One of your employees quits his job and returns his smartphone
which contains incriminating information. What can you do with this
information? Could you, for instance, use the emails found in your
former employee's smartphone as evidence in a legal proceeding?
This question was recently ruled upon by the Quebec Superior Court
in Les Images Turbo inc. v. Marquis (PDF -
available in French only).
In this case, Les Images Turbo inc.
("Turbo"), a business specializing in
truck and bus lettering, sued its former employee
("Ms. Marquis") as well as her future
employer ("Lettrapub") and its director
("Mr. Chassé") for unfair
competition. One of the questions raised at trial was whether Ms.
Marquis' emails, which the employer discovered on her
smartphone after she left, were admissible as evidence.
Ms. Marquis began working for Turbo in 2005 as a sales
representative and eventually became head of major accounts.
Dissatisfied with the way clients were attributed and with some of
the directions taken by the company, she decided to change jobs.
She then met Mr. Chassé, director of Lettrapub, one of
Turbo's competitors. A series of communications ensued between
the two, including by email. Finally, Ms. Marquis left Turbo on May
9, 2012 to work temporarily for a third party during the term
of the non-compete clause contained in her employment contract.
On the day she left, Ms. Marquis returned her smartphone to
Turbo. Ms. Marquis had used it to access her private email
account, which she used for her work at Turbo.
Around May 18, 2012, Turbo reviewed the contents of the
smartphone and accidentally discovered the emails exchanged between
Ms. Marquis and Mr. Chassé. Turbo then decided to
keep the smartphone active. It continued to receive various emails
until June 1, 2012.
In this case, the court indicated that the emails stored on the
employee's smartphone would be inadmissible if they were
obtained in breach of Ms. Marquis' fundamental rights and
freedoms and if their use would bring the judicial system into
By applying this rule, the court allowed the production of
virtually all the emails received before the smartphone was
returned to Turbo. According to the court, under the circumstances
it was the exclusion of these emails, not their admission, that
would have brought the judicial system into disrepute.
However, the court disallowed the production of emails received
after the smartphone was returned to Turbo on the grounds
that they had been obtained in breach of Ms. Marquis'
fundamental rights and with the intent to improve Turbo's
evidence. Although the court clearly frowned upon the fact that
Turbo accessed Ms. Marquis' personal incoming emails, it
dismissed her claim for damages in that respect.
Even though the court allowed the production of most of the
emails, it dismissed Turbo's motion against Ms. Marquis,
Lettrapub and Mr. Chassé, given the absence of unfair
Lesson to Employers
This decision illustrates that it is the exclusion, and not the
admission, of private emails obtained by an employer from its own
equipment, that will often be objectionable. One reason for this is
that a party can always argue in favour of the introduction of
evidence by demonstrating its relevance.
Before using emails found on an employee's smartphone as
evidence, employers should consider the following questions:
Who owned the phone?
What use did the employee make of it?
What steps did the employer have to take in order to obtain the
What are the private (rather than public) interests of the
What is the employer's objective?
It is important to note that in this case the admissibility of
the emails as evidence would have been easier had the employee used
her professional email address rather than her personal one.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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