Social media poses serious threat to litigation

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

Trials are meant to be conducted in a vacuum. Witnesses are not permitted to hear the evidence given before them to ensure their own evidence won’t be influenced in anyway. That’s virtually impossible to achieve given the wild popularity of the Johnny Depp trial. The internet is chock full of evidence and opinions about the case.

As the Johnny Depp trial rolls on, we are reminded of how conducting litigation in the internet era has fundamentally threatened the litigation process.

 

Last week, a key witness for the Depp team, Georgina Deuters, was dismissed while giving evidence at trial. During the course of her testimony, Judge Azcarate determined Deuters had watched parts of the trial online before giving her own evidence. She was immediately dismissed and the jury was instructed to disregard her testimony.

 

Trials are meant to be conducted in a vacuum. Witnesses are not permitted to hear the evidence given before them to ensure their own evidence won’t be influenced in anyway. That’s virtually impossible to achieve given the wild popularity of the Johnny Depp trial. The internet is chock full of evidence and opinions about the case.

 

Clearly, social media can flex real muscle in the litigation process. It can paint pictures. It can stir up bias. It can skew perceptions.

 

Judges must now jealously guard their courtrooms from such outside actors. A good example of that is the recent Court of Appeal decision in Render v. ThyssenKrupp Elevator (Canada) Limited. In that case, the plaintiff sued for wrongful dismissal after being terminated for cause for allegedly sexually harassing a female employee.

 

At trial his claim was dismissed and his termination for cause was upheld. However, the employer was only awarded $74,000 in costs due to its litigation conduct. On appeal, the entire cost award was thrown out and the employer, despite being almost wholly successful at trial was awarded nothing in costs.

 

On the eve of trial the employer had a media consultant send a press release to approximately 40 media outlets containing allegations that were not proven in court. Her statement said about the case, in part, “its got sex, drama, termination, and a legal question that could potentially affect every work environment in Canada.”

 

At trial Justice Chalmers found the release tainted “the evidence of a number of witnesses, and whose ‘inflammatory and sensationalist’ press release contained unproved allegations and was intended to possibly pressure the appellant and influence the trial judge.”

 

Court of Appeal Justice Feldman, on behalf of the court found tainting evidence in this manner “cannot be tolerated or condoned.”

 

Using the media to exert pressure in cases compromised the integrity of judicial system and this sort of pressure cannot afford to go unchecked. Most times, it’s better to leave the genie in the bottle.

 

On to this week’s questions:

 

Q. Because I am management at a store, I am supposed to be present for opening and closing. Now, the store has extended the hours of operation to 13 hours a day, and I am still expected to be present all day, but I am just to be paid the same salary as usual. Apart from being unfair, is this illegal?

 

A. Management positions can be exempt from earning overtime, so this may be the rationale for not paying you more. If you are working more hours this may be a breach of your employment agreement and you may consider resisting the change in writing unless you and your employer can agree to terms for the extra work. If you don’t speak up quickly you may legally be found to have accepted the change.

 

Q. I work from home and it’s been pretty flexible since the start of COVID. I get my work done and if I can’t get it all done during the day I catch up at night. That was never a problem. This week I got an email from my manager that I was not “online” during required hours and was given a warning. I was not aware that my employer was keeping track of when workers are logged in. Is this legal?

 

A. If you are working remotely and on a computer provided by your employer, there may be some form of surveillance to track productivity. Also, chat programs like slack and g chat have features that show when users are active and this could be a way your manager is monitoring your activity. If you have questions about how you’re being monitored ask your manager. The province is introducing laws for employers to inform employees about surveillance measures, so a conversation about expectations around monitoring should not come as a surprise.

 

Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

 

The content of this article is general information only and is not legal advice.

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