One of your employees quits his job and returns his smartphone which contains incriminating information. What can you do with this information? Could you, for instance, use the emails found in your former employee's smartphone as evidence in a legal proceeding? This question was recently ruled upon by the Quebec Superior Court in Les Images Turbo inc. v. Marquis (PDF - available in French only). 

In this case, Les Images Turbo inc. ("Turbo"), a business specializing in truck and bus lettering, sued its former employee ("Ms. Marquis") as well as her future employer ("Lettrapub") and its director ("Mr. Chassé") for unfair competition. One of the questions raised at trial was whether Ms. Marquis' emails, which the employer discovered on her smartphone after she left, were admissible as evidence.

  1. The Facts

Ms. Marquis began working for Turbo in 2005 as a sales representative and eventually became head of major accounts. Dissatisfied with the way clients were attributed and with some of the directions taken by the company, she decided to change jobs. She then met Mr. Chassé, director of Lettrapub, one of Turbo's competitors. A series of communications ensued between the two, including by email. Finally, Ms. Marquis left Turbo on May 9, 2012 to work temporarily for a third party during the term of the non-compete clause contained in her employment contract.

On the day she left, Ms. Marquis returned her smartphone to Turbo. Ms. Marquis had used it to access her private email account, which she used for her work at Turbo.

Around May 18, 2012, Turbo reviewed the contents of the smartphone and accidentally discovered the emails exchanged between Ms. Marquis and Mr. Chassé. Turbo then decided to keep the smartphone active. It continued to receive various emails until June 1, 2012.

  1. The Ruling

In this case, the court indicated that the emails stored on the employee's smartphone would be inadmissible if they were obtained in breach of Ms. Marquis' fundamental rights and freedoms and if their use would bring the judicial system into disrepute.

By applying this rule, the court allowed the production of virtually all the emails received before the smartphone was returned to Turbo. According to the court, under the circumstances it was the exclusion of these emails, not their admission, that would have brought the judicial system into disrepute.

However, the court disallowed the production of emails received after the smartphone was returned to Turbo on the grounds that they had been obtained in breach of Ms. Marquis' fundamental rights and with the intent to improve Turbo's evidence. Although the court clearly frowned upon the fact that Turbo accessed Ms. Marquis' personal incoming emails, it dismissed her claim for damages in that respect.

Even though the court allowed the production of most of the emails, it dismissed Turbo's motion against Ms. Marquis, Lettrapub and Mr. Chassé, given the absence of unfair competition.

  1. Lesson to Employers

This decision illustrates that it is the exclusion, and not the admission, of private emails obtained by an employer from its own equipment, that will often be objectionable. One reason for this is that a party can always argue in favour of the introduction of evidence by demonstrating its relevance.

Before using emails found on an employee's smartphone as evidence, employers should consider the following questions:

  • Who owned the phone?
  • What use did the employee make of it?
  • What steps did the employer have to take in order to obtain the information?
  • What are the private (rather than public) interests of the action?
  • What is the employer's objective?

It is important to note that in this case the admissibility of the emails as evidence would have been easier had the employee used her professional email address rather than her personal one.

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.