Social Networking Document Disclosure at FSCO

A recent decision (Eniko Rakosi v. State Farm Mutual Automobile Insurance Company¹) at the Financial Services Commission of Ontario (“FSCO”) held that applicants at FSCO may in the course of pre-arbitration disclosure under the Dispute Resolution Practice Code (DRPC) be required to produce photographs created and posted on their Facebook and other social networking sites during the period in which an applicant was in receipt of, or is applying for accident benefits.

The case involving the Applicant, Eniko Rakosi and the Insurer, State Farm Mutual Automobile Insurance Company (State Farm) involved a dispute over Ms. Rakosi’s claims for income replacement benefits, attendant care benefits and medical/rehabilitation benefits arising from a motor vehicle accident which occurred on May 5, 2008.

A request by State Farm for photographs with the Applicant’s image from her Facebook account was made at a Pre-Hearing Discussion before Arbitrator Robert Bujold on March 24, 2011.

At the pre-hearing discussion, State Farm provided the Arbitrator with a copy of Ms. Rakosi’s public Facebook profile from dates ranging between October 2010 and April 2011. In addition, State Farm provided the Arbitrator with over 30 photographs of Ms. Rakosi from her public profile on a social networking site called “hi5”, which the Insurer accessed in October 2011. These photographs showed Ms. Rakosi participating in outdoor adventure activities (i.e. zip-lining).

Arbitrator Bujold was persuaded by the insurer that the photographs requested bore a semblance of relevance² to the issues, noting, “that Ms. Rakosi’s Facebook profile likely contains photographs similar to those shown in the hi5 site,” despite the fact that the photographs provided to the Arbitrator from the public portion of Ms. Rakosi’s Facebook profile, “did not show Ms. Rakosi engaged in any activities, and, as such, do not in themselves have any probative value.”

Arbitrator Bujold was not persuaded by the Applicant that there were any special considerations weighing against production. In that regard, the Arbitrator did not believe that there could be any serious expectation of privacy with respect to the Facebook photographs, which were accessible to 332 of Ms. Rakosi’s online friends, or that the cost or practicality of production outweighed the Insurer’s right to access the photographs.

Arbitrator Bujold ordered production of all photographs with Ms. Rakosi’s image posted on her Facebook site during the period between May 5, 2008 (the date of the accident) and May 5, 2010 (the date when the test for entitlement to income replacement benefits and attendant care benefits changed).

The decision of Arbitrator Bujold differs from the earlier decision of Arbitrator Denise Ashby in Prete v. State Farm Mutual Automobile Insurance Company³, when a similar request by an Insurer for an Applicant’s Facebook photographs was denied in circumstances where the potential relevance of images posted on a social networking forum were considered too remote when weighed against factors such as sensitivity and practicality. However, in Prete, Arbitrator Ashby did not have access to photographs from the public portion of the Applicant’s Facebook profile, (or hi5 profile for that matter), and in particular photographs showing the Applicant engaging in adventure activities.

Moving forward, applicants at FSCO must be aware that materials posted on their Facebook site (and other social networking sites) may be producible in the context of an accident benefits dispute.

¹ FSCO A10-002152, October 24, 2011. Upheld on Appeal by Adjudicator Blackman in Appeal, Decision No. 2798. Dated May 11, 2012.

² Note that while on Appeal, Arbitrator Blackman upheld the decision of Arbitrator Bujold; he also found that Arbitrator Bujold erred in law by applying the “Semblance of Relevance Test” rather than the “Relevance Test”, which governs under Section 32 of the DRPC.

³ FSCO A09-002996, January 13, 2011.