Campeau v. Services alimentaires Delta Dailyfood Canada Inc., 2012 QCCLP 7666 (C.L.P.), November 28, 2012 decision
For the purpose of gaining access to the profile of an employee on Facebook, the employer’s representative created a fictitious profile and invited her to become a Facebook « friend ». She then created a profile designed to attract the attention of the employee, using personal information which she had access to. The employee agreed.
During a hearing before the Commission des lésions professionnelles (CLP), the employer representative attempted to confront the employee with an excerpt taken from her Facebook page which contradicted the employee’s testimony. Subject to the objection of the solicitor for the complainant that admitting this evidence was a violation of the employee’s privacy, the evidence was admitted subject to the objection.
CLP grounds in support of excluding the evidence
The CLP stated that pursuant to Section 2858 of the Civil Code of Québec, evidence is inadmissible where it is obtained under circumstances such that fundamental rights and freedoms are breached and that its use would tend to bring the administration of justice into disrepute.
In the present matter, the CLP found that the employee had a certain expectation of privacy when using Facebook, having added security options to protect herself. The CLP found that the right to privacy of the employee had been infringed, and that a subterfuge had been deployed in order to gain access to her profile.
In order to determine whether the evidence gathered which violated her right to privacy brought the administration of justice into disrepute, the CLP applied a test of proportionality, which weighed two values: respect of the right to privacy on the one hand, and on the other the truth-seeking mission.
The CLP concluded that prior to undertaking this initiative, the employer representative had no evidence that relevant data could be found on the employee’s Facebook page. Furthermore, the CLP indicated that the evidence gathered was neither relevant to the dispute, nor to any truth-seeking mission. It therefore dismissed evidence of the excerpts taken from the employee’s Facebook page. Note that a request for intern review at the CLP was filed.
