Social media sites, like Facebook, are inexhaustible sources of personal information which can constitute evidence in the context of employer-employee disputes. In matters related to evidence, the general rule is that any relevant evidence is admissible.1 Moreover, the courts have ruled that an excerpt from a Facebook page is admissible into evidence, provided that it has not undergone [translation] “severe editing” which would alter its essence or prevent opposing party from contradicting it.2 However, the courts must set aside such evidence, even on their own initiative, when the following two criteria are met:3 There is a breach of fundamental rights and liberties;4 and Using such evidence may bring the administration of justice into disrepute. In what contexts have tribunals specialized in labour law decided to set aside evidence taken from a Facebook page? The fake social profile In 2012, in the case of Campeau c. Services alimentaires Delta Dailyfood Canada inc.,5 the Commission des lésions corporelles (“CLP”) ruled on the admissibility of excerpts from a private Facebook page in the context of the contestation by an employee of several decisions of the Commission de la santé et de la sécurité du travail (“CSST”) regarding an employment injury. In this case, the CLP refused to admit these excerpts as evidence since the employer had no serious reasons for questioning the employee’s honesty and in fact, obtained access to her private Facebook page by creating a fake social media profile which contained information intended to entice the employee into accepting a fake friendship request. In fact, the employer had created a false profile especially designed to capture the employee’s attention: work with the Cirque du Soleil, studies at the same university and similar artistic preferences. The CLP refused to take into consideration the employer’s evidence obtained through social networks for the following reasons: The use of a fraudulent scheme by the employer to access the Facebook page constituted an illicit and serious breach of the employee’s right to privacy; and The impossibility of obtaining this information legally (private profile which was not available for access by the employer), combined with the absence of prior serious doubts as to the employee’s honesty which would justify the employer in acting as it did, would have brought the administration of justice into disrepute. The CLP further concluded that the employer’s actions constituted an unrestrained incursion into the employee’s private life and it could not grant carte blanche for such spying. Involvement of a third party In 2016, in the case of Maison St-Patrice inc. et Cusson6, the Tribunal administratif du travail (“TAT”) refused to admit into evidence excerpts from the Facebook profile of an employee filed by the employer. The employee had a Facebook account which was restricted by privacy protection parameters and exercised active control over the visibility of her posts. However, the employer had succeeded in obtaining excerpts from this private account through an unidentified third party, possibly a colleague and “Facebook friend” of the employee, which the TAT concluded was subterfuge. The employee further testified to the effect that it was not the first time the employer had committed unjustified breaches of the privacy rights of its employees. Indeed, she had herself been asked by the employer to disclose the contents of the Facebook profile of a work colleague to which she had access. The TAT concluded that the employer had seriously breached the employee’s privacy, without a real interest or serious purpose for doing so, in hopes of possibly uncovering a lack of honesty. In order to act in this manner, the employer’s breach of the employee’s privacy should have been justified by rational, serious and necessary reasons, which was not the case. Furthermore, the employer could not use subterfuge to obtain information found in the private social profile of the employee. Since the illegally obtained evidence brought the administration of justice into disrepute, it could not be accepted by the tribunal. Conclusion Although it may sometimes seem appropriate for an employer to check the posts of its employees on social networks, some information obtained may be inadmissible as evidence before a tribunal. As in the case of surveillance, employers should ensure that, before they take actions which may constitute a breach of their employees’ privacy rights, that they have serious reasons for questioning their sincerity and honesty and avoid conducting systematic or random verifications. Furthermore, the creation of fake profiles, involving a third party and the use of other ruses or deceptive strategies to obtain confidential information without sufficient reasons may be very viewed poorly by tribunals, resulting in their refusal to consider evidence collected in such a manner. Civil Code of Québec, art. 2857, hereinafter “CCQ”. Particularly see on this subject: Landry et Provigo Québec Inc. (Maxi & Cie), 2011 QCCLP 1802, para 44-48. CCQ, art. 2858 ; Act respecting administrative justice, CQLR c. J-3, art. 11. What is most often breached is the right to privacy: Canadian Charter of Rights and Freedoms, Part I of the The Constitution Act, 1982 [Schedule B to the Canada Act 1982 (UK), 1982, c. 11 sec. 7, 8 and 24; Charter of Human Rights and Freedoms, CQLR, c. C-12, sec. 5 and 9.1. 2012 QCCLP 7666. 2016 QCTAT 482.
Jordy Philippe Bernier Lawyer
Jordy Philippe Bernier practises primarily in the fields of civil and commercial litigation and business law. He has a variety of different mandates in the context of his multidisciplinary practice, particularly in the areas of manufacture's and vendor's liability and debt recovery and collection. He also assists in setting up corporate finance structures.
Jordy acquired a masters of business administration (MBA) in the cooperative program at the Université de Sherbrooke and he draws on his skills in strategic management and value creation in conducting diagnostics of businesses for clients and presenting integrated organizational restructuring plans to executives and members of boards of directors.
On the strength of this experience, Jordy assists entrepreneurs in all areas of the existence and operations of their companies, particularly concerning their corporate structure, the relationship between shareholders, corporate finance and intellectual property issues.
- Contribution to the employment law bulletin: Social media: when the court declares the evidence inadmissible, February 2017.
- Teaching assistant at the Faculty of Law of the Université de Sherbrooke , 2016
- Winner of the prize for excellence in legal writing from Les Éditions Yvon Blais
- LL.B., Université de Sherbrooke, 2018
- M.B.A., Université de Sherbrooke, 2018
On September 23, two teams from the Sherbrooke office participated in the Relais du Lac Memphrémagog to raise money for the Fondation Christian Vachon, whose mission is to support school perseverance by helping children at risk. The two teams overcame the challenge, running 122.4 km and raising a combined total of $4,500, despite the sweltering heat. Participation in this activity confirms Lavery’s deep commitment to community engagement and the quality of its role as a corporate citizen. From left to right : Vincent Towner, Alain Heyne, Marie-Claude Lacaille, Angela Véronneau, Jordy Philippe Bernier, Isabelle P. Mercure and Dave Bouchard From left to right : Kay-Sandra Boyer, Yanick Vlasak, Nicolas Thibault-Bernier, Dzenan Zulji, Marika Couture-Houle et Frédérick Breton
On March 11, five members from Lavery’s Sherbrooke office participated in the Leucan Ski Challenge held at Bromont. Justin Gravel, Jordy-Philippe Bernier, Geneviève Chamberland, Nicolas Thibault-Bernier and Marie-Claude Lacaille raised $1,900 to be donated to Leucan in support of children with cancer and their families. Click here for more information on Leucan.