Now over to Ontario and Facebook

This blog post discusses the Schuster v. Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971 (ON S.C.) case.

I understand that this case is a little old, but it hasn’t been explored, to my knowledge, from the perspective of the investigator. In addtition, the relevant points have resurfaced in a recent post which rekindled my interest in the issue.

A few paragraphs in particular caught my eye (keeping in mind that this is all in the context of granting an ex-parte order):

“[39] 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 Plaintff’s account in the present case do not appear, on their face, to be relevant.”

“[44] In the present case, the Defendant discovered the existence of the Plaintiff’s Facebook account after its examination for discovery of the Plaintiff. It also appears that the Defendant did not receive the Plaintiff’s sworn Affidavit of Documents until after the examination.

[45] Cross-examination on an Affidavit of Documents is one of a range of remedies that the court may grant when it is satisfied by evidence that a relevant document may have been omitted from a party’s Affidavit of Documents.

[46] Because Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it, I am prepared to grant the Defendant leave to cross-examine the Plaintiff on her Affidavit if it deems it appropriate to do so. If there are documents in the Plaintiff’s Facebook account that contain relevant information, she was under an obligation pursuant to Rule 30.03 to list them in her Affidavit. If she omitted to do so, she is obliged by Rule 30.07 to deliver a Supplementary Affidavit of Documents disclosing them.”

“[54] The Defendant has not established a basis for a preservation order in the present case, especially on an ex parte motion. The Defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved. It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion.”

-Price J.

There is relevant information for investigators in this case and in the casedescribed on the Internet Cases blog.

The existence of a social networking profile is one thing, confirming the number of friends and assessing the privacy settings in as much as you can on the profile is another; confirming that it has relevant information on it is yet another step and finally ensuring that your client’s counsel is aware of the existence of the profile so that they can ensure that proper disclosure has been made is yet another step in the investigation process (Note, the idea that the internet investigation process does not end when your report has been filed is an extention of the concept described in the paper written by David Debenham, The Forensic Accountant’s Guide to the Law of Privilege: What To Do When a Fraudster Claims Privilege).