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On October 3, the Court of Appeal of Quebec overturned an arbitral decision in which videotaped surveillance of an employee, suspected of activities incompatible with her alleged disability, would not be admitted into evidence. The majority of the appeal court judges concluded that the employer was justified in following the recommendation of its designated physician, who, for various reasons, strongly questioned the employee’s credibility. What led the Court of Appeal to overturn the arbitration award? Background The employee had been working as an orderly in a seniors’ residence for more than ten years when she took time off work due to an injured left shoulder. About two months after the onset of her disability, the employer summoned her for a medical expert opinion by its designated physician. On the day of the appointment, the physician happened to be in his vehicle when the employee arrived at his office. He decided to observe her in his rearview mirror. He noted that the employee was moving her left arm normally and that she had placed the strap of her purse on her left shoulder without hesitation or discomfort. The physician then formally examined the employee and, based on his objective examination, concluded that she was simulating all of her symptoms. He recommended that the employer carry out surveillance. The physician reminded the employer that the employee had already made false statements about her health during a period of disability a year earlier. The employer therefore had the employee followed for a day during which she drove and shop in public commercial establishments (places where an individual’s expectations of privacy are low). After viewing the videotape, the designated physician said he believed that the employee was simulating her disability. She was dismissed for failing to comply with her obligations of loyalty and honesty, as well as for her lies, exaggerations, and fraud related to her participation in activities incompatible with her alleged health status. This situation was then assessed successively by the Arbitration Tribunal, the Superior Court in a judicial review of that decision, and the Court of Appeal. Court of Appeal decision The Court of Appeal concluded that the employer was justified in relying on the findings and recommendations of its designated physician, which constituted reasonable grounds to conduct the surveillance. The Court of Appeal added that it was entirely legitimate for the employer to take into consideration the employee’s previous false statements: it believed that ignoring them would be inappropriately idealistic. The surveillance satisfied the proportionality test in the search for the truth, since the means were reasonable: one day of surveillance in public places and without traps. The Court of Appeal returned the case to the Arbitration Tribunal to review the validity of the dismissal on the basis of the video evidence. What do you need to know as an HR Manager? Ultimately, an employer may be justified in requesting surveillance when it relies in good faith on the observations and recommendations of its physician, and when the surveillance is carried out sensibly. When there are reasonable grounds to suspect activities incompatible with the employee’s limitations, surveillance can be an effective tool for unmasking fraud. We will keep you informed of any developments in this case, including a possible application for leave to appeal to the Supreme Court of Canada. Our Labour and Employment Law team is available to provide you with timely advice and solutions.
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.