Can an employer submit as evidence contents of an employee’s personal email box that are obtained as part of an investigation? In certain circumstances, it can, according to the recent Quebec Superior Court ruling by Justice David R. Collier in Pneus Touchette Distribution inc. c Pneus Chartrand inc.1
A tire distribution company sued a former employee and three other co-defendants for unfair competition. It also claimed that the former employee had passed on confidential information to the competition via his personal email address.
An investigation by an IT services company revealed that the defendant had been using his office computer to redirect certain messages and documents electronically to a Hotmail address. The defendant had allegedly then used that Hotmail address to send that privileged information to a competing firm. The employer wanted to submit the expert report in order to support its position and show how the scheme worked, but the former employee had objected.
The dispute focused on the fact that the firm hired by the employer to conduct the investigation had succeeded in cracking the defendant’s password and gaining access to his personal information. The defendant viewed this as an intrusion into his private life and argued that, since the evidence contained in the report had been obtained in violation of his fundamental rights and would bring the administration of justice into disrepute, it was inadmissible as evidence.
The Superior Court acknowledged from the outset that the defendant’s right to privacy had been infringed. However, Justice Collier pointed out that, to conclude that the report should be dismissed, one also had to find that the use of the evidence so obtained would bring the administration of justice into disrepute.2
In his analysis, Justice Collier also underscored the necessity of determining whether a person who is reasonable, objective and well informed of all the circumstances would be of the opinion that admitting the email messages obtained into evidence would call into question the principles of fairness and transparency inherent in the judicial process. In this context, the judge noted that the employer had a legitimate interest in wanting to gain access to the contents of the employee’s Hotmail box and that such evidence could have been obtained by legal means. The court also noted that the email messages in question existed before being obtained by the employer and the investigation therefore had not had the effect of creating new evidence. Finally, the court noted that, had the employer been unable to produce the email messages, it would have been unable to contradict its former employee, which would have compromised its action.
In handing down its ruling dismissing the former employee’s application, the Superior Court did not endorse or approve the investigation method that was used, but, rather, reiterated that, in certain exceptional circumstances, evidence obtained in violation of the right to privacy will be admissible. It is worth noting that the Supreme Court, in its recent decision R v. Cole,3 issued after Justice Collier’s ruling, held that an employee has a reasonable expectation of privacy regarding intimate personal information, even when such information is found on his or her workplace computer, but that the expectation depends on all the circumstances. The Supreme Court also noted that, even if an employer has the right to search a computer used by an employee, that does not give the police the right to seize or search that computer.