Secretly recording conversations in the workplace: Is it legal?

Secretly recording conversations in Canada:

You, and many other workers experiencing mistreatment, may at some point have wondered whether you can secretly record conversations in the workplace. Given the availability of smartphones and other electronic devices, it has never been easier to do. But is it legal? The answer is yes, but it depends.

In Canada, it is only unlawful for you to record a conversation if you are not a party to the conversation. Under section 184 of the Criminal Code of Canada, every person who knowingly intercepts a private communication with a device is guilty of a criminal offence. An exception to this rule is if one of the parties involved in the conversation consents to the recording. This is known as the one party consent exception. The result of this rule is that, if you yourself consent to recording the conversation that you are a party to, it is not illegal to record that private conversation without the consent or knowledge of the other participants pursuant to s. 184 of the Criminal Code.

In a nutshell, the law is the following: It is illegal for you to record a conversation that you are not a party to (meaning, you cannot “bug your boss’ office”). It is legal to surreptitiously record a conversation, if you are a party to the conversation.

Recording conversations in the workplace:

Recording conversations in the workplace may be worth it in some situations. That said, just because you can surreptitiously record conversations in the workplace, does not mean you should. There are serious risks to consider.

Secretly recording conversations at work could be appropriate in situations involving harassment and other human rights violations. Recordings may prove certain facts that would otherwise be difficult to prove in proceedings through only documentary evidence or witnesses. It could be an effective way to support a worker’s (domestic or migrant) allegations of bullying, threats, or exploitation in the workplace. Secret recordings can have utility in this sense. In addition to civil proceedings, recordings might be a way for migrant workers, who are trapped in abusive employment relationships, to prove the abuse to the Government in order to change employers without jeopardizing their immigration status (but this will depend on IRCC’s evidence rules for vulnerable workers applying for open work permits).

Secretly recording a conversation with your boss in the workplace could be harmful to your case. For example, the secret recordings might amount to serious misconduct and contribute to just cause for dismissal. In Hart v. Parrish & Heimbecker, 2017 MBQB 68, the court considered the wrongful dismissal claim of an employee who used his company phone to record confidential meetings at work. In this case, the recordings backfired on the employee, and the claim was dismissed. Although the court found that just cause was justified because of prior misconduct, the court considered the employee’s secret recordings to be inappropriate, and a breach of confidentiality and privacy obligations to the employer. Thus, secret recordings can be risky.

Can employers record employees?

Employers may be able to record employees in certain situations, but the information is subject to privacy legislation. Federal privacy legislation known as PIPEDA (Personal Information Protection and Electronic Documents Act), and relevant provincial legislation, regulates the collection, use, disclosure of personal information. This applies to employees’ personal information. Employers should review the relevant privacy legislation, and any requirements to inform the other parties in the conversations, before surreptitiously recording any conversations at work.

Are secret recordings of conversations admissible evidence in proceedings?

Secret recordings of workplace conversations may or may not be admissible evidence in proceedings. There is no specific authority for this in the employment law context. We do know that it may be especially difficult to have recordings admitted in the unionized context. Labour arbitrators have held that secret recordings are inadmissible because admitting them could erode trust between unions and employers, and the bargaining relationship.

To conclude, whether it is a good or bad idea to secretly record a conversation in the workplace depends on the situation. If you have a workplace legal issue, you should contact a lawyer in your jurisdiction.

Blog posts are not legal advice.

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