One of the fundamental changes made to the law of evidence in Quebec when the new Civil Code came into force in 1994 was the introduction of article 2858 of the Civil Code of Quebec (C.C.Q.). This article reads as follows:
“The court shall, even of its own motion, reject any evidence obtained under such circumstances that fundamental rights and freedoms are violated and whose use would tend to bring the administration of justice into disrepute.
The latter criterion is not taken into account in the case of violation of the right of professional secrecy.”
The main objective behind article 2858 C.C.Q. was to bring the law of evidence in civil cases in line with the remedy existing in subsection 24(2) of the Canadian Charter of Human Rights and Freedoms.
Prior to 1994, the basic rule governing the admissibility of evidence in civil cases was that of relevance. Therefore, the manner in which evidence had been obtained was not a factor to be taken into consideration to exclude evidence which was otherwise relevant to the proceedings. In other words, contrary to courts of criminal jurisdiction, the courts of civil jurisdiction in Quebec did not have the power to exclude evidence even if this evidence had been obtained in violation of fundamental rights or illegally. The introduction of article 2858 C.C.Q. consequently represented a fundamental modification to the rules of admissibility of evidence.
Over the years that followed, the courts of civil jurisdiction in Quebec started to interpret and apply this provision. The most famous case dealing with the application of this provision is the judgment of the Quebec Court of Appeal of Ville de Mascouche vs. Huguette Houle and Commission municipale du Québec, 1999 CanLII 13256 (QCCA), where evidence obtained by a third party electronically eavesdropping cellular conversations of one of the parties to the trial was excluded by the Court of Appeal. However, some debate remained as to whether a grievance arbitrator had the power to apply article 2858 C.C.Q. to evidence adduced in the context of an arbitration proceeding.
In a recent decision, Syndicat des infirmières et infirmiers de la Baie d’Ungava (FIQ) and Centre de santé Tulattavik de l’Ungava (Chantale Coulombe), 2015 QCTA 100, an arbitrator not only held he had the required jurisdiction to apply this specific provision of the Civil Code but also that the principle of the “Voir-dire” evidentiary hearing applied to make a preliminary determination as to whether the evidence was admissible.
In that particular case, a unionized employee had been suspended twice before being terminated in January 2013. The employer (Centre de santé Tulattavik de l’Ungava – CSTU) was a health center managed by the government. The letter of termination contained the following allegation:
“On September 19 and 20, 2012, products belonging to the CSTU such as cleaning products, garbage bags, sanitary tissues, toilet paper, etc. were found in your residence.”
At the outset of the arbitration proceedings, the Union objected to the admissibility of any evidence dealing with this allegation. It was the Union’s contention that the employer had entered the grievor’s residence as a result of a forced entry. It should be noted that under the Quebec Charter of Human Rights and Freedoms, the following rights are guaranteed to all Quebec citizens:
“5. Every person has a right to respect for his private life (…).
7. A person’s home is inviolable.
8. No one may enter upon the property of another or take anything there from without his express or implied consent.”
“24.1 No one may be subjected to unreasonable search or seizure.”
Accordingly, the Union argued that a “voir-dire” should be held by the arbitrator in order to determine whether the evidence obtained as a result of the forced entry into the grievor’s residence was admissible since, prima facie, fundamental rights had been breached. The employer objected on the following grounds: a) the concept of “voir-dire” does not exist in civil law; b) article 2858 C.C.Q. does not apply to arbitration proceedings; c) the “voir-dire” was an attempt to force the employer to disclose evidence and d) the holding of a “voir-dire” went against the principle that the hearing should not be split in two distinct trials.
In a carefully reasoned decision, arbitrator Pierre Laplante dismissed all of these arguments reasoning that article 2858 C.C.Q. was a fundamental rule of law which could not be ignored by the arbitrator. Also, the “voir-dire” was the appropriate procedural vehicle to determine in advance whether the evidence obtained in the grievor’s residence was admissible. Therefore, the arbitrator ordered the holding of a “voir-dire” for the specific purpose of resolving this issue. The arbitrator pointed out that the Union would have the burden of proof of demonstrating that the evidence had been obtained in violation of the Charter and/or that its inclusion as proof in the hearing could bring the administration of justice into disrepute.
It remains to be seen what decision the arbitrator will render on the merits of the Union’s objection as the arbitrator’s decision only dealt with the applicability of article 2858 C.C.Q and the applicability of the “voir-dire” procedure to arbitration proceedings. However, such a decision, regardless of the outcome on the merits, clearly sends a strong message to employers who conduct investigations or hire third party investigators to be extremely cautious when conducting employee investigations for fear that relevant evidence may be excluded because it was obtained in contravention of article 2858 C.C.Q.