Just because a recording is legal does not necessarily mean it can be used as evidence
Exclusive to Canadian HR Reporter from Rudner Law.
It seems obvious, right? Lawyers always say to “document everything”, and we’re all walking around with recording devices in our pockets, so why not record everything you can? If you need to refer back to something later, you’ll have an audio recording of it to refresh your memory - or prove it happened.
Not so fast. As we have previously written, an employee who secretly records conversations at work may have to defend their actions, and it could cost them their job; secretly recording colleagues and supervisors has been used as a basis for a finding of after-acquired cause for dismissal.
But if it’s not necessarily in an employee's best interests to record everything, what about an employer - can they make recordings of what happens in the workplace?
The legality of recording workers
Canada is a one party consent country: if one party to a conversation is aware and consents to it being recorded, it will not breach the prohibition in the Criminal Code on intercepting a private communication with a device. So I could record my conversation with you without advising you, but I could not leave a recorder in a room while you talk to someone else.
This also means that an employer may not tap its employees’ phones or record their conversations without the consent of at least one of the parties.
Of course, not being a criminal offence does not mean there are no consequences. Recording a communication in the workplace impacts the employee's privacy. While there is no common law right to privacy in Canada, and only a few provinces have privacy statutes, there is potential civil liability.
As we have previously written, the Court of Appeal for Ontario has recognized the tort of intrusion upon seclusion, which has three parts:
- Intentional conduct by the defendant
- The defendant must have invaded, without lawful justification, the plaintiff’s private affairs
- A reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish.
This tort does not appear to have been applied to recording a workplace interaction, but there is a trend toward protection of workers and privacy, so it is not out of the realm of possibility that courts will find a way to penalize an employer that is secretly recording workers.
Further, in Ontario, the recently enacted changes to the Employment Standards Act, 2000 require that an employer with more than 25 employees in Ontario disclose any and all electronic monitoring conducted on its employees. This would include an audio recording of an employee, even if the other party to the recording has consented to it being made. Failing to do so may result in the employer being fined.
Likewise, just because the recording is not illegal does not mean that it can be used as evidence. Courts will be reluctant to allow surreptitious recordings into evidence in many contexts, including where an employer is systematically recording its employees without advising them.
Best practices to make recordings work
Employers should not eavesdrop on the workplace in order to monitor the personal lives of its staff or gather information it has no right to be aware of. That said, electronic monitoring can be used where there is a legitimate business reason.
An employer that intends to record its staff should implement a policy which advises its employees that they have no expectation of privacy at work. Like all policies, this should be distributed to all employees. In Ontario, the required electronic monitoring policy will address this issue.
From a procedural standpoint, the employer can require that the party recording the conversation notify the employee that they are recording at the start of the conversation - like those recordings on customer support calls. This notification should be on the recording - and take place before any discussion starts. There should also be efforts to ensure that only relevant information is captured and that the monitoring is not overly broad.
These steps can help to reduce the potential for a claim of invasion of privacy and increase the chances that the recording is admissible in court.
A recording can be a powerful piece of evidence. Instead of relying on notes or the parties’ memories of an interaction, it will be available for everyone to hear. However, a recording may not be admissible in court, and could actually lead to a claim against the party making the recording,if proper steps are not followed.
Transparency is the key. When everyone is made aware that a discussion is being recorded, it reduces their opportunity to contest the validity of 5the recording at a later date, or claim that their right to privacy was breached.
Geoffrey Low is an associate at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].