The lawyers at Aaron Waxman & Associates are experienced with Disability, Personal Injury and Employment claims.
Eniko Rakosi was involved in a car accident on May 5, 2008. She applied for accident benefits through her accident benefits insurer, State Farm.
State Farm denied various benefits including income replacement benefits, attendant care and medical benefits. The issues failed at mediation and the claimant filed for arbitration.
At the pre-hearing, State Farm asked for productions from Ms. Rakosi’s Facebook account. The arbitrator hearing the case, Arbitrator Bujold ordered Ms. Rakosi to produce all photographs (with her in it) posted to her Facebook profile, included any limited access or private portion of her profile from the date of loss to May 5, 2010.
Arbitrator Bujold held that the test for production was a “semblance of relevance” test.
Previously, State Farm had accessed Rakosi’s Hi5 account (another social networking site) and found photographs which showed the claimant engaged in various social and recreational activities. State Farm believed that her Facebook account would show similar photographs. Since Rakosi’s claim was that she was unable to engage in employment and required help with personal care, State Farm wanted access to this information. They felt there would be a ‘semblance of relevance’.
Ms. Rakosi’s Hi5 site showed pictures of her being attached to a zipline and ziplining. State Farm was of the view that these pictures related to activities related to the disputed benefits. Since Hi5 and Facebook are both social media sites, State Farm made the argument that the Facebook content was relevant.
The Arbitrator was not persuaded by Ms. Rakosi’s counsel that there were reasons against production.
Ms. Rakosi appealed the decision, citing previous decisions that were in favour of claimants like Prete and State Farm, and Leduc and Roman, where the appellant deemed the semblance of relevance test was correctly applied.
The appeal was heard by Director’s Delegate Blackman, who upheld the original decision that Ms. Rakosi should produce her Facebook account.
Director’s Delegate Blackman however found that the original arbitrator had erred by using the “semblance of relevance” test. This test was used in the court system, under the Rules of Civil Procedure (prior to the January 1, 2010 changes). Relevance could be interpreted broadly. When the RCP changes came in January 2010, the rule, Rule 30.02(1) was changed to reflect proportionality, changed from “relating to any matter in issue” to “every document relevant to any matter in issue in an action”.
The rules guiding arbitration stem from the Statutory Powers Procedure Act and instead use a test based on relevance and reasonableness.
Director’s Delegate Blackman felt that using the semblance of relevance test would undermine the alternative dispute resolution system and create a more complicated and costly system while the courts in tort matters are moving in the opposite direction.
Director’s Delegate Blackman found there was no error in extending the inference from one social media site to another and agreed it was likely that her Facebook site would likely contain similar photos.
Aaron Waxman and Associates is a Toronto Personal Injury Law Firm. We handle various types of claims, including accident benefits claims.
If you are involved in a law suit and have social media sites, remember to inform your lawyer you have social media accounts. Do not alter, delete or remove anything from your account during the course of your lawsuit.
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