Arbitrator finds “semblance of relevance” test is too low for production of Facebook photos in dispute resolution hearings

An Ontario arbitrator has dismissed the appeal of an order for a claimant to produce photos from her Facebook account, but in doing so, the arbitrator rejected the “semblance of relevance” test for producing photos from social networking sites.

In Eniko Rakosi and State Farm Mutual Automobile Insurance Company, Eniko Rakosi made a claim for accident benefits after she was injured in a motor vehicle accident in May 2008. She and State Farm did not agree on her entitlement to attendant care, income replacement and medical benefits.

At the arbitration pre-hearing discussion, State Farm sought production of photos from Rakosi’s Facebook account.

The arbitrator found that the claimant’s Hi5 account, a social networking site accessed by State Farm on Oct. 6, 2010, had photographs of the claimant engaged in various social and recreational activities. The arbitrator was satisfied that at least a “semblance of relevance” existed between these photographs and Rakosi’s claim that she was unable to work or engage in certain self-care activities due at least in part to a chronic pain condition.

The arbitrator was persuaded that Rakosi’s Facebook profile likely contained photographs similar to those on the Hi5 site.

Financial Services Commission of Ontario (FSCO) delegate Lawrence Blackman upheld the arbitrator’s order and rejected Rakosi’s appeal. However, in doing so, he agreed with Rakosi’s counsel that the “semblance of relevance” threshold test for producing Facebook photos was too low.

Blackman found that the “semblance of relevance” test came from the Rules of Civil Procedure governing the courts. But the rules guiding arbitration in the Statutory Powers Procedure Act call instead for a test based on relevance and reasonableness.

“Changing commission production from the Rule 32.2 ‘reasonably necessary’ and Rule 32.3 ‘relevant’ tests to a ‘semblance of relevance’ test undermines this alternative dispute resolution system, creating a less expeditious, more complicated and costly, ‘trial by avalanche’ system, just as the courts are moving in the opposite direction,” Blackman ruled.