This case deals with the admissibility of Facebook content as
evidence. It arises in the context of a hearing before the
Occupational Health and Safety Division of the new Québec
Administrative Labour Tribunal. This tribunal results from the
merger, as of January 1, 2016, of the Labour Relations Board and of
the Occupational Injuries Board.
The employer wanted to introduce evidence obtained
surreptitiously from the worker's Facebook page, to advance its
The issue came up at a first hearing where the worker was not
represented. The administrative judge raised the issue of the
admissibility of that evidence on his own initiative, not waiting
for the worker to object, and relying on article 2858(1) of the
Civil Code of Québec:
2858. 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 Tribunal demanded that, in a separate hearing, evidence be
adduced proving that the Facebook evidence had not been obtained
The worker testified that her Facebook profile was private; that
two former colleagues had been her "friends", but no
longer were. The employer had on an earlier occasion asked the
worker to provide Facebook information on a co-worker, which she
had refused to do. The employer's executive director testified
that she had been given the Facebook posts by her predecessor, who
had refused to disclose her source. The worker did confirm at the
hearing, however, that the copies of her Facebook page in the
possession of the employer were authentic.
In coming to his decision, the administrative judge first
referred to an earlier decision of the Tribunal where it had been
decided that the information contained on Facebook is public and
that even the use of private settings will not necessarily render
Facebook evidence inadmissible, if not obtained illegally. However,
it may be inadmissible if private settings are used and the number
of "friends" is limited. That said, illegal access is
The administrative judge then went on to refer to a leading
privacy case from the Québec Court of Appeal for the
proposition that surveillance is inherently a breach of privacy
that may be justified if it is necessary, that is if it is carried
out for rational reasons and by reasonable means.
Rational reasons may not be mere doubts, intuition or vague
suspicions or rumours.
To be reasonable, the means of surveillance must be the least
intrusive and as limited as possible.
Once a tribunal has ruled on the reasonableness of having
gathered surveillance evidence, it must decide whether its use
would tend to bring the administration of justice into disrepute.
This requires a balancing of the breach of the worker's privacy
rights with the tribunal's mission to seek the truth. For this
purpose, a tribunal must consider the gravity of the privacy
violation and what societal values are at stake in the particular
The majority view is that illegally obtained evidence may still
be admitted if not admitting it would bring the administration of
justice into disrepute by not allowing the truth to prevail.
The administrative judge in our case is of a different view, an
approach adopted by a minority of the members of the Occupational
Health and Safety Division of the Québec Administrative
They believe that surveillance evidence obtained without a
rational reason necessarily brings the administration of justice
into disrepute and must be excluded in all cases. For them, to rule
otherwise would be to allow the end to justify the means.
On this basis, and given that the employer had not argued that
it had a rational reason to proceed to obtain the worker's
Facebook profile, its admission into evidence was denied.
One has to be mindful that Courts allow different views to
co-exist within an administrative tribunal. Members of a tribunal
have no duty to rally with the majority. Courts will not intervene
in judicial review to decide which is the better view. In such
cases, unfortunately, one can truly say that "it depends on
All the more reason to be careful when assessing a possible
surveillance situation. There may be little point gathering such
evidence if the judge ultimately may not look at it.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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