Snagg et al. v. Makhoul, 2024 ONSC 3735

This is a personal injury action arising from a motor vehicle accident involving a young pedestrian. The defendant brought a motion seeking an Order compelling the plaintiffs to answer refusals arising from a cross-examination of their lawyer. At its crux, the motion concerned whether the plaintiffs had to disclose and produce any applicable adverse costs insurance that could satisfy any part of a costs judgment against the plaintiffs in the action. The plaintiffs’ law firm admitted that it had an adverse costs policy with the law firm as a named insured, and that the policy applied to the plaintiffs.

Justice Roger held that the policy must be disclosed. Justice Roger applied rules 30.02(2) and 31.06(4), noting that these rules apply to any insurance policy under which an insurer may be liable to satisfy all or part of a judgment in the action, or to indemnify or reimburse a party for money paid in satisfaction of all or part of a judgment. These rules are not limited to policies of insurance in the name of a party or over which a party has possession, control, or power. If a claim of privilege were successfully established for any part of the policy, the rest of the policy would still need to be disclosed.

Isacov v. Schwartzberg, 2018 ONSC 5933

In this personal injury action, the defendant obtained an investigator’s report which contained screen captures from the Instagram account of the plaintiff’s friend. The photos depicted the plaintiff engaging in activities which she claimed to assessors she was not capable of engaging in as a result of her injuries. The defendant brought a motion for disclosure of the plaintiff’s social media accounts. Master Short ordered the plaintiff to produce the requested social media posts, reasoning that the evidence obtained by the defendant’s investigator appeared to be at odds with the plaintiff’s allegations of a serious and permanent injury. Master Short held that the present technological environment is such that there is a need to include Facebook and similar online data relevant to matters at issue in personal injury litigation in the appropriate schedules of each party’s affidavit of documents.