Privacy in procedural matters Privacy in procedural matters

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• Samoukovic c. Postmedia Network Inc., 2025 QCCS 4726

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Samoukovic c. Postmedia Network Inc., 2025 QCCS 4726

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Facts

The plaintiff, Gordan Samoukovic (Samoukovic), a cardiothoracic surgeon described as a world-renowned expert, sued Postmedia Network Inc. (Postmedia), owner of the National Post, and reporter Ari David Blaff (Blaff) (collectively, the Defendants) for defamation and infringements to the Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12 (the Québec Charter). Samoukovic claimed that an article published by the National Post on August 30, 2024 (the article) portrayed him as an antisemite in the context of the Hamas-Palestine-Israel dispute and sought moral and punitive damages, including for alleged violation of his privacy rights.

During pre-trial examinations, the Defendants sought various undertakings relating to Samoukovic’s social media activity and private communications. Samoukovic had posted “stories” on his Instagram account — posts that disappear within a short period — some of which referred to the Hamas-Palestine-Israel dispute and were later reproduced in the article. His Instagram account had approximately 525 individually approved followers, and comments or “likes” on his stories were visible only to him.

Samoukovic raised objections spanning four categories, namely social media, private communications related to his professional life and third-party rights, private communications related to his personal life and third-party rights, and disproportion and fishing expedition. His objections were based on the legitimate expectation of privacy of third parties under section 5 of the Québec Charter and sections 35 and 36 of the Civil Code of Québec, C.Q.L.R., c. CCQ-1991 (the CCQ). The Defendants argued that no privilege prevented disclosure, that an account accessible to approximately 525 people could not be considered private, and that Samoukovic’s own posts may have caused the harm he alleged.

Decision

The Superior Court of Québec rendered a nuanced decision, maintaining certain objections of Samoukovic’s while dismissing others.

The Court first set out the legal principles governing pre-trial examinations under section 221 of the Code of Civil Procedure, C.Q.L.R., c. C-25.01 (the CCP), which allows examination on any fact relevant to the dispute. The Court noted that the right to privacy in Québec is grounded in section 5 of the Québec Charter and sections 35 and 36 of the CCQ. While the governing principle requires disclosure of all relevant information to the opposing party, courts must protect a party’s right to privacy where applicable.

Regarding the requests for the names of Samoukovic’s Instagram followers from the medical community, the Court maintained his objections, finding the undertaking carried “the unpleasant odour of a fishing expedition” with no logical connection to the issues in dispute. The Court concluded that the Wigmore criteria, as described by the Supreme Court of Canada in R. v. National Post, 2010 SCC 16, were met, and that section 36(6) of the CCQ further supported protecting those third parties’ identities. The Court held that the right to privacy may constitute an exception to the principle of prior disclosure under section 228 of the CCP, and that it outweighed the Defendant’s right to obtain further names. Similarly, the Court maintained the objection to requests for names of approximately 100 European medical professionals who allegedly became aware of the article, finding the undertaking abusive.

However, the Court dismissed objections to undertakings where names were not specifically requested, including requests for copies of Instagram story comments, written exchanges regarding the posts, and communications with colleagues about the article, reasoning that the absence of a specific request for names did not justify privacy-based objections. Finally, the Court held that all information through the examination on discovery was subject to the implied rule of confidentiality and shall not be disclosed without prior court authorization or the parties’ informed consent.

Key takeaways

This decision provides guidance on the application of privacy protections during pre-trial examinations, particularly regarding social media activities. It affirms the fundamental nature of the right to privacy under the Québec Charter and the CCQ, which may constitute an exception to the principle of disclosure governing pre-trial examinations in Québec. While comments and communications on private social media accounts may be subject to disclosure, the identification of third parties who interacted with such posts may be protected.