The Latest Word from FSCO and Judges on Relevant Facebook Production Issues

Introduction

Social networking has become a worldwide phenomenon. Rare is the client in 2012 who is not participating in Internet based social networking sites such as Facebook[1], Twitter[2] and LinkedIn[3]. Many of these sites, especially Facebook, involve constant updates of a user’s status and regular posting of photographs. Facebook now reports that it has over 955 million active users.[4] In a personal injury context the widespread use of Facebook can present a problem for both plaintiffs and plaintiff’s counsel. Is all of the information posted on a social networking site relevant and producible in a personal injury tort lawsuit? Does it matter whether that information is publically accessible to anyone on the Internet or if access is restricted to the client’s online “friends”? Does the relevance of that online data change if you are dealing with a motor vehicle no-fault insurer as opposed to a tort defendant? This paper will attempt to answer these questions by summarizing the relevant case law on this issue.

Superior Court of Justice case law before Leduc v. Roman[5]

The Superior Court of Justice case law in Ontario in this area dates back to 2007.

In Kourtesis v Joris,(2007) (S.C.J.)[6] the trial judge ordered a witness to return to the stand to address the issue of Facebook photos that were unearthed by defence counsel in the third week of trial and which appeared to contradict earlier evidence given by that witness at trial.

Murphy v Perger, (2007) (S.C.J.)[7] was a tort action commenced after injuries in a motor vehicle accident (“MVA”). In that case the defendant brought a motion asking the court to adjudicate on whether or not photographs posted to a restricted page on Facebook had to be produced by the plaintiff to the defendant pursuant to Rule of Civil Procedure 30.02(1). Madam Justice Rady granted the motion on the grounds that the invasion of privacy to the plaintiff was minimal given that 366 online “friends” already had access to these photos and the fact that the defendant required these photos to assess the case.[8]

Leduc v. Roman[9] The leading case in this area is Leduc v Roman, (2009) (S.C.J.)[10]. This case involved a plaintiff who commenced a tort action following injuries sustained in a MVA. The defendant brought a motion for the preservation of the plaintiff’s Facebook account and production of all information on his Facebook profile. Master Dash held that the Facebook pages were “documents” that lay within the control of the plaintiff.[11] He concluded that the Facebook profile could contain information that “might have some relevance to demonstrating the Plaintiff’s physical and social activities, enjoyment of life and psychological well being.”[12]

The Master, however, refused to order the plaintiff to produce pages from his Facebook profile. He held that the defendant bore the onus to demonstrate that there were relevant materials on the website:

I agree with the sentiments expressed in paragraph 30 of the Plaintiff’s factum with respect to the precedent that would be created by allowing a Defendant to gain access to any Plaintiff’s Facebook merely by proving its existence. Same would be true of a photo album or a diary. The Defendant had an opportunity to ask at discovery whether the Plaintiff had photos — either a hard album or electronically that are demonstrative of his lifestyle but I have no evidence such questions were asked.

In my view speculation of what may be on the Plaintiff’s site or what is on a ‘typical’ site is insufficient. Surely the one head shot produced on the one public page is neither relevant nor indicative of what may be on the site. I am also concerned about the Plaintiff’s privacy interests; however I am bound by the decision of Rady J. in Murphy v. Preger…I do however agree that that decision may be distinguished as set out in paragraphs 27 to 29 of the Plaintiff’s factum. In my view, unlike in Murphy, the request by the Defendant herein is clearly a fishing expedition. Even if I were to consider a production order, the Defendant’s request for the entire site is far too broad and has not been restricted to specified relevant items. The motion will be dismissed.[13]

On appeal, Mr. Justice D. Michael Brown entered into a lengthy discussion of the plaintiff’s potential duty to disclose his Facebook pages. The court first considered Rule 30 and concluded that, while this rule requires evidence that potentially relevant undisclosed documents exist, the level of proof required should take into account the fact that one party has access to the documents and the other does not.[14]

The motions judge discussed the evidence presented by the defendants and concluded that the defendants produced general evidence about how widely used Facebook is and the uses and applications that can be utilized on the website. They also produced specific evidence that the plaintiff did indeed hold a Facebook account.[15] The court held that the Master was incorrect in concluding that one head shot of the plaintiff was not indicative of what else might be on his site and that the venture for production was too speculative.[16]

Justice Brown considered cases in Ontario and elsewhere that had dealt with Facebook production at that point in time and noted that only one previous case, Murphy, had dealt with the issue of producing access-limited contents of a Facebook profile. Justice Brown went onto make the following important comments:

Where a party makes extensive postings of personal information on his publicly-accessible Facebook profile, few production issues arise. Any relevant public postings by a party are producible. An opposite party who discovers and downloads postings from another’s public profile also operates subject to the disclosure and production obligations imposed by the Rules.

Where, in addition to a publicly-accessible profile, a party maintains a private Facebook profile viewable only by the party’s “friends”, …it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile. A court then can order the production of relevant postings on the private profile…

Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of “friends” with whom they can share information about themselves, and on which “friends” can post information about the user…

A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action…

Therefore, Leduc provides that Facebook pages are documents within the meaning of the Rules of Civil Procedure and that private settings on a Facebook account do not protect it from production. Justice Brown concluded that a court can infer, from the nature of the Facebook service, the likely existence of relevant documents on a limited-access Facebook profile. Leduc is also regularly cited for the principle that the defendant must show some evidence of relevance in order to gain production.

Superior Court of Justice case law after Leduc v. Roman[17]

Kent v Laverdiere, (2009) (S.C.J.)[18] was a dog bite personal injury action which involved two Family Law Act[19] (“FLA”) claimants. The defendant sought an order for production of all three plaintiffs’ Facebook and MySpace pages. Master Haberman concluded that the derivative FLA plaintiffs could not possibly have anything on their Facebook or MySpace pages that were relevant to the matters in issue in the action. This part of the motion was dismissed. With respect to the injured plaintiff the Master held that photos on her Facebook page would be relevant because the plaintiff had pleaded that the dog bite lessened her enjoyment of life, disfigured her and affected her ability to attract romantic companionship. However, production was not ordered because the defendant required leave to bring the motion under Rule 48.04 after the trial date had been set and such leave was refused.[20]

Wice v Dominion of Canada General Insurance Co., (2009) (S.C.J.)[21] involved a plaintiff who suffered a traumatic brain injury as a result of a MVA and who later sued his no-fault carrier for improperly denied accident benefits. The defendant asked for information from the plaintiff’s Facebook account which was not provided. The defendant brought a motion for an order compelling the plaintiff to do so.[22] The defendant relied upon the case of Leduc. Justice Cary Boswell distinguished that case on the basis that Leduc was a tort claim which included a claim for loss of enjoyment of life. This case, however, was a no-fault accident benefits claim against the insurer.[23] However, because the plaintiff was alleging that he required virtually 24 hour attendant care, Justice Boswell held that the Facebook material was relevant and ordered production:

The case at bar, while not a tort case, does raise the issue of Mr. Wice’s ability to function – at least in certain defined circumstances. As I have already pointed out, his ability to function in a wide range of social situations may be circumstantial evidence from which a trier of fact could draw an inference about his ability to function in the defined circumstances in issue. The Defendant has produced evidence demonstrating that there are relevant photographs of the Plaintiff participating in social activities posted on his Facebook profile. The court may also infer from the nature of the Facebook service, that other relevant documents are likely included in the Plaintiff’s profile.[24]

Schuster v Royal SunAlliance Insurance Co. of Canada, (2009) (S.C.J.) [25] was a tort motor vehicle personal injury action. In Schuster the defendant brought a motion without notice to the plaintiff for an interim order for the preservation of the plaintiff’s Facebook webpage under Rule 45.01(1) of the Rules. This is equivalent to a civil search warrant granted when there is a strong likelihood of documents being destroyed. This Rule has a very high threshold. The defendant proposed to later bring a motion for production of the Facebook account.[26]

Mr. Justice Price noted that Rule 45.01 (1) has a much higher threshold than an ex parte injunction under s. 101 of the Courts of Justice Act (“CJA”). Rule 45.01 (1) would allow the defendant to have access to the plaintiff’s Facebook and would require the plaintiff to provide the username and password for the account. This would then give the defendant access to the plaintiff’s private e-mail correspondence. [27]

The court, therefore, made the assumption that the defendant was only seeking an order for the plaintiff to preserve the Facebook account and not for actual access to it. The court also stated that if the defendant was seeking an order for access, such an order would have been refused.[28]

The court went on to consider whether the defendant could be granted an order for an ex parte interim injunction under s. 101 of the CJA and Rule 40 of the Rules.[29] The court found no evidence that the plaintiff’s Facebook account contained any relevant evidence. The court was not willing to make an inference of relevant information due to the nature of Facebook itself, as was done in Wice:

I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintiff’s account in the present case do not appear, on their face, to be relevant.[30]

The court then went on to say that the proper balance between the plaintiff’s privacy interests and the defendant’s disclosure interests is struck by presuming, from the Plaintiff’s failure to list the Facebook account in the Affidavit of Documents, that these documents are not relevant but by also giving the defendant a reasonable opportunity to rebut this presumption by cross-examining the plaintiff on the Affidavit of Documents.[31] The court finds that the defendant did not even attempt to do so in this case:

The Defendant was at liberty to cross-examine the Plaintiff on her Affidavit of Documents if it considered it desirable to do so. It was also free to question the Plaintiff about her Facebook account at her examination for discovery. There is no evidence that it did so. The Defendant should not seek to by-pass the need to make these inquiries by prematurely seeking an order for the delivery of a Supplementary Affidavit of Documents or preservation or production of documents by asking the Court to speculate as to the content of the Plaintiff’s Facebook account.[32]

The court did, however, grant the defendant leave to cross-examine the plaintiff on her Affidavit of Documents. Justice Price then concluded that an ex parte injunction would not be granted and makes the following comments:

The Defendant submits that it should be granted an injunction on an ex parte basis because it asserts a genuine concern that once the Plaintiff becomes aware of the Defendant’s intention to seek access to the contents of her site, any photographs, text or other content that may be harmful to her case may be deleted, altered, and/or otherwise removed from the site. The Defendant implicitly suggests that the Plaintiff will seek to obstruct justice by deleting relevant evidence if she knows that the Defendant is seeking access to it. I find no evidence to support this suggestion or any reason to conclude that the Plaintiff is likely to delete content from her Facebook profile pending trial.

It is my opinion that it would not be appropriate, in the absence of evidence that the Plaintiff has failed to comply with her obligations, for me to issue an ex parte injunction interfering with her right to delete documents from her Facebook account. There are many good reasons unrelated to litigation that people may have to withdraw documents from their friends’ view. Their right to do so should not be lightly interfered with.[33]

In Frangione v Vandongen, (2010) (S.C.J.)[34] the plaintiff was suing for damages arising out of two MVAs. The plaintiff claimed that, due to his injuries, he could not sit at a computer for longer than 15 minutes. The defendant wished to access the plaintiff’s entire computer hard drive, including the private portion of his Facebook site in order to conduct a forensic examination.[35]

The plaintiff willingly produced all pages of his Facebook that were available to the public, which contained both photographs and communications with his friends. He refused to produce both the private-access portion of his Facebook site and his computer hard drive as he contended that it contained private communications. He cited privacy issues.[36]

The defendant argued that the information contained on the plaintiff’s computer, including information that may have been contained on his Facebook site as well as his overall computer usage, were relevant to the issues of the assessment of damages for loss of enjoyment of life, the plaintiff’s ability to work and his ability to sit at a computer. [37]

In considering the privacy concerns of the access-limited portions of the plaintiff’s Facebook account, Master Pope made the following comments:

The plaintiff’s testimony on discovery was that he maintained privacy over communications with his friends that numbered approximately 200 although only five of them were close friends. In other words, he permits some 200 “friends” to view what he now asserts is private. This is a preposterous assertion especially given his testimony that only five of the 200 are close friends. In my view, there would be little or no invasion of the plaintiff’s privacy if the plaintiff were ordered to produce all portions of his Facebook site.[38]

The motions judge then ordered that the plaintiff preserve all material on his Facebook website and for the plaintiff to produce all Facebook material including any postings, correspondence and photographs.[39] It is unclear whether “correspondence” means personal Facebook messaging or back and forth wall-posts. However, the order is for all material.

Master Pope refused, however, to order that the plaintiff’s “metadata” be disclosed to the defendant, which would show e-mail correspondence and how many times, when and for how long the plaintiff would log into Facebook. The court reasoned that the probative value of this information was minimal and did not outweigh the plaintiff’s privacy concerns about his personal e-mail.[40]

In Anderson v 45859 Ontario Ltd., (2010) (S.C.J.)[41] a plaintiff sustained head and facial injuries when she was kicked by a horse. The plaintiff was insured under the defendant’s group policy of disability insurance and commenced an action when the defendant denied long-term benefits.[42] The defendant brought a motion for answers to refusals, one of which was to produce the Facebook account.[43]

At the plaintiff’s examination for discovery, the defendant elicited some limited evidence about the Facebook account. The plaintiff’s evidence was that she did have a Facebook account but did not use it often and that it contained only five baby pictures.[44]

The court ordered that the plaintiff preserve all documents contained on her Facebook site and produce a supplementary affidavit of documents that identifies relevant documents contained on the site. The court was not prepared to order production of the baby pictures until the plaintiff and her counsel reviewed the Facebook material.[45] The court also ordered that the defendant may have a short further examination on the pictures contained on the plaintiff’s Facebook account:

…this order will provide the defendant a mechanism of satisfying itself as to the relevancy of these pictures given that the plaintiff specifically identified them to exist on her Facebook site and it will not leave the ultimate determination on relevancy of the pictures solely up to the plaintiff.[46]

In Ottenhof v Ross, (2011) (S.C.J.)[47] the plaintiff was injured after an alleged police assault and sued the police officer and police department. The defendants brought a motion for answers to refusals. One of the refusals was for the plaintiff the produce a complete copy of the plaintiff’s Facebook site, and a consequential order for preservation of the Facebook site. The plaintiff refused on the basis that the request was overly broad and intrusive.[48]

Motions judge Mr. Justice Ray summarized the principles surrounding Facebook production from the jurisprudence as follows:

The pages at a social networking site or internet site including a facebook page is a document for the purpose of discovery and should be listed in a party’s affidavit of documents, if relevant (“relating to any matter in issue”). The mere existence of a facebook account is insufficient to require its production on discovery. Whether it is listed in the affidavit of documents or not, the responding party is entitled to cross-examine on the affidavit of documents to determine firstly if it exists, secondly the relevance of the contents, and finally production of the relevant portions for which privilege is not claimed. Access to the party’s facebook account through the party’s password is overly intrusive unless the party is claiming as part of his or her damages claim a level of disability that inhibits his or her computer time. In those circumstances, a forensic examination of the facebook account may be necessary.[49]

The defendants were granted leave to cross-examine the plaintiff on his affidavit of documents to determine the extent of his Facebook account. Further, the plaintiff was ordered to preserve his Facebook page “in the same way that any litigant is required to preserve potentially relevant documentation.” [50]

In McDonnell v Levie, (2011) (S.C.J.)[51] was a tort lawsuit following injuries suffered in an MVA. The defendant sought an order compelling the plaintiff to produce her Facebook pages. Mr. Justice Arrell distinguished Schuster by noting that Schuster was an ex parte motion. He then followed the reasoning in Leduc and made the following comments:

…where the plaintiff puts her social enjoyment of life in issue and alleges various activities that she is unable to do then photographs of her social life and activities, before and after the alleged trauma, which she concedes are on her Facebook account, are produceable as having some semblance of relevance and should be part of her Affidavit of Documents. Whether they are ultimately produceable at trial will be a determination made by the trial judge.

The plaintiff argues that privacy concerns should be sufficient to prevent production. I disagree. The plaintiff has put her social life in issue as well as her ability to do certain activities being negatively affected by her injuries from the accident. These issues because of this law suit are therefore now part of the public domain. She has also posted photographs of herself, before and after the accident, on her Facebook account to others-how many is not known and is not really relevant since it was clearly more than one. Under these circumstances the privacy argument has little weight.[52]

Morabito v DiLorenzo, (2011) (S.C.J.)[53] was a tort action for damages as a result of injuries sustained in an MVA. The defendant moved for an order to compel the plaintiff to produce all contents of his Facebook and MySpace pages. The plaintiff relied on Leduc for the proposition that mere proof of existence of a Facebook profile does not entitle the opposing party to all material placed on the site. The court accepted that proposition.[54]

Mr. Justice J.A. Ramsay goes on to hold that all photographs taken before and after the accident are relevant and should be produced. The court orders the plaintiff to re-attend examination for discovery to answer questions about photographs posted on his Facebook.[55] However, the court was not satisfied that the defendant established relevance of the plaintiff’s status updates, or the messages posted by others on his Facebook wall.[56]

FSCO Decisions regarding Facebook

There have been only two decisions produced by the arbitrators and director’s delegates at Financial Services Commission of Ontario on the issue of Facebook. In Prete v State Farm Mutual Automobile Insurance Co., (2011) (FSCO)[57] the issue was whether the insured was required to disclose to the insurer all photographs and videos in which his image appeared that were posted to the restricted portion of his Facebook account, and remained on his account.[58]

The Arbitrator in Prete found that the insured was not required to disclose such material. It came to this decision by holding that the Dispute Resolution Practice Code (“DRPC”) was very different than the Rules of Civil Procedure. The Arbitrator stated that the Rules may provide non-binding guidance to an arbitrator where the DRPC is silent. Therefore, he did not find the cases of Murphy or Leduc persuasive in determining whether the insured should be required to produce the photos and videos.[59]

The Arbitrator went on to state that the insured in this case was claiming income replacement benefits and housekeeping and home maintenance benefits. He concluded that there were no photos on the insured’s profile or wall that were related to the claim for these benefits. The arbitrator therefore held that “[the insurer] has failed to establish a reasonable relationship between the images on Mr. Prete’s restricted portion of his Facebook account and the issues to be arbitrated.”[60]

The Arbitrator made the following comments about the difficulties of producing Facebook pages in general:

As well, the nature of social networking forums make the requirement to disclose images on such forums procedurally burdensome in the context of an administrative law tribunal. Active participants in these sites post and remove images frequently. The images do not necessarily have the date upon which they were created. It is not uncommon for adults to post their baby pictures. This practice exemplifies the reality that an image may be posted on a date relevant to the claim but was not created at a relevant time. It would be a procedural quagmire to set guidelines for the preservation and production of these images in a manner that would render them reliable evidence in a process that is required to provide a speedy, accessible and fair process for dealing with disputes relating to the Schedule.

Finally, the images posted on social networking forums include those of many people unrelated to an applicant’s claims. Those unrelated parties were befriended by an applicant without the expectation of their personal images potentially becoming evidence in an arbitration proceeding. Some of the images may be personally sensitive and only intended to be shared with those in their circle of “friends”.

I find the potential relevance of images posted on a social networking forum to be too remote when weighed against factors such as sensitivity and practicality.[61]

Rakosi v State Farm Mutual Automobile Insurance Co., (2012) (FSCO)[62] is the first appellate FSCO decision to deal with the issue of Facebook production. At first instance, the Arbitrator found that the test for production was a “semblance of relevance.” It was concluded that the insured’s photographs on a Hi5 account (another social networking site) had at least a semblance of relevance to the claim. The Arbitrator then concluded that the insured’s Facebook profile would likely contain similar photographs. The insured appealed. This appeal was accepted due to the fact that the arbitrators in Prete and Rakosi used different relevance tests in determining whether Facebook data and photographs were producible.

The Appeal decision considered the Arbitrator’s decision, Prete, Leduc, Murphy, Wice, Kent and Frangione.

The Director’s Delegate concluded that the Arbitrator erred in applying the “semblance of relevance” test. This test arose, not out of administrative tribunals, but from the Rules. It was held that the tribunal is meant to be more expeditious, less complicated and less expensive. It does not follow the Rules. Allowing documents that only possess a “semblance of relevance” undermines the expeditious nature of the tribunal process.[63] In sum, this case concludes that Superior Court of Justice cases will have a much lower relevance standard than FSCO cases for Facebook production.

The Appeal decision went on to consider whether Facebook pages were a prima facie relevant and producible document. It concluded that they are not prima facie relevant and that an Arbitrator must consider if the restricted portion of Facebook is relevant to the action and must weigh the degree of relevance against other considerations, such as the sensitivity of the information, the practicalities of compliance, and the timing of the request.[64]

In the end, the Appellate decision concluded that, while the Arbitrator erred in applying the “semblance of relevancy” test rather than looking at clear relevance, the Arbitrator did not err in ordering Facebook production. It was held that considering the photographs on the Hi5 site to make an inference about the Facebook site was not an error and was reasonable. The insured provided no evidence as to the particular sensitivity of the photographs or to the practicalities of compliance. The order was not given late in the process.[65] Accordingly, the order was confirmed.[66]

Conclusion

The case law makes it clear that in a Superior Court of Justice action any photographs or information on a plaintiff’s public or private[67] Facebook website are documents within the meaning of the Rules. Furthermore, there is an onus on plaintiffs to list any relevant documents in Schedule “A” of their Affidavit of Documents. If the plaintiff fails to do this the defendant may ask questions of the plaintiff at examination for discovery about the existence of a Facebook page and ask for production of any relevant photographs or documents. If the defendant fails to do this at discovery he or she still has the potential remedy of seeking a cross-examination of the plaintiff on his or her affidavit of documents to determine whether any relevant Facebook photos or documents exist and were omitted from Schedule “A”. In a motion for production of Facebook photos or documents the onus will be on the moving defendant to show some relevance in the material sought. If the plaintiff has brought a claim for loss of enjoyment of life it appears that it will be difficult for plaintiff’s counsel to successfully argue that photographs of the client engaged in activities both pre and post-accident are not relating to any matter in issue in the action.

Production of Facebook photos and information is less of a certainty when injured plaintiffs bring an action in the Superior Court of Justice against their no-fault insurer for overdue accident benefits. If a defendant insurer in a no-fault accident benefits lawsuit brings a motion for production relating to Facebook it appears that the motions judge will closely examine the nature of the claims being made against the insurer before ordering production of data or photographs from Facebook.

If the injured plaintiff elects to commence an arbitration at the Financial Services Commission of Ontario over overdue accident benefits production of Facebook photos and documents is even less likely. FSCO applies a higher standard of relevance to production than the Superior Court of Justice. Therefore in a FSCO arbitration the test that the insurer must meet to prove that the photos and information on Facebook are relevant and therefore producible will be a more difficult one for the insurer to meet.[68]

[1] <http://www.facebook.com> (visited September 29, 2012).

[2] <http://www.twitter.com> (visited September 29, 2012).

[3] <http://www.linkedin.com> (visited September 29, 2012).

[4] “Facebook Now has 955 Million Monthly Active Users” (July 26, 2012) (visited September 29, 2012).

[5] Leduc v Roman, 2008 CarswellOnt 8652 (Ont. S.C.J.), reversed in part Leduc v. Roman (2009) CarswellOnt843 (Ont. S.C.J.) [Leduc].

[6] Kourtesis v Joris, [2007] O.J. No. 5539 (S.C.J.). [Kourtesis]

[7] Murphy v Perger, [2007] O.J. No. 5511 (S.C.J.). [Murphy].

[8] Ibid at para. 20.

[9] See Footnote 6.

[10] Ibid.

[11] Ibid at para 2.

[12] Ibid at para 2.

[13] Ibid at para 2.

[14] Leduc v. Roman, (2009) CarswellOnt843 (Ont. S.C.J.) at para. 14.

[15] Ibid at paras 17-22.

[16] Ibid at para 36.

[17] See Footnote 6.

[18] Kent v Laverdiere, [2009] O.J. No. 1522 (S.C.J.) (Master). [Kent]

[19] Family Law Act, R.S.O. 1990, c. F.3

[20] Kent at para 35.

[21] Wice v Dominion of Canada General Insurance Co., [2009] O.J. No. 2946 (S.C.J.). [Wice]

[22] Ibid at paras 1-4.

[23] Ibid at para 17.

[24] Ibid at para 18.

[25] Schuster v Royal & SunAlliance Insurance Co. of Canada, [2009] OJ No. 4518 (S.C.J.). [Schuster]

[26] Ibid at para 2.

[27] Ibid at paras 17-18.

[28] Ibid at paras 18-19.

[29] Ibid at para 21.

[30] Ibid at para 39.

[31] Ibid at para 40.

[32] Ibid at para 41.

[33] Ibid at paras 49-50.

[34] Frangione v. Vandongen, 2010 ONSC 2823 (S.C.J.) (Master).

[35] Ibid at paras 6-8.

[36] Ibid at para 31.

[37] Ibid at para 32.

[38] Ibid at para 38.

[39] Ibid at para 41.

[40] Ibid at paras 73-74.

[41] Anderson v 45859 Ontario Ltd., [2010] OJ No. 6041 (S.C.J.). [Anderson].

[42] Ibid at para 1.

[43] Ibid at paras 2-6.

[44] Ibid at para 15.

[45] Ibid at para 17.

[46] Ibid at para 18.

[47] Ottenhof v Ross, 2011 ONSC 1430 (S.C.J.).[Ottenhof]

[48] Ibid at para 3.

[49] Ibid.

[50] Ibid.

[51] McDonnell v Levie, [2011] OJ No. 5689 (S.C.J.) [McDonnell].

[52] Ibid at paras 15-16.

[53] Morabito v DiLorenzo, [2011] OJ No. 5661 (S.C.J.). [Morabito]

[54] Ibid at paras 1-3.

[55] Ibid at paras 5-6.

[56] Ibid at para 7.

[57] Prete v State Farm Mutual Automobile Insurance Co, [2011] OFSCD No. 7 (FSCO A09-002996) [Prete]

[58] Ibid at para 2.

[59] Ibid at para 15.

[60] Ibid at para 16.

[61] Ibid at paras 17-19.

[62] Rakosi v State Farm Mutual Automobile Insurance Co., [2012] OFSCD No. 73 (FSCO P11-00027), aff’ing [2011] OFSCD No. 98 (FSCO A10-002152) [Rakosi].

[63] Ibid at para 16.

[64] Ibid at paras 47, 50-51.

[65] Ibid at paras 57-58.

[66] Ibid at para 59.

[67] Available only to the plaintiff’s online friends.

[68] Attached as “Appendices A”is a list of out-of-province decisions that address the issue of Facebook. Attached as Appendix “B” is a list of secondary sources that you may wish to consult on the issues addressed in this paper. Attached as Appendix “C” is a table organizing the relevant cases into sub-categories. Attached as Appendix “D” is a chart listing cases in which Facebook evidence has been used at trial.