Canada: Can An Employee's Hotmail Account Be Searched For Evidence?

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

Facts

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.

Ruling

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.

Conclusion

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.

Footnotes

1 2012 QCCS 3241 (C.S.), Collier J.S.C.

2 Article 2858 of the Civil Code of Québec.

3 R v Cole, 2011 SCC 53. For a discussion of R v Cole, see "The Supreme Court weighs in on an employer's right to monitor employee personal communications," Norton Rose Legal Update, October 2012.  

Norton Rose Group

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit nortonrose.com.

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.