MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

258 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
The relevance of social networking evidence in the context of a civil
proceeding depends on the issues in dispute. In cases of defamation, the
challenge with social media is often uncovering anonymous individuals
hiding behind fake profiles. In personal injury cases, courts ensure a
plaintiff has provided the defendant with photographs or posts that may
demonstrate the seriousness of their injuries or validity of their claims. In
family law, participants may not have the same need to uncover
incriminating hidden social network evidence as in litigation, but social
networking content surfaces particularly in child custody cases, as online
activity may relate to a parent’s ability to raise children. In bankruptcy
proceedings or disputes over income, photographs may have relevance in
the ability to finance a lifestyle and may work adversely to claims of
financial hardship. Additionally, courts are increasingly conducting
administrative reviews to determine whether social networking content
posted outside of school or work is grounds for censure.
For the most part, traditional civil laws of discovery apply and social
networking profiles and other electronic evidence are treated like any
other document:
The pages of a social networking 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"). 167
Legislative or statutory frameworks that apply to social networking can
affect what evidence is discoverable in civil trials. How various courts have
applied each province’s discovery rules to social networking evidence will
be discussed below.
A. Legislative Frameworks
Generally, there is a statutory requirement of voluntary disclosure of
any document relevant to the proceedings. There is often a great deal of
judicial discretion when voluntary compliance is not forthcoming, or
where there are disputes over relevancy. Most provinces have broad
discovery obligations. For example, Manitoba’s Court of Queen’s Bench
Rules 168 require:
167
Ottenhof v Ross, 2011 ONSC 1430 at para 3 (available on WL Can) [Ottenhoff].
168
Manitoba, Court of Queen’s Bench Rules, Man Reg 553/88[MBQB Rules].