Since 2001, the Act to Establish a Legal Framework for Information Technology1 regulates the use of technology-based documents as evidence. The use of such documents is increasingly common and this is especially true in the areas of health and safety at work.

Case law has established that evidence lawfully obtained on social networks such as Facebook, Twitter and LinkedIn does not infringe on privacy. Indeed, what is on Facebook is not part of the private domain2, “considering the multitude of people who can have access to it”(Our translation). However, if the information on social networks was obtained by the use of a subterfuge and lies3, if the information was not available for a large number of ” friends” or colleagues4 and if private parameters had been chosen, the evidence through social networks could be rejected because the employee had a reasonable expectation of having his privacy respected. However, the photos or comments posted on social networks are generally public and thus admissible5.

Evidence through social networks can and has been used for various purposes in regards to employment injuries, among others:

–       To contradict the statements of the worker;

–       To harm his credibility (E.g.: biking6, doing aerobics7, or kayaking8 when he is denying practicing these activities, denying consuming alcohol when he published proof to the contrary, etc.) 

[49] Because of the worker’s lack of credibility, his testimony is rejected. There is no evidence to conclude that he has suffered an employment injury9.

 
–       To find the cause of a health problem (for example, through Facebook conversations, an employer learned that the cause of a worker’s depression was his relationships with other people and not work10;

–       To support claims of workplace harassment11.

In sum, although social networks provide many interesting social and commercial opportunities, one would be wise to remember and always consider that what is published often falls within the public domain.

 


 

1An Act to Establish a Legal Framework for Information Technology, CQLR c. C-1.1
2Landry et Provigo Québec inc. (Maxi & Cie), 2011 QCCLP 1802 (CanLII).
3Campeau et Services alimentaires Delta Dailyfood Canada inc., 2012 QCCLP 7666 (CanLII).
4Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC LRB).
5However, the case law and legal commentary are divided regarding the necessity of proving the authenticity and integrity by distinct evidence. , see Claude FABIEN. “La preuve par document technologique” (2004) 38 Revue juridique Thémis, 533-611.
6Brisindi et STM (Réseau des autobus), 2010 QCCLP 4158 (CanLII).
7Costco-Gatineau et Gilbert, 2012 QCCLP 5491 (CanLII).
8Hollingsworth v. Ottawa Police Services Board, [2007] O.J. No. 5134.
9Brisindi et STM (Réseau des autobus), 2010 QCCLP 4158 (CanLII), par. 49.
10Lévesque et Restaurant les Jardins Roussillon, 2011 QCCLP 3890 (CanLII).
11Landry et Provigo Québec inc. (Maxi & Cie), 2011 QCCLP 1802 (CanLII).