“We need to be aware of these tools and how to use them, and how our clients are being affected by them,” he said. “And if you don’t have that knowledge, I think you’re missing an important piece of being able to advise your clients.”
And it’s not just judges who need to get involved, according to Bilinski’s fellow panellist, Jean-François De Rico, of the Quebec City office of Langlois Kronström Desjardins. He quoted from the Canadian Judicial Council’s ethical code for judges requiring them to “maintain and enhance the knowledge, skills, and personal qualities” necessary for effective judging.
“Historically that was with regards to the law, or maybe social events and economic situations,” he said. “I think the widespread use of information technology as a whole creates the need for the judiciary to acquire an understanding of those basic concepts and of social media as a whole. . . This is not just a specific field of knowledge anymore. This is something that is not only widespread, but affects and is implicated in a number of human activities.”
Given the ubiquity of social media sites such as Facebook, which is fast approaching one billion users worldwide, the panel’s third member, Don Richards, was surprised to find that a 2010 dismissal case he was involved in was the first in Canada involving Facebook.
“We had to rely on blogging cases,” said the Vancouver-based Farris Vaughan Wills and Murphy LLP partner. Since then, he says there have been many Facebook termination cases, “and there are going to be many more.”
Richards acted for West Coast Mazda as its firing of two union organizers was upheld by the B.C. Labour Relations Board in the 2010 decision. The two workers had posted potentially threatening language and homophobic slurs against their bosses. The supervisors were able to follow the abuse in real time since they were friends with the pair on Facebook.
Richards had to deal with establishing a nexus to the work environment in the Facebook postings, but also in preserving the evidence, since the postings were removed by the time the hearing occurred. However, the supervisors had made copies of the postings before they were taken down.
De Rico says things could be clearer on what constitutes suitable preservation of Facebook evidence.
“Printouts are a way of doing it, but courts have not indicated whether or not printing to pdf [of] Facebook pages would also be a good way to preserve it. My recommendation is if you want to preserve the evidence, do it in as many ways as you can. There’s software out there,” he said.
B.C. Provincial Court Judge Gary Cohen, who moderated the session, sits on the court’s technology committee and also writes a column, Cohen’s Computer Corner, for a judges’ magazine. He has embraced Facebook as a means of service in cases before him.
“I’ve ordered service either by Facebook or pretty much any other electronic form where I’m pretty sure they’ll actually see a copy of the document,” he said. “As far as I’m concerned, it’s much better than just posting it in a newspaper where you’re pretty much assured they will never see it.”