Canada: The Exclusion Of Evidence In Arbitration Proceedings In Quebec

One of the fundamental changes made to the law of evidence in Quebec when the new Civil Code came into force in 1994 was the introduction of article 2858 of the Civil Code of Quebec (C.C.Q.). This article reads as follows:

"The court shall, even of its own motion, reject any evidence obtained under such circumstances that fundamental rights and freedoms are violated and whose use would tend to bring the administration of justice into disrepute.

The latter criterion is not taken into account in the case of violation of the right of professional secrecy."

The main objective behind article 2858 C.C.Q. was to bring the law of evidence in civil cases in line with the remedy existing in subsection 24(2) of the Canadian Charter of Human Rights and Freedoms.

Prior to 1994, the basic rule governing the admissibility of evidence in civil cases was that of relevance. Therefore, the manner in which evidence had been obtained was not a factor to be taken into consideration to exclude evidence which was otherwise relevant to the proceedings. In other words, contrary to courts of criminal jurisdiction, the courts of civil jurisdiction in Quebec did not have the power to exclude evidence even if this evidence had been obtained in violation of fundamental rights or illegally. The introduction of article 2858 C.C.Q. consequently represented a fundamental modification to the rules of admissibility of evidence.

Over the years that followed, the courts of civil jurisdiction in Quebec started to interpret and apply this provision. The most famous case dealing with the application of this provision is the judgment of the Quebec Court of Appeal of Ville de Mascouche vs. Huguette Houle and Commission municipale du Québec, 1999 CanLII 13256 (QCCA), where evidence obtained by a third party electronically eavesdropping cellular conversations of one of the parties to the trial was excluded by the Court of Appeal. However, some debate remained as to whether a grievance arbitrator had the power to apply article 2858 C.C.Q. to evidence adduced in the context of an arbitration proceeding.

In a recent decision, Syndicat des infirmières et infirmiers de la Baie d'Ungava (FIQ) and Centre de santé Tulattavik de l'Ungava (Chantale Coulombe), 2015 QCTA 100, an arbitrator not only held he had the required jurisdiction to apply this specific provision of the Civil Code but also that the principle of the "Voir-dire" evidentiary hearing applied to make a preliminary determination as to whether the evidence was admissible.

In that particular case, a unionized employee had been suspended twice before being terminated in January 2013. The employer (Centre de santé Tulattavik de l'Ungava - CSTU) was a health center managed by the government. The letter of termination contained the following allegation:

"On September 19 and 20, 2012, products belonging to the CSTU such as cleaning products, garbage bags, sanitary tissues, toilet paper, etc. were found in your residence."

At the outset of the arbitration proceedings, the Union objected to the admissibility of any evidence dealing with this allegation. It was the Union's contention that the employer had entered the grievor's residence as a result of a forced entry. It should be noted that under the Quebec Charter of Human Rights and Freedoms, the following rights are guaranteed to all Quebec citizens:

"5. Every person has a right to respect for his private life (...).

7. A person's home is inviolable.

8. No one may enter upon the property of another or take anything there from without his express or implied consent."

"24.1 No one may be subjected to unreasonable search or seizure."

Accordingly, the Union argued that a "voir-dire" should be held by the arbitrator in order to determine whether the evidence obtained as a result of the forced entry into the grievor's residence was admissible since, prima facie, fundamental rights had been breached. The employer objected on the following grounds: a) the concept of "voir-dire" does not exist in civil law; b) article 2858 C.C.Q. does not apply to arbitration proceedings; c) the "voir-dire" was an attempt to force the employer to disclose evidence and d) the holding of a "voir-dire" went against the principle that the hearing should not be split in two distinct trials.

In a carefully reasoned decision, arbitrator Pierre Laplante dismissed all of these arguments reasoning that article 2858 C.C.Q. was a fundamental rule of law which could not be ignored by the arbitrator. Also, the "voir-dire" was the appropriate procedural vehicle to determine in advance whether the evidence obtained in the grievor's residence was admissible. Therefore, the arbitrator ordered the holding of a "voir-dire" for the specific purpose of resolving this issue. The arbitrator pointed out that the Union would have the burden of proof of demonstrating that the evidence had been obtained in violation of the Charter and/or that its inclusion as proof in the hearing could bring the administration of justice into disrepute.

It remains to be seen what decision the arbitrator will render on the merits of the Union's objection as the arbitrator's decision only dealt with the applicability of article 2858 C.C.Q and the applicability of the "voir-dire" procedure to arbitration proceedings. However, such a decision, regardless of the outcome on the merits, clearly sends a strong message to employers who conduct investigations or hire third party investigators to be extremely cautious when conducting employee investigations for fear that relevant evidence may be excluded because it was obtained in contravention of article 2858 C.C.Q.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.