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,[1] 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.”[2]
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[3].
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.[4]
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[5].
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[6].
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[7].
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.
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