Recent news reports have been replete with the surprising contents of taped conversations, often involving employment relationships of considerable public notoriety. This raises the issue as to the legality of recording employment discussions. The motivations for such actions may well be to create evidence to show a hostile work environment or to prove the converse, one’s innocence. The prevalence of cell phones makes the ability to tape such discussions by a single and often surreptitious click.

Is This Legal?

This discussion should start, but not conclude with the Criminal Code. It is certainly criminal conduct to tape record a discussion in which the recording party is not involved. There is nothing criminal, however, about recording a conversation in which the taping person is a party, whether that be a phone call or personal meeting.

Workplace and Different Considerations

Policy Document

Should the employer have a manual as an employment term, this will directly answer the question. The issue may become what discipline may be imposed, where the policy document does not define this clearly. This will then involve a review of the context to determine what grade of discipline may be imposed.[1]

Implied Term

The law on this subject is evolving.

Right of Privacy Recognized

Although not directly to this issue, the Ontario Court of Appeal[2] has recognized the common law right of privacy as a fundamental expectation. In this case, an action was allowed against a person who had used his position of confidence to review his spouse’s banking information over a four year period. This was referenced as “the right of intrusion upon seclusion”.

Interestingly, the Court of Appeal overruled the lower court decision on this issue. The initial judge’s decision[3]commented with favour upon an earlier decision[4], also approved by the Court of Appeal, which stated:

Be that as it may, it’s my opinion that certainly a person must have a right to make such a claim as a result of a taping of a private conversation without his knowledge, and also as against the publication of the conversation against his will or without his consent.

A further decision of the Supreme Court of Canada, also not directly on point, spoke to the expectations of privacy of an individual to the contents of his information stored on workplace computers. This is reflective, however, of the recognition of the development of implied privacy rights in the workplace. In this case, the Court stated this implied right of privacy would prevail, even when the employer’s policy document stated directly to the converse.

Direct Precedent

The question, surprisingly enough, has not been addressed head on in many cases. In once case in Manitoba[5], the plaintiff had taped conversations with his superior, unknown to his boss. The conversations were admitted into evidence. The Court found that apart from this issue, there was proven just cause to terminate and hence the judge’s findings on the taped conversations were not the decisive factor in the determination.

The employer had also maintained a policy document which denied the right to tape such discussions. All this being said, the Court nonetheless expressed its view that such action was contrary to the implied duty of confidence and privacy obligations.

Further Evolution

There is also an underlying sentiment of the need for a positive workplace environment. One would expect that our courts would be reluctant to embrace the notion of pervasive workplace taped recordings. There may be certain expectations, in the case of threatened physical assault and serious expected harm. It may be that recordings on these facts may be allowed, even where there is a workplace policy in place, where the context shows a serious risk to personal safety. This is purely speculative at this stage.

Employer’s Action

Management should, at the very least, insure that there is a policy document denying the right to make taped recordings of workplace conversations, failing mutual consent and state the expected discipline or range of discipline for such an offence.

Employee’s View

Individuals should seek advice before taking the affirmative action to tape record co-workers. This action could well lead to adverse employment discipline, including termination for cause.

Let Legal Advice Be Your Guiding Light

Whether you be employer or employee, legal advice on this issue is a important first step. As in many situations, the employer holds the advantage of being able to create a foundational policy document. The employee must tread cautiously. Both views must be guided by proper and advice. For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

 

 

 

 

 

[1]As in McKinley v BC Tel

[2] Jones v Tsige

[3] Jones v Tsige motion decision

[4] Saccone v Orr This involved the recording of a private conversation without the knowledge or consent of the plaintiff. The recording was then played at a municipal council meeting and a transcript of the conversation was then published in a local newspaper.

[5] Hart v Parrish


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