Written on behalf of Peter McSherry
It has become very easy to tape record discussions with a click of the smartphone. Many people think it is a good way to prove workplace abuse or a hostile work environment.
Is This Legal?
This discussion should start, but not conclude with the Criminal Code. It is certainly criminal conduct to tape record a telephone discussion in which the recording party is a stranger. 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 Other Considerations
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.
The law on this subject is evolving.
Right of Privacy Recognized
Although not directly to this issue, the Ontario Court of Appeal 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 from seclusion”.
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.
The question, surprisingly enough, has not been addressed head-on in many cases. In one case in Manitoba, 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 that 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.
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 exceptions, in the case of threatened physical assault and serious expected harm. It may be that recordings in these situations 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.
Individuals should seek advice before taking 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
If you have questions about these issues, get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.