Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2011 ONFSCDRS 7

FSCO A09-002996

BETWEEN:

DANIEL PRETE

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

MOTION FOR PRODUCTION

Before: Arbitrator Denise Ashby

Heard: Written submissions completed on October 15, 2010

Reopened December 14 and concluded on December 15, 2010

Appearances: Dimple Verma for Mr. Prete

Jonathan B. Schrieder for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Daniel Prete, was involved in a motor vehicle accident on December 10, 2007. He applied for weekly income replacement benefits and housekeeping and home maintenance benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm stopped paying these benefits. The parties were unable to resolve their disputes through mediation, and Mr. Prete applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is Mr. Prete required to disclose all photographs and videos in which his image appears and were created between December 10, 2007 and December 10, 2009, were posted to his Facebook account and remain on his account?

Result:

Mr. Prete is not required to disclose the photographs and video images in which his image appears and were created between December 10, 2007 and December 10, 2009 and were posted and remain on his Facebook account.

Procedural RulingS:

Exclusion of State Farm’s Submissions:

Mr. Prete sought an order striking State Farm’s submissions on the basis that it improperly misstated the issue to be determined. In its submissions, State Farm framed the issue as: “Is the Applicant Required to Produce Material Contained on His Facebook Profile Pursuant to Rule 32.2 of the Dispute Resolution Practice Code?”²

The issue as stated in the Notice of Motion dated July 27, 2010 is set out in paragraph 1 above. It confines the motion to disclosure of images in either photographic or videographic formats. I find that State Farm erred in its statement of the question by expanding the issue to materials. However, I further find its submissions are applicable to the issue as stated in the Notice of Motion. Therefore, I decline to exclude State Farm’s submissions.

Evidence:

State Farm provided two Appendices to its written submissions which it relied on as evidence. The appendices are the public portion of Mr. Prete’s Facebook account. The first is his Facebook Profile page. The second is his Facebook “Wall”. Mr. Prete did not object to my considering them as evidence and referred to them in his submissions. Therefore, I will accept them as Exhibits 1 and 2 respectively.

SUBMISSIONS:

State Farm submits that it has sought disclosure of Mr. Prete’s photographs and video posts to his Facebook account, at its first opportunity, on the basis that they can assist in determining Mr. Prete’s ability to perform his employment and housekeeping and home maintenance duties. Therefore the images are relevant to the issues to be determined at the hearing. State Farm further submits that by inviting 427 people to be his Facebook friends, Mr. Prete has waived any expectation of privacy.³ State Farm relies on decisions relating to tort actions in which there were claims for loss of enjoyment of life. In each of the cases Plaintiffs were required to disclose in their Affidavit of Documents all relevant documents contained on their Facebook profiles.⁴

Mr. Prete submits that his claim is not founded in tort and he is making no claim for loss of enjoyment of life. Pictures of him socializing have no relevance to either his capacity to engage in his pre-accident employment or housekeeping and home maintenance tasks. Further, the Dispute Resolution Practice Code (DRPC) provides a procedure for the admission of surveillance material which is the method by which State Farm should obtain images of Mr. Prete’s post-accident activities. Mr. Prete submits that there is no basis for concluding that there are images relevant to either his employment or his housekeeping claims on the restricted portion of his Facebook account. Therefore, it would be unreasonable to require him to disclose the images.

Mr. Prete submitted that in Leduc it was found that there had to be some evidence that the content on the social network account was relevant to the issues in dispute. Mr. Prete relied on a B.C. Superior Court decision in K.T. v. A.S. in which the court disregarded Facebook photographs which had been entered as evidence as they had no relevance to the activities the Plaintiff claimed she was prevented from engaging in and therefore had no probative value.⁵

Mr. Prete further submits that images he posts on Facebook are a personal and private collection to which he gives access to his friends. This is no different than pictures in his personal albums or on his walls in his home. Therefore, they should not be disclosed.

ANALYSIS:

Social media sites are becoming ubiquitous. They provide a very popular means to communicate with friends and acquaintances on line. This motion raises the question of an applicant’s obligation to disclose photographs or video images uploaded to the restricted portion of a Facebook account to his or her insurer in the context of an arbitration.

Rule 32.3 of the DRPC provides;

Subject to Rule 39, an arbitrator may at any time order the production of documents or the giving of information that he or she considers relevant to the determination of the issues in the arbitration, on such terms as he or she considers appropriate.

As well, Rule 32.2 states:

Subject to the time lines under Rule 39, the parties have an ongoing responsibility to ensure the prompt and complete exchange of documents that are reasonably necessary to determine the issues being arbitrated, including updates to the information previously exchanged and any additional documents obtained.

In Al-Obaidi and Allstate Insurance Company of Canada the Director’s Delegate enunciated the principles to be considered in respect of production issues as follows:

An arbitrator cannot require a party to produce a document that is privileged. Relevance is a necessary, but not necessarily sufficient requirement. In exercising the discretion to make an order, relevance and reasonableness are the guiding principles. The degree of relevance is weighed against other factors, such as the sensitivity of the information, the practicalities of compliance and the timing of the request.

Relevance is framed by reference to the issues being arbitrated. Rule 32.4 makes this explicit. There must be a reasonable relationship between the records sought and the dispute being arbitrated. ⁶

The Commission’s dispute resolution process does not provide for the filing of an “Affidavit of Documents”. Court proceedings are very different from arbitrations. The DRPC is very different from the Rules of Civil Procedure which may provide non-binding guidance to an arbitrator in circumstances where the DRPC is silent. Therefore, as the reasoning in Murphy v. Perger and Leduc v. Roman rely on the production obligations in the Rules of Civil Procedure including the requirement to file an Affidavit of Documents I do not find the reasoning in those cases persuasive in determining whether Mr. Prete should be required to produce the images he posted on his Facebook account

The issues for arbitration stem from Mr. Prete’s claim for an income replacement benefit and housekeeping and home maintenance benefits. There are no photos on either Mr. Prete’s profile page or “Wall” that relate to his claims for these benefits. Therefore, I find that State Farm has failed to establish a reasonable relationship between the images on Mr. Prete’s restricted portion of his Facebook account and the issues to be arbitrated.

As well, the nature of social networking forums make the requirement to disclose images on such forums procedurally burdensome in the context of an administrative law tribunal. Active participants in these sites post and remove images frequently. The images do not necessarily have the date upon which they were created. It is not uncommon for adults to post their baby pictures. This practice exemplifies the reality that an image may be posted on a date relevant to the claim but was not created at a relevant time. It would be a procedural quagmire to set guidelines for the preservation and production of these images in a manner that would render them reliable evidence in a process that is required to provide a speedy, accessible and fair process for dealing with disputes relating to the Schedule.

Finally, the images posted on social networking forums include those of many people unrelated to an applicant’s claims. Those unrelated parties were befriended by an applicant without the expectation of their personal images potentially becoming evidence in an arbitration proceeding. Some of the images may be personally sensitive and only intended to be shared with those in their circle of “friends”.

I find the potential relevance of images posted on a social networking forum to be too remote when weighed against factors such as sensitivity and practicality. Therefore, I find that Mr. Prete is not required to disclose the photographs and video images in which his image appears and were created between December 10, 2007 and December 10, 2009 and were posted and remain on his Facebook account.

EXPENSES:

The parties did not make submissions in respect of expenses. I defer the issue of the expenses of this motion to the hearing arbitrator.

January 13, 2011

Denise Ashby Arbitrator

Date