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John McKiggan Q.C.
John McKiggan Q.C.
Attorney • (902) 423-2050

Dosanjh v. LeBlanc and St. Paul’s Hospital: Facebook Fishing a No-No

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I recently posted a an article on my Halifax Medical Malpractice Lawyer Blog about a recent case involving a defendant's attempt to conduct a "fishing expedition" on a plaintiff's Facebook page.

I have posted before about Facebook Being Used Against Personal Injury Victims and Social Networking and Personal Injury Claims.

It's clear insurance companies and defence counsel will go to extreme lengths to get access to plaintiff's social networking sites. Even going to far as to ask Courts to Order Lawyers to Mislead their Client to get Access to Facebook!

The Dosanjh case is helpful because it recognizes that privacy is a right guaranteed by Canada's Charter of Rights and Freedoms and states that defendants must establish what they hope to prove through disclosure of the plaintiff's online communications. The court stated:

[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.

[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.