Admissibility of Social Media Evidence

Back in August I posted a column on Slaw about a Quebec administrative tribunal decision that referred to Facebook and Wikipedia evidence.

The tribunal, the Commission sur les lésions professionnelles (CLP), has returned to the social media admissibility question Campeau et Services alimentaires Delta Dailyfood Canada inc., 2012 QCCLP 7666 (CanLII).

A worker was injured and had to take a lot of time off work. At one point her injuries caused her a case of depression that also kept her off work. To test whether this was serious, the employer created a fictitious account on Facebook, giving the alleged member characteristics chosen deliberately to appeal to the employee. The employee friended the fictitious member, which gave that member – and the employer – access to the employee’s friends-only posts and information.

The workplace injuries tribunal rejected the employee’s case, and the employee appealed to the CLP. The CLP held that the evidence from Facebook was not admissible. They reviewed article 2858 of the Quebec Civil Code, which says (as above) that a tribunal must reject evidence obtained in conditions that infringe fundamental rights and liberties and whose use would cast the administration of justice in disrepute. This article is an express exception to the admissibility of any fact relevant to the dispute.

The decision analyses these factors in some detail (paragraphs 15 through 76). The infringement of rights affected the employee’s privacy rights, guaranteed against private-sector infringement by the Quebec Charter though not the federal Charter.

The test for bringing the administration of justice into disrepute was a matter of proportionality. Judged by standards from cases in the Quebec Court of Appeal and the Supreme Court of Canada, the CLP held that using the FB evidence would have that result. Fishing expeditions seem likely to meet that standard consistently.

Would the case be decided differently without the express rule in the Civil Code about infringement of rights and the reputation of the administration of justice? Could a tribunal in a common-law jurisdiction have reached the same result?

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