Quebec is a province known for its strong privacy laws. So when the question arose as to whether an employer is able to use the facebook page of an employee as a means to handle the employment relationship, many would have expected the answer out of Quebec to be an unequivocal “no”. This, however, was not the answer.
In ND et Commission Scolaire A, the Commission des lésions professionnelles, on appeal from the Quebec Worker’s Compensation Board, recently ruled that the Commission is allowed to use information it gets from the facebook account of an employee when dealing with the employment relationship.
In ND a worker was diagnosed with an adjustment disorder roughly six months after she had injured her shoulder at work. The worker was a teacher and was represented by the Federation of School Support Staff (FPSS), which is affiliated with the Confederation of Trade Unions Quebec (CSQ). She wanted the Commission to determine that the injured shoulder and the adjustment disorder were related problems. The worker also sought to have postings from her facebook account excluded as evidence.She had been active on Facebook during her absence from work, “often mentioning her mood and her dissatisfaction with the way her compensation file was being handled by the commission in her posts.”
Information from a grievor’s facebook account is inadmissible if obtained via fraud, subterfuge or other indirect methods. The worker’s facebook account was set to “private”, meaning that only her “friends” had access to her account. Neither the worker nor the Commission could say for certain how extracts from her facebook account came to be in the Commission’s file.
Given the startling fact that no one seemed to know how the contents of her account ended up in the Commission’s file, a representative of the worker argued that the information from her facebook account, in the absence of evidence to the contrary, must be presumed to have been obtained through fraud or other impugned methods. For this reason, it was argued, the evidence must be excluded under Article 2858 of the Civil Code of Quebec (CCQ), which holds that evidence can be rejected where it is obtained under conditions that violate human rights and fundamental freedoms and where its use is likely to bring the administration of justice into disrepute.
The Commission, however, rejected this argument, ruling that in the absence of evidence that the extracts from the worker’s facebook page were obtained by fraud or otherwise, it could not conclude that the extracts were inadmissible. The importance of this evidence to the deliberation of the Commission was deemed more important than any question as to the source of the evidence.
The Commission relied on the basic evidentiary principle that evidence is generally admissible if it is relevant to the case and will aid in helping the adjudicator to get to the truth. Since part of the worker’s injuries were said to be psychological in nature, and since statements made on the worker’s facebook page were likely to demonstrate the worker’s state of mind, the Commission deemed the facebook entries relevant to the worker’s claim of psychological injury, and thus ruled them admissible.
What the Commission Overlooked
Unfortunately, the Commission in this case took an oversimplified view of the complexities raised by social media in the litigation context. The Commission, for instance, paid no mind to the issue of whether or not the facebook postings could be authenticated. If the Commission was willing to accept there was no fraud in obtaining the evidence, would it also be willing to accept that there was fraud that went into the creation of evidence? This does not appear to have been raised as an issue in the case, but it is a valid concern. The Commission’s considerations in coming to its ultimate decision seem entirely one-sided. The Commission gives great weight to evidence without determining its source, while simultaneously giving almost no weight to the privacy interests of the grievor.
The Commission failed to place an appropriate premium on privacy rights, easily subordinating them to the Commission’s interest in having all relevant evidence before it when making a determination. This does not seem in keeping with precedent set by the Supreme Court in R. v. O’Connor, which has recognized that just because a person is involved in litigation, it does not mean that he or she must sacrifice their rights to privacy:
I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.
Granting the appellant employer such licence to delve into the private aspects of the grievor’s life, the Commission relied on another decision which found that a facebook account, even when the security settings are set to “private”, is not truly private for the purposes of litigation. The Commission focused, in part, on the fact that the grievor in this case admitted to having 350 “friends” and the fact that it was conceivable that the “friends” of these 350 people could in turn see postings on the grievor’s account. Given that not only the grievor’s friends, but the friends of these friends and the friends of those friends and so on, might be able to view the grievor’s facebook profile, the Commission concluded that the grievor had no real expectation of privacy.
Followed through to its logical conclusion, this ruling would suggest that anyone with a facebook account has essentially zero expectation of privacy, unless the grievor’s facebook account was accessed via fraud. It completely rejects a person’s right to privacy without sufficiently considering whether the facebook account needed to be probed “for the proper disposition of the litigation”.
In making this decision, the Commission brought Quebec closely in line with other provinces, where privacy interests have long been trampled in the interests of all relevant evidence being before a court or tribunal. The trouble is not with this decision per se, but with a judiciary that seems to be sacrificing the privacy rights of individuals on the altar of litigation.
The issue is a thorny one, as each party involved in litigation is entitled to have all relevant evidence considered. Courts and tribunals are struggling with the relative newness of the phenomena of social media. In this case, the Commission did not draw the line in an appropriate place. It would have done better to authenticate the evidence and delve more deeply into whether there was sufficient probative value before stepping over the grievor’s privacy rights. Future decisions would do well to place more focus on such considerations. It would be refreshing to see more thought given to whether the information being introduced is of sufficient probative value to be deemed truly relevant to a case and thus worthy of the violation of the grievor’s rights.
 2013 QCCLP 2138 (ND).
 ND at para 61.
 ND at para 66.
 ND at para 79.
 R. v. O’Connor,  4 SCR 411, at para 38. (O’Connor).
 Landry and Provigo Quebec Inc (Max and Cie) 2011 QCCLP 1802 (CanLII). Cited in ND at para 77.