July 04, 2012, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Before: Delegate Lawrence Blackman
Heard: May 11, 2012
Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
1. This appeal is dismissed and the Arbitrator's October 24, 2011 decision is confirmed.
REASONS FOR DECISION
I. NATURE OF THE APPEAL AND BACKGROUND
Ms. Eniko Rakosi, was injured in a May 5, 2008 motor vehicle accident. As a result, she applied for statutory accident benefits available under the Schedule from her first-party insurer, the Respondent, State Farm Mutual Automobile Insurance Company.
The parties disagree as to the Appellant's entitlement under the Schedule, including attendant care, income replacement and medical benefits. Mediation failed to resolve these disputes. At the arbitration pre-hearing discussion, the Respondent sought production of photographs with the Appellant's image from the latter's Facebook account.
Arbitrator Bujold (the "Arbitrator"), by letter decision dated August 23, 2011, with reasons provided October 24, 2011, ordered the Appellant to produce all photographs with her image posted to her Facebook profile, including any limited-access or private portion of her profile, from the May 5, 2008 accident date to May 5, 2010. As in his decision in Bartlett and RBC General Insurance Company, (FSCO A10-000013, August 31, 2011), the Arbitrator held that the test for production was a "semblance of relevance," but that in a special case:
… a party may not be required to produce documents or give information, although seemingly relevant, where the degree of relevance does not warrant production when weighed against the following considerations: the sensitivity of the information requested; the time, effort and costs of compliance; the availability of the requested information through other sources; and the timing of the request.
The Arbitrator found that the Appellant's Hi5 account, a social networking site, accessed October 6, 2010 by the Respondent, had photographs of the Appellant engaged in various social and recreational activities. The Arbitrator was satisfied that at least a semblance of relevance existed between these photographs and the Appellant'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 the Appellant's Facebook profile likely contained photographs similar to those on the Hi5 site.
The Arbitrator was not persuaded that there were special considerations weighing against production. Nor was he persuaded, the Appellant having provided access to 332 online friends to view pictures on her Facebook wall, that the Appellant had an expectation of privacy that outweighed the Respondent's right to access potentially relevant documentation. The Arbitrator was also not persuaded there were any practicalities of compliance or reliability concerns that should prevent the Respondent from gaining access to the Facebook photographs.
The October 28, 2011 Notice of Appeal sought, in part, leave that this appeal from a pre-hearing motion decision be accepted at this time, arguing that the Arbitrator had erred in law by lowering the threshold for production.
Upon considering both parties' submissions, by December 20, 2011 preliminary appeal order, Arbitrator Blackman exercised his discretion under Rule 50.2 of the Dispute Resolution Practice Code to accept this appeal, in part, based on conflicting arbitration decisions on this important issue, an issue that was novel at the appellate level.
The Appellant argues that the Arbitrator erred in law as follows:
1. The "semblance of relevance" test suggests, at best, "a tenuous relationship, superficial proximity and remote connection," leading to "improper and unnecessary fishing expeditions" giving insurers routine access to an insured's Facebook photographs. If such an approach is followed, in fairness, insureds should also have as of right full production of an insurer's file.
2. Prete and State Farm Mutual Automobile Insurance Company, (FSCO A09-002996, January 13, 2011), correctly applied the relevance and reasonableness tests set out in Allstate Insurance Company of Canada and Al-Obaidi, (FSCO P99-00009, May 2, 2000), in not requiring disclosure of photographs and video images where the insured's image appeared, that were posted and remained on the insured's Facebook account.
3. Leduc v. Roman, 2009 CanLII 6838 (ON SC), held that there must be some evidence of relevance to compel disclosure. None of the pictures posted on the Appellant's Hi5 site show her working or engaged in housekeeping activities. The Arbitrator, himself, found the posted photographs overwhelmingly irrelevant to the issues in dispute and of little value. While the ziplining pictures alone may be relevant, they are not necessarily determinative, especially as people only put their best face forward on such sites.
4. In any event, the production order was fundamentally wrong, being based not on what was found on the Appellant's Facebook public site, but what was found on her Hi5 page.
5. The Arbitrator further erred in the scope of the production order that included the Appellant's private section of her Facebook site and production prior to October 15, 2008, when there was no dispute as to the Appellant's benefit entitlement.
6. In addition, the production order was excessive as the Respondent has already had a fair amount of disclosure from the Appellant's public site.
7. Murphy v. Perger,  O.J. No. 5511 (S.C.J.), is incorrect in holding that the more Facebook friends a person has, the less entitlement there is to an expectation of privacy. Facebook communications are no different from e-mail, postcards or letter mail, "except to offer a more cost effective and immediate way to share the information." As Facebook allowed the Appellant to adjust her settings to allow or restrict access to particular photo albums, significant weight should be given to the privacy level settings she chose.
8. Facebook acts as a form of online "self-surveillance." To order production will simply cause lawyers to advise their clients to stop using Facebook type sites.
The Respondent submits that while relevance is not defined in the Code, it is well established that "semblance of relevance," rather than clear relevance being established between the documents sought and the issues in dispute, is the prerequisite to a pre-hearing production order.
The Respondent relies on Campeau and Liberty Mutual Insurance Company, (FSCO A00-000522, March 12, 2001), that adopted a broad stroke, streamlined approach in an adjudicative system where neither affidavits of documents nor oral discovery are available. Thus, a class of documents important to the issues in dispute should not be determined by one party and are prima facie producible, subject to privilege and countervailing factors such as clear irrelevance.
Thus David and Allstate Insurance Company of Canada, (FSCO A02-000969, November 1, 2003), held that this abbreviated dispute resolution process must allow sufficient disclosure for a party to assess the strengths and weaknesses of its own case and that of the other party, and obtain admissions and evidence that may impeach the credibility of witnesses, all with a view to promoting settlement and making the hearing process more efficient, shorter and fairer.
As held in Nigro and State Farm Mutual Automobile Insurance Company, (FSCO A99-000656, April 28, 2000), it is sufficient to order documentation produced if there is a reasonable possibility that information in a party's possession is relevant to the issue in arbitration. As stated in Uka and Aviva Canada Inc., (FSCO A07-001692, October 31, 2008), pre-hearing production is necessarily broader than what may ultimately be allowed into evidence at a hearing.
As to whether a semblance of relevance was established in this case, the Respondent submits:
1. As stated in Leduc v. Roman, Facebook is intended to make the world more open and connected. A party maintaining a private or limited access Facebook profile stands no different than one who sets up a publicly available profile. The more extensive court case law should be followed to infer the likely existence on a limited access Facebook profile of content relevant to the issue of how a claimant has been able to lead his or her life post-accident.
2. In Frangione v. Vandongen et al., 2010 ONSC 2823 (CanLII), where the publicly accessible portions of a Facebook site included photographs at social events and public places, production was ordered from the limited access files. Godfrey and Royal & SunAlliance Insurance Company of Canada, (FSCO A09-002708, February 13, 2011 letter decision), held that claims for accident benefits put a claimant's ability to work and participate in activities of daily living in issue. In the present case, the Arbitrator was satisfied that the Facebook profile likely contained photographs similar to those found on the Hi5 site. Accordingly, there was a semblance of relevance between the Appellant's private Facebook photos and the issues to be determined at arbitration.
3. In Prete, the Arbitrator found that there were no photographs in evidence that related to the income replacement or housekeeping benefits in issue and, hence, is distinguishable.
As to any special circumstances outweighing access in this case, the Respondent argues that:
1. Any expectation of privacy by the Appellant does not outweigh the Respondent's right to potentially relevant Facebook documents. Murphy and Frangione found that there was no reasonable expectation of privacy where numerous people had been granted access to a claimant's limited access portion of the Facebook site. Godfrey held that the purpose of Facebook is social networking, and any invasion of privacy is minimal.
2. Campeau confirmed a streamlined approach for a producible category of documents, even if it included entries ultimately entirely irrelevant, extremely confidential and highly prejudicial. Devries and Western Assurance Company, (FSCO A08-002046, June 24, 2009), held that the exchange of relevant information is fundamental, even though personal, private or even embarrassing information may be disclosed.
3. There is no prejudice in producing photos in the period benefits were paid. This is similar to the routine production of pre-accident clinical notes and records. Campeau and Nigro both note that "broad production orders are routinely made without needing to demonstrate the relevance of each and every document contained in those records."
1. The Semblance of Relevance Test
Respectfully, for the following reasons, Arbitrator Blackman was persuaded that the Arbitrator erred in law in finding that the test for documentary production at the Commission is a "semblance of relevancy:"
The "semblance of relevancy" test arises not out of this administrative tribunal, but in the court system out of the former wording of Rule 30.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended. In the Civil Justice Reform Project, Summary of Findings and Recommendations, November 2007, Osborne J. states that:
The scope of documentary discovery, as established in rule 30.02, encompasses "every document relating to any matter in issue in an action." This has widely been interpreted in case law to require production if a document has a "semblance of relevance" … Relevance under these rules is a much broader and looser test than is applicable at trial, and has led some to observe that "trial by ambush," the original concern, has been replaced by "trial by avalanche." [emphasis in original]
This tribunal was created as a more expeditious, less complicated, less expensive, meaningful alternative to the court procedure. This tribunal follows not the Rules of Civil Procedure, but most fundamentally, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the "SPPA"). Subsection 15(1) of the SPPA provides, in part, that a tribunal may admit as evidence at a hearing any document "relevant to the subject-matter of the proceeding," but may exclude anything unduly repetitious (emphasis added).
The Code sets out procedural rules specific to this Commission, consistent with the SPPA. Under Rule 32.2 of the Code, parties have an ongoing responsibility to ensure the prompt and complete exchange of documents "reasonably necessary to determine the issues being arbitrated." Rule 32.3 provides, in part, that an arbitrator may at any time order the production of documents considered "relevant to the determination of the issues in the arbitration," on such terms as are appropriate (emphasis added).
In the Civil Justice Reform Project, Osborne J. recommended that:
The "semblance of relevance" test ought to be replaced with a stricter test of "relevance." This step is needed to provide a clear signal to the profession that restraint should be exercised in the discovery process and, as the Discovery Task Force put it, to "strengthen the objective that discovery be conducted with due regard to cost and efficiency" … In keeping with the principle of proportionality, the time has come for this change to be made …
This recommendation is consistent with Rule 1.1 of the Code, that the rules of this tribunal are to be broadly interpreted to produce the most just, quickest and least expensive resolution of the dispute.
On January 1, 2010, Rule 30.02(1) of the Rules of Civil Procedure was changed to reflect Osborne J.'s recommendation. "Relating to any matter in issue" has been replaced with "[e]very document relevant to any matter in issue in an action" (emphasis added).
The courts also introduced the proportionality rule in Rule 1.04(1.1), that "[i]n applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding."
Delegate Naylor held, in Al-Obaidi, that relevance and reasonableness are the tests for production at the Commission:
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 … There must be a reasonable relationship between the records sought and the dispute being arbitrated.
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.
That affidavits of documents and examination for discovery do not exist in this alternative dispute resolution process does not validate replacing "relevance," mandated by the SPPA and the Code, with "semblance of relevance" that arises from a court rule that is now obsolete, as well as inapplicable. Nor does the absence of oral discovery and affidavits of documents make irrelevant documents relevant.
Rather, the absence of affidavits of documents and oral discovery at the Commission has led to a more streamlined, broad stroke process of ordering production, within set parameters, of a prima facie relevant class of documents, subject to submissions as to why that starting point for production should be narrowed or broadened in a particular case. This approach began with clinical notes and records as a means of enhancing an expeditious and cost-effective alternative dispute resolution system, not to defeat that legislative intent.
Campeau did not find that the test for production was "semblance of relevance." Rather, adjusters' specific file notes, that came into existence solely as a result of the accident in question, were "not merely possibly relevant, but likely relevant to both the special award claim and to the entitlement claims." Conversely, the routine production of general insurer policy manuals was refused in Campeau on the basis that the reasonable necessity or relevance of such cumbersome and expensive production requests was not established.
The broad stroke approach, where it has been found to be appropriate, has, in practice, avoided time consuming, expensive determinations of the relevance and any countervailing considerations of each specific document within a class of documents. This broad stroke approach strives to balance the search for the truth with the recognition that cost and time efficiency are also fundamental to justice. The broad stroke approach endeavours to avoid both trial by ambush and trial by avalanche. Nonetheless, it is still open for a party resisting production of specific documents falling within the broad category to persuade the adjudicator why such documents should not be produced.
This leads to the further question whether limited access Facebook photographs constitute a class of documents that, by their presumed existence, are prima facie relevant and reasonably necessary to determine the issues being arbitrated, and are producible as such in this alternative dispute resolution system.
2. Are limited access Facebook photographs a prima facie producible class of documents?
A summary of some of the case law submitted in this case is useful.
Desgagne v. Yuen et al. (2006), was a claim for damages for personal injury and loss of income. The Court denied as speculative the defendants' request for production, in part, of documents on the plaintiff's computer hard drive. The Court held that:
It is true that documents contained in electronic form present new challenges. That does not mean, however, that the Court should lose sight of the underlying principles regarding document production … the documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or document repository. A request to be able to search a party's filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed.
The Court held that it did not "mean to say that hard drives and other electronic documents need never be produced … However in this case, the threshold of relevance has not been met."
In Murphy v. Perger, the plaintiff's productions included photographs of her participating in various pre-accident activities. Witnesses were to be called at trial to testify about the detrimental impact the accident had on the plaintiff's enjoyment of life and her ability to participate in avocational and social activities. The defendant sought production of copies of the Plaintiff's private Facebook web pages.
Rady J. held that the court must be satisfied that documents sought to be disclosed were relevant to an issue in the proceeding. The plaintiff, having served certain photographs, must have considered them relevant to her claim. Given Facebook was a social networking site and that the plaintiff's public site included photographs of her engaged in various social activities, it was reasonable to conclude there were likely relevant photographs on the private site.
Rady J. held that a court had jurisdiction to refuse disclosure where the information was of minimal importance to the litigation but may constitute a serious invasion of privacy, citing M.(A.) v. Ryan (1994), 98 B.C.L.R. (2d); aff'd  1 S.C.R. 157, that:
In considering whether to compel disclosure of private documents (that is non-public documents), the Court must ask whether the particular invasion of privacy was necessary to the proper administration of justice and, if so, whether terms were appropriate to limit that invasion.
On the one hand, persons who have been injured by the tort or breach of fiduciary duty of another ought not to be driven from the judgment seat by fear of unwarranted disclosure, a sort of blackmail by legal process, victimizing the injured person a second time.
On the other hand, a defendant ought not overpay a claimant or be deprived of an assessment of the loss he actually caused, founded on all relevant evidence.
Rady J. concluded that the plaintiff could not have a serious expectation of privacy, given 366 people had been granted access to the private site. The defendant's need to have the photographs to assess the case was found to be of greater weight. If there were concerns as to any personally embarrassing photographs, counsel were to advise.
Leduc v. Roman was also a tort claim for damages resulting from a car accident, including loss of enjoyment of life. The Master had dismissed a motion to compel production of all pages on the plaintiff's Facebook profile based solely on the existence of the site. The Master held that speculation of what may be on the site or what is on a typical site was insufficient, that the same could be applied to a photo album or a diary.
On appeal, Brown J. held that the Master erred in not applying the inference from Murphy, based on the nature of Facebook, that relevant documents likely existed on the limited-access profile. A further error was dismissing the motion prior to cross-examination on the plaintiff's affidavit of documents about the nature of the content posted on his Facebook profile.
The Court, addressing the then still applicable disclosure rule of "every document relating to any matter in issue in an action," required evidence, not mere speculation, that a document was relevant before ordering production. The Court agreed with the Master that mere proof of the existence of a Facebook profile did not entitle access to all material placed on that site, as some material may relate to the matters in issue, while some may not.
The Court noted that Facebook was a social website. Photographs posted to a Facebook profile had been admitted in other cases as evidence relevant to demonstrating a party's ability to engage in sports and other recreational activities where a plaintiff had put his enjoyment of life or ability to work in issue. The Court held that it was beyond controversy that a person's Facebook profile may contain documents relevant to the issues in an action.
Agreeing with Murphy, the Court found it reasonable to infer from the presence of content on a party's public profile that similar content likely existed on the private profile. Where a party's public page posted only the user's identity, name, photo and city of residence, a court could still infer from Facebook's social networking purpose that users intended to make personal information available to others and that the social networking site likely contained some content relevant to the issue of how the plaintiff had been able to lead his life since the accident.
As the Simplified Rules cases of the Rules of Civil Procedure did not permit discovery as of right, where a party learned of the existence of a Facebook profile, fairness dictated allowing a discovering party to determine whether the profile contained content relevant to any matter in issue in an action. One option was requiring the plaintiff to preserve the posted material, swear a supplementary affidavit of documents identifying any relevant Facebook documents and allow the opposite party to cross-examine on the affidavit to ascertain what content was posted.
In Kent v. Laverdiere, 2009 CanLII 16741 (ON SC), Master Haberman denied a request for a supplementary affidavit of documents listing the pages on Facebook, based on (1) the 1,500 documents involved, (2) the time required (the plaintiffs estimating a minimum of 75 hours to determine the relevant documents, plus the time to complete cross examination and attend an ensuing motion for rulings on a document by document basis), and (3) the late timing of the request that, if allowed, would likely delay trial.
The materials sought included photos of individuals not involved in the litigation. The Master held that the documents would have to be reviewed to ensure only relevant materials were produced and third-party privacy rights were respected. While Facebook was relatively new, plaintiffs' photographs were not. In seeking production in personal injury actions, defendants were generally after pre-accident and post-accident photographs. That these were now mounted on a site that could be viewed by pre-determined individuals where a plaintiff had a private Facebook account did not make them any more relevant than they were before the existence of Facebook or, arguably, more public.
Addressing the threshold of semblance of relevance test then applicable before the courts, the Master held that before Leduc v. Roman can be invoked, there must be something to suggest at least some possible connection between the matters in issue and the documents sought. The defendant had not come forward with any suggestion of what the sites might contain. There was nothing in the pleadings or in evidence regarding two of the three plaintiffs to suggest there could possibly be anything relevant to their claims under the Family Law Act for damages for loss of care, comfort, guidance, support and companionship, or for out of pocket expenses, loss of income and damages for nervous shock.
But for her other concerns, the Master would have reached a different conclusion for a third plaintiff, in view of a boiler plate pleading that the accident lessened her enjoyment of life, disfigured her, affected her ability to find romantic companionship and a spouse, and to earn income. The Master held that if there were photos on this website showing the plaintiff as a healthy, happy adolescent, enjoying life or with a beau or referenced her dating and being socially active, that would be relevant and would meet the production test.
Nonetheless, the Master stated that much of the kind of Facebook information sought would have been equally available by way of surveillance, a practice the Master described as commonly utilized by defence counsel in personal injury actions to test a plaintiff's assertions.
Schuster v. Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971 (ON SC), held that the defendant had not established a basis for a preservation order, or put forward evidence beyond a bald assertion and speculation that the plaintiff's Facebook might contain evidence that her injuries had not affected her as much as claimed, or that it contained information relevant to her loss of income claim.
Price J. noted that in Wice v. The Dominion of Canada General Insurance Company, 2009 CanLII 36310 (ON SC), the plaintiff's Facebook profile included information and relevant photographs depicting his participation in social activities. Wice had inferred from the nature of Facebook that other relevant documents were likely included in the plaintiff's profile.
However, in Schuster the evidence relied on was found not to support that inference. Price J. was not prepared to draw an inference from the mere nature of Facebook as a social networking platform or the fact that the plaintiff possessed a Facebook account as evidence that the account likely contained information relevant to her claim. The photographs the defendant obtained from the plaintiff's account did not appear, on their face, to be relevant.
The Court held that Facebook was a relatively recent phenomenon. The applicable disclosure obligations and remedies were still being articulated. The Federal Privacy Commissioner had recently confirmed that Facebook users have a privacy interest in their profiles which the Personal Information Protection and Electronic Documents Act, ("PIPEDA"), sought to protect. The Assistant Privacy Commissioner of Canada, in the Report of Findings into the Complaint filed by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) against Facebook Inc. under PIPEDA, July 16, 2009, stated that.
… In an age where it appears almost everyone is leaving their digital footprints everywhere, including their views, pictures, beliefs and sometimes romantic foibles, our notions of controlling one's personal information – the foundation on which the Personal Information Protection and Electronic Documents Act (the Act) is built – are being significantly challenged.
The Assistant Commissioner described the position of Facebook's owner as follows:
Contrary to common public reports, full profile data on Facebook is not available to everyone on the Internet … it is not even available to most users on Facebook … Facebook's privacy settings have played a central part in giving users control over who has access to their personal information by allowing them to choose the friends they accept and networks they join … In addition to the default access restrictions that are part of Facebook's core friend and network architecture, users are given extensive and precise controls that allow them to choose who sees what among their networks and friends, as well as tools that give them the choice to make a limited set of information available to search engines and other outside entities.
The Court held that the plaintiff had set her Facebook privacy settings to private and had restricted its content to 67 "friends." She had not created her profile for the purpose of sharing it with the general public. Unless the defendant established a legal entitlement to such information, the plaintiff's privacy interest in the information in her profile should be respected.
In Frangione v. Vandongen et al., 2010, applying the court's current relevancy production test, Master Pope ordered, in part, that the plaintiff produce all material contained on his Facebook website including any postings, correspondence and photographs up to and including the date of the order.
The Master found the relevancy test more onerous than semblance of relevance. The Master inferred, having reviewed photographs of the plaintiff interacting at a wedding and other public places as well as his communications with friends, that it was likely the plaintiff's privately-accessed Facebook site contained similar relevant documents.
The Master found the plaintiff's assertion of privacy preposterous, access having been granted to 200 people, and that there would be little or no invasion of the plaintiff's privacy if production was ordered of all portions of his Facebook site. The Court was satisfied that the primary use of the documentation would be to assess the plaintiff's damages for loss of enjoyment of life and his ability to work. Further, the action was still at the discovery stage and a trial judge would ultimately decide the relevancy of a document when all of the evidence was before the court.
For the following reasons Arbitrator Blackman was not persuaded that restricted access Facebook photographs are a class of documents that are producible as being prima facie relevant and reasonably necessary:
As stated in Al-Obaidi, relevance is framed by the issues in dispute. There must be a reasonable, rational relationship between the records sought and the dispute(s) being arbitrated.
This Commission's broad stroke approach to production evolved to promote greater efficiency through fewer production disputes; it was not meant to encourage the production of a class of documents of little or speculative relevance.
As held in David and Allstate Insurance Company of Canada, the scope of pre-hearing production may be necessarily broader than what is admitted as evidence at the hearing. Nonetheless, as set out above, the test for production of a class of documents is not a "semblance of relevance."
Facebook production may contain entirely irrelevant, extremely confidential and highly prejudicial records. The inherent privacy concerns are set out above, including insured persons being "driven from the judgment seat by fear of unwarranted disclosure." Such records may also contain photographs and records pertaining to third parties not involved in the litigation. As stated in Schuster, a legal entitlement to such information must be established.
The court cases, unlike Commission proceedings, pertain to significantly broader tort claims that encompass general damages for loss of enjoyment of life and pain and suffering. Leduc focused on Facebook's primary purpose as a social website enabling people to share information about how they led their social lives. The Court held that to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website risked depriving the defendant of access to material that may be relevant to ensuring a fair trial. Neither loss of enjoyment of life nor pain and suffering are recoverable benefits under the Schedule.
Leduc states that it is beyond controversy that a person's Facebook profile may contain documents relevant to the issues in an action. It may be beyond controversy that a person's filing cabinet or photo albums, or an insurer's policy manuals may contain documents relevant to the issues in any action. However, even in the far broader tort claims, it is disputed in the case law that bald assertions and speculation based on the mere nature of Facebook are sufficient to order such production any more than bald assertions and speculation will allow a party to search another party's cabinets or albums.
Rule 32.3 of the Code requires a relevant, rational relationship between the documents requested and the issues in the arbitration. Rule 32.2 of the Code requires the exchange of documents that are reasonably necessary to determine the issues being arbitrated. Unlike medical records or adjuster's notes, the presumed relevance and reasonable necessity of Facebook documents, or the centrality of such documents to the legislatively restricted, special damages under the Schedule that may be in issue, is much more difficult to discern. The social network aspect of Facebook, while still perhaps having a semblance of relevance, in the view of some court cases applying the prior court production rule regarding the ability to work, is significantly more remote than claims for loss of enjoyment of life. As a class of documents, Facebook production appears more akin to policy manuals, the routine production of which was rejected in Campeau.
While Arbitrator Blackman found that the mere existence of a Facebook profile is insufficient for a production order, there is the further question whether there was an error in law in the production order in this case.
Following Al-Obaidi, this involves, on a case-by-case basis, a two-stage analysis. First, the requested documents must be relevant. Second, as stated by the Respondent, Al-Obaidi establishes that relevance "is a necessary, but not sufficient requirement." Notwithstanding relevance having been established, there is the further question of whether production is reasonably necessary, which requires weighing the degree of relevance against other pertinent considerations.
3. Are the limited access Facebook photographs relevant in this case?
Arbitrator Blackman was not persuaded that there is an error in finding the limited access Facebook photographs relevant in this case, for the following reasons:
The Appellant's accessed Hi5 account includes pictures showing the Appellant being attached to a zip line. While ziplining may not be an employment or a self-care task, the Arbitrator was not persuaded that there is an error in finding that preparing for an activity that can involve some significant measure of physical action or precaution, presently relevant to the determination of the issues in arbitration. The Respondent has, at this point, established a reasonable, rational relationship between the Hi5 ziplining pictures and the Appellant's ability to perform activities relevant to the disputed benefits. The Arbitrator was not persuaded that the absence of such a reasonable, rational relationship to the issues to be determined of each and every photograph in the public access Hi5 account detracts from the relevance of the ziplining pictures.
Counsel for the Appellant endeavoured on appeal to give evidence of her own ziplining experiences in the context of personal injuries. Counsel cannot give evidence. In any event, it is not for me, in this appeal from a preliminary production order, to prejudge the weight that may or may not be given by a hearing arbitrator to similar, but allowable, evidence that may be given regarding ziplining.
Prete is distinguishable. There, the arbitrator held that the insurer had failed to establish a reasonable relationship between the images on the restricted portion of his Facebook account and the issues to be arbitrated. Here, there is a reasonable relationship between certain of the Hi5 photographs and the issues to be arbitrated. Case law has established that an adjudicator may infer from photographs posted on a public social networking site what may reasonably be expected to be on restricted areas within that site.
Although Facebook and Hi5 are separate, the evidence before Arbitrator Blackman was that both are social networking sites. The Arbitrator found no error in extending the inference from unrestricted access documents on one site to restricted access documents on a similar site.
4. Did the Arbitrator err in law in weighing the degree of relevance against other considerations?
Arbitrator Blackman then turned to whether the Arbitrator erred in weighing the degree of relevance against other pertinent considerations. Al-Obaidi sets out that these other considerations include:
(a) The sensitivity of the information.
(b) The practicalities of the compliance.
(c) The timing of the request.
The practicalities of compliance addresses the court principle of proportionality set out in Rule 1.04(1.1) of the Rules of Civil Procedure, that orders shall be proportionate to the importance and complexity of the issues and the amount involved in the proceeding. The Arbitrator found that reasonable necessity under Rule 32.2 of the Code includes the principle of proportionality. Thus, the considerations set out in Rules 29.2.03(1) and (2) (Proportionality in Discovery) under the Rules of Civil Procedure are also proper considerations to be weighed against the degree of relevance:
(d) Whether the time required to produce the document would be unreasonable.
(e) Whether the expense associated with producing the document would be unjustified.
(f) Whether requiring the party to produce the document would cause him or her undue prejudice.
(g) Whether requiring the party to produce the document would unduly interfere with the orderly progress of the arbitration.
(h) Whether the document was readily available to the party requesting it from another source.
(i) Whether the order would result in an excessive volume of documents required to be produced.
Leduc held that an Appellate Court should only interfere in the decision below if, on a standard of correctness, the Master erred in law, exercised his discretion on the wrong principles or misapprehended the evidence such that there was a palpable and overriding error. The Court also held that the requisite level of proof for a Rule 30.06 motion (where an affidavit is incomplete or privilege improperly claimed) should recognize one party has access to the document and the other does not. This underlying concern also applies to this second stage of production inquiry.
The Appellant has not provided any evidence of the sensitivity or specific prejudice of the photographs in the restricted or private areas of her Facebook profile. Nor has she provided any evidence regarding the practicalities of compliance. The Appellant has not established that there would be any procedural quagmire, as queried in Prete, in the production order that would impede a speedy, accessible and fair process. The production request was not given late in the process; there is no evidence of excess time or expense necessary to comply or that there is an excessive volume of documents. There is no evidence that the Appellant is being "blackmailed by the legal process."
The Appellant has not provided any case law for the proposition that lawyers possibly warning their clients about surveillance and to curtail their activities has resulted in surveillance evidence being rejected. The Arbitrator was not persuaded that the possibility that lawyers may advise their clients to refrain from using Facebook is a basis to deny production of documentation otherwise relevant and reasonably necessary to determine the issues being arbitrated.
In Frangione, the Master was not persuaded to exclude photographs and communications typically found on a Facebook site as an unnecessary and irrelevant body of evidence, based on the plaintiff's proportionality argument that there was a more credible body of abundant medical evidence about his injuries on the same issue. The Arbitrator was not persuaded that the Arbitrator erred, in the circumstances of this case, in taking the same approach. Rather, it should be for the hearing arbitrator to consider the respective weight to be assigned to the documentation allowed into evidence.
Arbitrator Blackman was not persuaded that the Arbitrator exercised his discretion incorrectly in the circumstances of this case and the evidence before him, that the bald privacy rights claimed by the Appellant did not outweigh the Respondent being able to assess the Appellant's claim by having access to the restricted portion of her Facebook profile.
Nor was Arbitrator Blackman persuaded that there was a palpable or overriding error in the scope of the production order that included the period May 5 to October 15, 2008, when benefits were not in dispute. Production of an insured person's post-accident clinical notes and records are not automatically restricted to the entitlement period in dispute. Similarly, it is unclear why in this case the Facebook photographs should be so restricted, especially when the contrast between the two periods of time would appear to be a pertinent issue.
Accordingly, this appeal is dismissed and the Arbitrator's October 24, 2011 decision is confirmed.