3377.1

Procédures provisoires - Protection des biens - Renseignements personnels sur un site de réseautage social - [Voir Practice - Topic 3377.1 ].

Procédure - Cote 4573

Enquête préalable - Documents à produire - Documents ayant trait au litige - [Voir Practice - Topic 4573 ].

Procédure - Cote 4648

Enquête préalable - Affidavit ou liste de documents - Ordonnance exigeant une autre liste ou un autre affidavit plus complet - [Voir Practice - Topic 4648 ].

Procédure - Cote 5809

Jugements et ordonnances - Ordonnances ex parte - Avis - [Voir Practice - Topic 5809 ].

Cases Noticed:

Leduc v. Roman et al., [2009] O.T.C. Uned. 389 (Sup. Ct.), refd to. [para. 17].

J.E.J. v. S.L.M. (2007), 318 N.B.R.(2d) 119; 821 A.P.R. 119 (C.A.), refd to. [para. 27].

Lloyd v. Atlantic Institution (Director) (1990), 109 N.B.R.(2d) 266; 273 A.P.R. 266 (T.D.), refd to. [para. 27].

Olympic Metals Ltd. v. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Lodge 73 et al. (1995), 170 N.B.R.(2d) 172; 435 A.P.R. 172 (T.D.), refd to. [para. 27].

Kourtesis v. Joris, [2007] O.T.C. Uned. E39 (Sup. Ct.), refd to. [para. 29].

Schuster v. Royal & Sun Alliance Insurance Co. of Canada, [2009] O.T.C. Uned. P95 (Sup. Ct.), dist. [para. 35].

Frangione v. Vandongen, [2010] O.J. No. 2337 (Master), refd to. [para. 41].

Desgagne v. Yuen et al., [2006] B.C.T.C. 955 (S.C.), refd to. [para. 41].

Bishop v. Minichiello, [2010] B.C.T.C. Uned. 1502 (S.C.), refd to. [para. 41].

Ireland v. Low, [2006] B.C.T.C. 393 (S.C.), refd to. [para. 41].

Carter v. Connors et al. (2009), 355 N.B.R.(2d) 235; 917 A.P.R. 235 (T.D.), refd to. [para. 44].

Corrier v. Seely (2009), 340 N.B.R.(2d) 262; 871 A.P.R. 262 (C.A.), refd to. [para. 45].

Murphy v. Perger, [2007] O.J. No. 5511 (Sup. Ct.), refd to. [para. 48].

Rossignol v. Rubidge (2007), 317 N.B.R.(2d) 105; 819 A.P.R. 105 (T.D.), refd to. [para. 49].

Fraser v. Haines (2008), 334 N.B.R.(2d) 182; 858 A.P.R. 182 (C.A.), refd to. [para. 49].

Wice v. Dominion of Canada General Insurance Co., [2009] O.T.C. Uned. H58 (Sup. Ct.), refd to. [para. 51].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 52].

St. Anne Pulp (Bankrupt), Re (2005), 286 N.B.R.(2d) 19; 748 A.P.R. 19 (C.A.), refd to. [para. 53].

Slattery (Bankrupt) v. Slattery (1988), 105 N.B.R.(2d) 205; 264 A.P.R. 205 (C.A.), refd to. [para. 53].

Hughes v. Moncton (City) (2006), 304 N.B.R.(2d) 92; 788 A.P.R. 92 (C.A.), refd to. [para. 62].

835637 Alberta Ltd. et al. v. Moonraker Realty Inc. (2010), 364 N.B.R.(2d) 148; 937 A.P.R. 148; 2010 NBCA 72, refd to. [para. 63].

Privest Properties Ltd. et al. v. Grace (W.R.) & Co. - Conn. (1992), 21 B.C.A.C. 5; 37 W.A.C. 5 (C.A.), refd to. [para. 71].

Park v. Mullin, [2005] B.C.T.C. 1813 (S.C.), refd to. [para. 74].

R. v. Basi (U.S.) et al., [2009] 3 S.C.R. 389; 395 N.R. 240; 277 B.C.A.C. 305; 469 W.A.C. 305, refd to. [para. 81].

Statutes Noticed:

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 33 [para. 36].

Rules of Court (N.B.), rule 31.01 [para. 40]; rule 31.02(2), rule 31.03(6) [para. 67]; rule 35.01, rule 35.02 [para. 36]; rule 37.04 [para. 25]; rule 40.01, rule 40.05 [para. 36].

Counsel:

Avocats:

Marco Cloutier, for the applicant, ex parte.

This ex parte motion was heard on December 9, 2010, before Ferguson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following judgment on February 4, 2011.