Court Denies Defendant’s “Shockingly Intrusive” Request for Private Text Messages
Sean McDonnell was riding his motorcycle when a drunk driver crossed the centre line and struck him head-on, killing him instantly.
At the time of his death, Sean was in a long-term romantic relationship with his partner Tristian. Sean and Tristian were not married, but they qualified as spouses because they were in a romantic relationship and lived together for more three years before Sean’s death. Tristian commenced a civil action because he suffered damages as a result of Sean’s death.
Tristian provided substantial documentary evidence to prove the details and timeline of cohabitation with Sean. Most notably, a tenancy agreement co-signed by Tristian and Sean, and a letter from the landlord to verify their residency for more than three years before Sean’s death.
Lawyers for the defendant asked questions under oath of Tristian, and Sean’s parents, and siblings. The evidence was consistent: Tristian and Sean lived together for 3+ years in a romantic relationship.
The defendant requested that Tristian produce private messages (text messages, emails, WhatsApp messages, and Snapchat messages) that he exchanged with Sean. The defendant argued that these private messages were necessary to establish a “concrete timeline” regarding the date on which Tristian and Sean began to live together.
Oatley Vigmond opposed this request. The Court agreed with Oatley Vigmond and determined that the defendant’s request was “shockingly intrusive.” The Court agreed that Tristian would suffer enormous prejudice because messages between spouses carry an “extremely high expectation of privacy.” Against the backdrop of the other evidence in this case, the Court assessed that there was no probative value to the private messages.[1]
The Court denied the defendant’s motion and ordered that the defendant’s insurance company pay costs of $18,000 to Oatley Vigmond. The costs ordered by the Court reflect an amount at the high-end of the scale.
This case has precedential value because it emphasizes that a litigant has a right to maintain privacy, and intrusions on privacy should only be tolerated when it is necessary to prove an element of the case. Lawyers can use this decision to fight back against intrusive requests from insurance companies.
Insurance companies have already taken note. A national publication for insurance professionals reported this decision under the headline: “Why the court denied an auto insurer’s ‘shockingly intrusive’ motion.”[2]
[1] Howell, McDonnell v. Freire, Aviva Insurance, Echelon Insurance, 2024 ONSC 586
[2] David Gambrill, “Why the court denied an auto insurer’s ‘shockingly intrusive’ motion”, Canadian Underwriter, January 30, 2024, online: https://www.canadianunderwriter.ca/claims/why-the-court-denied-this-auto-insurers-shockingly-intrusive-motion-1004242341/
About the Authors
Harrison is drawn to personal injury litigation because of its ability to make a positive impact on the lives of clients and their loved ones. Prior to joining Oatley Vigmond in 2017, Harrison gained valuable insight into personal injury litigation from the defence perspective at a leading Toronto law firm. This experience has provided him with a unique viewpoint, allowing him to help his clients achieve the best possible results.