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.”