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

Social Incrimination 259
30.02(1) Every relevant document in an action that is or has been in the
possession, control or power of a party to the action shall be disclosed as
provided in this Rule, whether or not privilege is claimed in respect of the
document.
It provides a broad remedy if a party fails to disclose a potentially
detrimental document:
30.08(1) b. if the document is not favourable to the party's case, the court may
make such order as is just.
Under certain circumstances, courts could also resort to interim
preservation order rules that authorize individuals to enter property to
obtain evidence. 169
Ontario has a similar statutory requirement in the Rules of Civil
Procedure, 170 which do not differentiate between regular discovery
procedures and those related to social media. There are separate rules,
however, for other types of electronic discovery. Rule 29.1.03(4) 171 does
require certain parties to consult with the “Sedona Canada Principle
Addressing Electronic Discovery” before preparing a discovery plan. 172
However, these guidelines are more appropriate to commercial litigation
where one party may be disclosing thousands of pages of documents, and
do not provide guidance to the evidentiary considerations relevant to
social networks. Some have argued that by applying traditional electronic
discovery rules (such as those in commercial litigation), the courts have
ignored the strong privacy implications of social network evidence. 173
169
Schuster v Royal & Sun Alliance Insurance Co of Canada (2009), 78 CCLI (4th) 216, 83
CPC (6th) 365 at para 39. (ON Sup Ct J) [Schuster]. Price J discusses the use of courts
authorizing entry to social networking accounts, although he rejects it as requiring a
higher degree of proof.
170
Ontario, Rules of Civil Procedure, RRO 1990, Reg 194.
171
Ibid, s 29.1.03(4). Manitoba has also referred to them in their practice directive. See
“Guidelines Regarding Discovery of Electronic Evidence” (June 2011) online:
.
172
Sedona Canada, “The Sedona Canada Principles: Addressing Electronic Discovery”
(The Sedona Conference, 2008), online: http://www.thesedonaconference.org/
dltForm?did=canada_pincpls_FINAL_108.pdf. The Sedona Canada Principle is a
framework for managing costs and timeframes in larger electronic discovery, especially
for dealing with large discovery requests beyond the scope of those handled in a
typical case involving social network evidence.
173
Andrew C Payne, “Twitigation: Old Rules in a New World” (2010) 49 Washburn LJ
841 at 865.