Recent decision ‘lesson to plaintiff’s counsel to hold your ground’ on privacy issues

Defence doesn't get 'unfettered access to anything and everything': McLeish Orlando's William Harding

Recent decision ‘lesson to plaintiff’s counsel to hold your ground’ on privacy issues
William Harding, associate at McLeish Orlando LLP.

This article was created in partnership with McLeish Orlando LLP

For any personal injury lawyer, part of the initial conversation with any prospective plaintiff has to be about what a lawsuit entails. It can be years if you want to push to a fair settlement, and it does involve some level of invasion of privacy – depending on the nature of the case, often insurance companies want to speak to friends, family members, and employers. But having said that, “insurance companies don’t get unfettered access to anything and everything and that’s where the role of counsel comes in,” says William Harding, associate at McLeish Orlando LLP.

A recent decision highlights the privacy challenges in lawsuits and the fact that while a level of intrusion is expected, there needs to be reasonable limits. In McDonnell v. Freire, the plaintiff’s partner was killed by a drunk driver in 2020. The driver pled guilty to impaired driving and was sentenced to prison time, and the deceased’s common law spouse then brought an action for $2.5M in damages pursuant to s. 61 of the Family Law Act.

The defence argued that the plaintiff did not meet the definition of spouse under the act — which says that if two people are not married, they must have cohabitated for at least three years — and therefore, had no basis for his claim. To prove that the relationship did not meet the threshold, the defence brought a motion for production of all messages across email, text, Snapchat, and WhatsApp between the couple for a period of three years and five months.

“As you can imagine, the plaintiff had lost their partner, was deeply emotionally affected, and was then asked to disclose years’ worth of personal and private messages to strangers,” Harding says. “Rightly, counsel in this case refused that. It went to a motion and the court agreed with the plaintiff.”

In this instance, Harding notes, there were many other ways to confirm that the couple met the conditions of common law spouses. The plaintiff produced lease agreements, statements from their landlords and others, mail that showed they both resided at the same address.

“It was not necessary — or practical, given the sheer volume of messages the order would produce — to probe into their private lives in that detail,” he says.

Plaintiff counsel argued that a consideration of the factors under r. 29.2.03 of the Rules of Civil Procedure should see the motion dismissed as the time and expense would be considerable; it’s prejudicial to the plaintiff because the messages were sent with the expectation of privacy; and he would be further traumatized if he was forced to gather and share these personal messages. In fact, the court agreed, stating “a plaintiff must usually be prepared top bear some upsetting moments while pursuing a lawsuit. But what is being asked here is shockingly intrusive.”

The decision continues to state that the idea of other litigants and their lawyers reading the written evidence of the plaintiff’s private life “impossible to justify in the circumstances of this case.” Ultimately, the court found: “A proper weighing of the factors in r. 29.2.03 in the context of this case results in any potentially probative value of the messages being far outweighed by the cost, time, and prejudice that would occur if Tristian were required to produce the messages sought. This court orders that the motion is dismissed.”

Though it’s always going to be a case-by-case basis, the probative versus prejudicial weighing is always undertaken and defendants would do well to remember that before pursuing these types of requests and taking up time with a motion,” Harding notes, adding that the cost award of $18K against the defence may see others govern themselves differently going forward.

“The lesson for plaintiff counsel is to stand your ground,” he says. “Don’t agree to all requests. Ask yourself if you really need to put your client through it, or are there other ways to establish the same evidence? Protect your client’s privacy as much as you are able.”

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