Employees often ask whether it is legal for them to record a conversation they have at work. The issue especially comes up in situations where the employee is subject to harassment at work or is being performance managed.
In short, employees working in Ontario can record a workplace conversation in the following circumstances:
- The employee is a participant in the conversation and consents to the conversation being recorded;
- In the context of the conversation the employee is acting as an employee (i.e. not a member of management); and
- The employee was an intended recipient of the communication.
Wilful Interception Exception: Consent
Pursuant to the Criminal Code of Canada, it is illegal in Canada to wilfully “intercept” (i.e. listen to, record, acquire or acquire the substance, meaning or purport of the communication) a private communication; however, where one of the parties to a conversation consents to being recorded, then that party can record the conversation. In multi-party workplace conversations, it only takes one party to consent to being recorded to fit within the exception.
Assume, for example, an employee is in a meeting with their boss and would like to record the conversation. As long as the employee consents to being recorded, the conversation can be recorded legally and the employee does not need to inform their boss that they are being recorded.
Managers Subject to Privacy Legislation
A manager acting as a representative of a company does not have an automatic right to record the conversations of their subordinates. Privacy legislation impacts how employers collect, use and disclose the personal information of their employees. Managers should, therefore, consult relevant privacy legislation, and the requirements included therein (e.g. requirements to inform the recorded party that they are being recorded), before recording any conversations at work.
Should You Record? Food for Thought
There are of course circumstances where recording in a workplace may be illegal or simply not a good idea.
For example, recording or sharing recordings of people in intimate moments or a state of undress (i.e. in your work change room or while providing personal care to a patient) could be illegal. If recording interferes with certain workplace policies (e.g. policies dealing with confidential or secret information) this could also pose problems at work by eroding the trust that is necessary for the employment relationship and leading to constructive dismissal claims.
Secret recordings could capture personal information and infringe on privacy rights, which may lead to a claim for breach of privacy. In 2012, the Ontario Court of Appeal established a new tort of “intrusion upon seclusion” and awarded damages for the breach of privacy in a case where an employee of a major bank accessed the personal financial records of her ex-husband’s new girlfriend on at least 174 occasions. This tort could also arise in a situation where an employee’s expectation of privacy is violated by being surreptitiously recorded.
Given the above, while certain employees may be able to record conversations with their superiors at work, they should carefully consider the potential repercussions of doing so and weigh those repercussions against the advantages gained by making the recordings. If you are an employer or employee and have questions regarding any of the above, contact an experienced Toronto employment lawyer or human rights lawyer at Sultan Lawyers. Please contact Majella Lahert by telephone at 416-214-5111 or by email at firstname.lastname@example.org.
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