Yes, it is true that it is not a criminal offence for one of the participating parties in a conversation to tape record the discussion,1 even without the knowledge and/or consent of the other(s). However, it is not the Criminal Code which rules the day of what is acceptable in the workplace.
Two recent cases have considered this issue and each have shown differing conclusions.
In December of 2022, Feasby, J. of the Alberta King’s Bench in Rooney v GSL Chevrolet Cadillac considered the conduct of the plaintiff employee who had surreptitiously tape recorded a discussion with his immediate superior. He did so to support his position that he had been subjected to unfair disciplinary suspensions.
Alberta K.B. Sees No Just Cause
The court did note that such conduct should generally be considered disruptive to the employment relationship:
Recording conversations in the workplace will often cause irreparable damage to the relationship of trust between employee and employer and be just cause for termination.
This being said, the court determined on these particular facts that this conduct was not cause for dismissal. These factors were seen as influential:
- The employer did not have an express policy prohibiting such conduct that was brought to the attention of the employee;
- The plaintiff had been previously suspended without pay, which had resulted in a tense relationship between him and his immediate supervisor; and
- This suspension was imposed “without any basis in the terms of employment”.
These factors were found to have justified the plaintiff’s conduct which otherwise would have been cause for termination.
Prior B.C. Case Allows the JC Defence
This case is to be distinguished from the earlier decision of the British Columbia Supreme Court in Shalagin v. Mercer Celgar decided in January of 2022. Again the employee had secretly tape recorded workplace conversations with co-workers. In this case, the court found that such conduct fundamentally damaged the mutual trust required for the employment relationship and upheld the employer’s right to dismiss for just cause.
In the latter case, the employer was not aware of the tape recordings until the litigation had begun. The employee had been initially terminated without cause.
The plaintiff had also initiated a human rights claim. It was through this process that the employer became aware that the plaintiff had surreptitiously taped numerous workplace discussions. These included one-on-one training sessions, more than 100 safety meetings and some thirty personal meetings with management dealing with compensation and recruitment. Also included were conversations with co-workers that revealed sensitive personal information unrelated to employment issues.
Upon learning of this conduct, the employer successfully moved to amend its defence to plead after-acquired cause for termination.
The court agreed with this plea and dismissed the case, based on the following influential factors:
1. The employee had signed a code of business conduct which mandated a standard of honesty;
2. The recordings were voluminous and were made over a lengthy time period; and
3. The conversations were recorded without consent.
Also from a policy perspective, the court observed that allowing such conduct would and promote its future occurrence and would negatively impact the workplace, particularly in light of modern privacy concerns.
Of further note was that the plaintiff, an accountant, was a member of a regulated profession, which mandated integrity:
The plaintiff’s professional obligations provide additional support for a finding that he did not conduct himself as an employed CPA should have done. At least some of the recordings are properly viewed as being solely “for the advantage of the [plaintiff]”, to use the words of the plaintiff’s Code of Conduct. While the plaintiff’s position did not rise to the level of a fiduciary, I accept that professionals in positions of high accountability such as the plaintiff can be expected to respect the standards established by their profession: Hyland v. Royal Alexandra Hospital, 2000 ABQB 458 at paras. 12 and 28.
The general rule which emerges is that such conduct is viewed as prima facie destructive of the employment relationship and further that the employee must lead evidence to demonstrate an exception to this proposition. In addition, the employer would be well advised to update its policy manual to prohibit such conduct.
This case went to the B.C. Court of Appeal which upheld the trial decision. The appellate court noted that the trial judge applied a contextual analysis and did not apply a strictly mandated position that such conduct must be cause for dismissal:
It is clear from the judge’s reasons in the case at bar that he did not apply an “absolute” or “strict” rule of the kind that was overturned in McKinley. Instead, he addressed the issue of cause “through an analysis of the particular circumstances surrounding the employee’s behaviour.” (McKinley at para. 39.) He reviewed the “difficulties” experienced by Mr. Shalagin in his relationship with Mr. Marshall, noting the appellant’s acknowledgement that he knew it would make people uncomfortable if he were recording them and that at least some of the recordings were “unethical, even if not illegal.” (Reasons at para. 53.) He noted the change in Mr. Shalagin’s purpose in making the recordings — from hoping to improve his English skills in the early years, to hoping to ‘catch out’ one of his superiors exhibiting discriminatory or bullying behaviour and then to make a complaint of some kind.
Ontario
A recent Ontario decision involved a clandestine tape recording made by the employee of the termination discussion. There was apparently no objection to the admissibility or any argument made by the employer as to the impact of this conduct. In fact, the contents of the tape were used to support the successful claim for moral damages due to the statements made by the employer in this narrative.