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Ontario Court Rules not to Allow Insurer Access to Plaintiffs Facebook Account
In Schuster v. Royal & Sun Alliance Insurance Company of Canada, the Ontario Superior Court of Justice decided that a defendant insurer is not automatically allowed access to the private Facebook account of a plaintiff in a personal injury claim. The plaintiff had sued her insurer to obtain compensation for injuries she sustained in a motor vehicle collision. The insurer learned that the plaintiff had a Facebook account with a private designated area that only allowed access to those permitted by the plaintiff. The insurer sought: 1) “an interim order without prior notice to the plaintiff, preventing her from deleting any of the content from the account”; and 2) “an order requiring her to produce the content for the defendant’s inspection”, in the hopes of obtaining evidence regarding the plaintiff’s injuries.
In determining whether the insurer could have access to the private Facebook area, the Court clarified the precise nature of the order that the insurer was seeking as it was unclear whether the insurer wanted access to the Facebook website itself or to simply preserve the content of the webpage. The Court stated that access to the plaintiff’s website was invasive and it further observed that such a remedy has not yet been granted in similar cases. The Court stated that if the insurer was indeed seeking access to the private and restricted Facebook profile, it would refuse this request.
On the issue of an ex parte interim injunction, the Court found that although there was a serious issue to be tried, the remaining prongs of the test for an interlocutory injunction were not satisfied. There was no proof of irreparable harm because no evidence was presented that the plaintiff’s Facebook account did indeed contain relevant evidence. The insurer did not provide evidence that the plaintiff failed to disclose all of the relevant documents in her Affidavit of Documents. In addition, the balance of convenience test was not satisfied because the insurer was at liberty to cross-examine the plaintiff on her Affidavit of Documents and did not do so. As a result the Court granted the insurer leave to cross-examine the plaintiff on her Affidavit with conditions attached.
For a copy of the decision (Ontario Superior Court of Justice), visit: