“Can I record my employer without their knowledge?” This question often comes up when workplace tensions rise, or you feel the need to protect yourself in tricky situations. In Canada, the answer might surprise you. While it’s not illegal under the Criminal Code, there are still important factors to consider before hitting the record button.
Can I legally record a conversation with my employer?
In Canada, the law allows for “one-party consent” when it comes to recording conversations. This means that as long as you’re part of the conversation, you’re legally allowed to record it without informing the other participants. Recording conversations you’re not directly involved in, however, is against the law.
Although s.184 of the Criminal Code of Canada states you can record your employer without their knowledge, it doesn’t necessarily mean it’s the right move. Courts generally view secret recordings with caution, especially in workplace environments, and it could potentially harm your position.
The risks of recording your employer
While it may not be illegal, recording your employer’s conversation can carry significant risks. Secretly recording conversations at work can lead to serious consequences, including dismissal for just cause. Even if the recording itself isn’t a criminal offence, an employer might argue that it’s a violation of trust, and courts may side with them depending on the circumstances.
Trust is a key element in the employer-employee relationship, and secret recordings can easily erode that trust. In some cases, this could be seen as misconduct serious enough to justify your termination.
Can you use secret recordings as evidence in court?
If you find yourself in a legal dispute with your employer, you might wonder if your recording can be used as evidence. The answer depends on where you are in Canada and the specific details of your case. In British Columbia, for example, courts tend to be more hesitant about allowing secret recordings into evidence. However, in other provinces, courts will often assess the value of the recording based on a “probative vs. prejudicial” test.
This means the court will weigh how useful the recording is for proving your case (probative value) against any potential unfairness or harm it could cause (prejudicial effect). In situations where there’s a significant power imbalance or where the recording proves bad faith actions on the part of the employer, the court may be more inclined to allow it as evidence.
When secret recording might be justified
There are scenarios where secretly recording a conversation could be justified, such as when your employer is acting in bad faith or engaging in unlawful behaviour. If the recording provides clear proof of misconduct, the courts may permit it as evidence—especially if there’s a power imbalance between you and your employer.
For example, in the case of Ardila-Zuluaga v. IO Industries Inc., 2021 HRTO 1042 [Ardila-Zuluaga], the Human Rights Tribunal of Ontario (“HRTO”) ruled that while an employer’s decision to dismiss an employee for making surreptitious recordings may NOT be deemed discriminatory, those same recordings can be used as evidence to support the employee’s claims of workplace discrimination. The HRTO accepted the secret recordings as evidence, noting their “considerable probative value in revealing what was said and the context in which the issues arose.”
However, the HRTO cautioned that this decision should not be interpreted as a blanket approval for individuals to engage in covert recordings, “nor that making such recordings is a right under the Code.”
Each case is evaluated individually when it comes to the admissibility of secret recordings, and the decision will ultimately depend on the specifics of the situation. It’s crucial to understand that while it might help you in some instances, a secret recording could also harm your case or your standing at work.
Further reading: What is Workplace harassment?
Can you get fired for recording conversations at work?
While it’s legal to record conversations you are part of, the courts have indicated that secretly recording your employer can be grounds for termination—especially for cause. The key issue is trust. Recording conversations without your employer’s knowledge can damage the trust needed for a productive working relationship. If your employer discovers the recording, they could argue that your actions amount to serious misconduct, and in some cases, this can justify a termination for cause.
A termination for cause means that your employer can dismiss you without notice or termination pay. This is a significant consequence, as it implies that your behaviour was serious enough to irreparably damage the employer-employee relationship. Courts will consider the context, but secret recordings are generally seen as deceitful, especially when trust and honesty are critical components of the job.
For instance, in Shalagin v. Mercer Celgar Limited Partnership, 2023 BCCA 373 (“Shalagin”), the British Columbia Court of Appeal affirmed that Mr. Shalagin’s covert recordings of meetings with colleagues constituted just cause for dismissal, as they undermined the essential trust in the employer-employee relationship. Shalagin asserted that he recorded the conversations out of fear of discrimination; however, the court found no legitimate basis for this claim.
The BCCA refrained from stating whether, under different circumstances, secretly recording workplace conversations could be justified if an employee reasonably believes they are facing discrimination and if the recordings are relevant to safeguarding the employee’s legal interests. However, this case indicates that it may be simpler to establish just cause for dismissal when an employee engages in dishonest conduct.
To learn more about terminations, including just cause, check out What is Wrongful Termination Canada: The Ultimate Guide for Terminated Employees.
Be cautious before recording
Before deciding to record your employer’s conversation, consider the risks carefully. A secret recording may seem like a good way to protect yourself, but it can backfire, leading to strained relationships or even termination. The fallout could outweigh the benefits even if the law is on your side.
If you feel compelled to record a conversation at work, it’s always a good idea to seek legal advice first. A lawyer can help you assess the potential consequences and guide you on the best course of action for your situation.
Final thoughts on recording employer conversations
Recording your employer without their knowledge is legal in Canada if you’re part of the conversation, but that doesn’t mean it’s always the right decision. While courts may allow such recordings in certain situations, they’re generally met with caution, and the consequences could be severe—both in terms of your employment and the admissibility of the recording as evidence.
Proceed carefully, and always seek legal advice before making a move that could impact your job or legal standing. Secret recordings, while legally permissible, can have lasting repercussions you might not expect.
Need legal advice? Book a free consultation with our employment lawyers
If you’re unsure about your rights or are facing a challenging workplace situation, it’s crucial to seek legal advice. Book a free consultation with our experienced employment law attorneys to get personalized guidance on how to protect yourself without jeopardizing your job. We’re here to help you make informed decisions that safeguard your rights.
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