Docket: CACV2217 Steven Webb v. the City of Regina Police Services, 2012 SKCA 13

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 13 Date: 20120221 Between: Docket: CACV2217 Steven Webb and the City of Regina Police Services Applicants (Defendants) - and - Destany Wesaquate, suing by her Litigation Guardian, Maureen Wesaquate Respondent (Plaintiff) Before: Herauf J.A. (in Chambers) Counsel: Gregory E. Murphy for the Applicants Kenneth W. Noble, Q.C. for the Respondent

Application: From: 2012 SKQB 2 Heard: February 8, 2012 Disposition: Application for leave is denied Written Reasons: February 21, 2012 By: The Honourable Mr. Justice Herauf Herauf J.A. [ 1 ] This is an application for leave to appeal made under s. 8 of The Court of Appeal Act, 2000 , S.S. 2000, c. C-42.1.

The applicants seek leave to appeal an order made in Queen’s Bench chambers dismissing an application requiring the respondent to “produce all material contained on her Facebook account including any postings, correspondence and photographs up to and including the date of any order made.” [ 2 ] The respondent was injured in an automobile accident on September 10, 1994 when she was less than one year old. She claims to have suffered a brain injury which resulted in loss of enjoyment of life and impairment of conjunctive abilities. [ 3 ] The respondent is now 18 years of age.

During the course of an examination for discovery, the respondent answered the following questions: 270. Q: Okay. Are you interested in anything else on the Internet besides - - A: Well, there’s Facebook. Everybody is into Facebook. … 272. Q: And so you spend some time on Facebook? A: Yeah. 273. Q: How many friends do you have on Facebook? A: 500 274. Q: Oh. A: Mostly people I have known from high school and elementary school. … 276. Q: Yes. How much time do you think you spend on Facebook in a day?

A: Approximately two hours. [ 4 ] Based upon this short exchange, the applicants sought to have the respondent produce and provide access to the private portion of her Facebook account on the footing that this information is relevant to the respondent’s cognitive performance. The respondent opposed the application. [ 5 ] The documentation before the chambers judge included an affidavit of Jan Malkowski. With the permission of the respondent, Ms. Malkowski downloaded the respondent’s Facebook. Ms.

Malkowski deposed that the respondent has 52 friends and her Facebook contains photographs of the respondent, her family and friends; conversations between the respondent and her friends about their social

life; comments on their parents and acquaintances; and, other comments which Ms. Malkowski described as idle chatter and hearsay. [ 6 ] The chambers judge dismissed the application on the footing that the production of the restricted Facebook material would only be ordered if it contained relevant material as opposed to speculation that it may contain relevant material. The chambers judge reasoned: [11] If I were to allow the defendants’ application, it would be tantamount to holding that mere proof of the existence of a Facebook site should allow a party to gain access to all material placed on that site.

It would be an invasion of the plaintiff’s privacy that I am not prepared to make. [ 7 ] Even though the chambers judge dismissed the application with costs, he ordered that the respondent “shall preserve all material on her Facebook account until further order of this Court in the event that some relevant information comes to light in the future that would allow the defendants to renew their application.” [ 8 ] The criteria to grant leave to appeal rests generally on whether the proposed appeal is (

a) of sufficient merit, and (

b) of sufficient importance, to warrant the attention of the Court. See: Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121. [ 9 ] The applicants suggest that the issue in the proposed appeal raises a matter that requires a determination from this Court. More specifically, the applicants submit that the scope of electronic discovery is a developing area of the practice of law that requires guidance from this Court. [ 10 ] With respect, I take a somewhat different view.

There was no issue before the chambers judge that the postings on web-based networking sites such as Facebook are “documents” within the meaning of the rules relating to production and discovery of documents. The core of the issue before the chambers judge was relevance.

He simply was not satisfied that the information before him did “reveal or even suggest that her Facebook site may contain relevant material.” Based upon the nature of the issue and the meagre material before him, it is difficult to suppose the chambers judge may have erred or, put another way, that the proposed appeal is of sufficient merit to warrant the grant of leave.

It is even more difficult to suppose that the issue, reduced to one of relevance that remains open for more specific consideration, is of sufficient importance to merit leave to appeal. [ 11 ] The application for leave to appeal is denied with costs in the usual way. DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of February, A.D. 2012. “Herauf J.A.” Herauf J.A.