Inevitably, some employees will find themselves in the difficult position of having to attend a disciplinary or investigatory meeting with a supervisor or HR. Many workers in this difficult position are wondering, “can I secretly record the meeting in Canada? Is it legal to record a conversation without everyone’s consent in Canada?”
Likewise, some employees will one day find themselves in the painful situation of workplace bullying and harassment. Accordingly, many in this unenviable position ask me, “in Canada, can I record my colleague bullying me?”
At the same time, some employers want to know as well, can they record an employee misbehaving? Can they surreptitiously record an investigation meeting concerning an employee’s alleged misbehaviour?
Is it legal to record your conversations at work (Canada)?
Under section 184 of the Criminal Code, it is only illegal (i.e. a criminal offence) to record conversations if you yourself are not a party to the conversation. This means it is not a “criminal offence” to record your own conversations at work even if the other people being recorded do not know they are being recorded.
Section 184 of the Criminal Code essentially says it is only illegal to “intercept a private communication with a device” (see Separating Spouses, Technology, and the Criminal Law, Michal Fairburn, Link). Still, although it is illegal to “intercept a private communication with a device”, section 184 of the Criminal Code has an exception if one of the participants consents to that interception. This is called the “one-party consent” exception. Accordingly, we are left with the bizarre rule that if you yourself consent to record your own conversation, it is not unlawful to record a private conversation as per section 184 of the Criminal Code. In short, the law is this: It is legal to record conversations only if you are a party to the conversation. Conversely, it is illegal to record a conversation you are not a party to.
For example, it is not illegal to record your meeting with your supervisor, but it is illegal to plant a recording device in the meeting between your supervisor and someone else if you are not present at that particular conversation.
However, when we speak about “legality” we are only speaking about criminal offences. Thus, although you can “legally” secretly record a conversation without being charged with a criminal offence, you can still suffer other consequences such as being fired or sued.
Can I record a conversation with my boss (Canada)?
Yes, you can record a conversation with your boss in Canada. However, you have to question whether it is worth it. While it is not illegal to record a conversation with your boss on your phone or a tape recorder, you can be fired for it.
Will I be fired if I record a conversation at work?
You can be fired for any reason in Canada or no reason at all. In this regard, yes, of course, you will likely be fired for secretly recording a conversation with your boss.
There are two ways to get fired in Canada: (1) with cause and (2) without cause. If you are fired ‘without cause’, your employer doesn’t need a reason to terminate you. If you are fired ‘with cause’, then your employer does need a reason to terminate you.
The only rights you have, if you are terminated without cause, is that you must be provided adequate notice or pay in lieu of such adequate notice (i.e. severance). However, if you are terminated for cause, then you get no notice or pay in lieu of notice.
To that effect, if you are caught recording your boss at work, then your employer can either fire you on the spot without cause (and pay you severance) or it can argue you are fired for cause and pay you no severance.
Thus, the question become, does secretly recording your meeting with your boss amount to “just cause”? The answer: It depends. If the secret recording sufficiently causes your employer to lose all trust in you, then perhaps you can be fired for just cause. After all, just cause is defined as “serious misconduct” (See Regina v. Arthurs, 1967 CanLII 30 (ON CA)) and secretly recording your boss is likely “misconduct”. Whether or not it is “serious” misconduct will depend on the circumstances. Nevertheless, we do know that courts have held that if the employee’s conduct reveals a character which is dishonest or untrustworthy, just cause is more likely (see Ennis v. Canadian Imperial Bank of Commerce (1986), 1986 CanLII 1208 (BC SC)).
In Hart v. Parrish & Heimbecker, Limited  MBQB 68, a Manitoba court considered whether an employee’s secret recordings with management, among other concerns, was “just cause”. Although the court found that just cause was justified for other reasons, the court did opine on the problem with the employee’ secret recordings:
 The plaintiff’s inappropriate use of his cell phone in secretly recording meetings with his superiors does amount to a breach of his confidentiality and privacy obligations to the defendant…. The misuse of his cell phone was also a breach of his personal code of conduct….
In addition, in certain industries, it may be easier to justify a “just cause” dismissal if an employee secretly records a conversation at work. For example, a relationship of trust has been found to be particularly critical in the banking industry where employees are held to a higher standard of trust than employees in other commercial or industrial undertakings (see, for example, National Bank of Canada v. Lepire, 2004 FC 1555; and Rowe v. Royal Bank of Canada (1991), 1991 CanLII 912 (BC SC)).
In addition, employees who work with greater autonomy are held to a higher standard of trust. The greater the autonomy the employee enjoys, the more fundamental trust becomes to the employment relationship (see Godden v. CAE Electronics Ltd., 2002 BCSC 132).
In summary, an employee can be fired for secretly recording a conversation with their boss at work. However, whether or not the employer can terminate the employee with just cause will depend on whether the secret recording so eroded the trust of the employee to such a degree that the employee can never be trusted again. Still, even if the employer lacks just cause, it can just fire the employee without cause by providing reasonable notice.
Can I record a conversation with my bully?
The same rules about recording a conversation with your boss (as described above) apply to recording a conversation with your bully. However, it may be that a just cause termination will not be justified if an employee is recording harassment directed toward them rather than, for example, recording a disciplinary investigation. Even still, it would probably be best for the employee to ask their boss permission before they record their bully.
Employees: Call Dutton Employment Law for issues at work. We offer free consultations.
Are secret recordings admissible in court in Canada?
The law is mixed on whether a secret recording is admissible in court and there is no case law in the employment law context. Thus, secretly recording your boss is a risk that might not even pay off.
In labour arbitrations, arbitrators will either reject a secret recording based on the labour law theory that admitting it would erode the future bargaining relationship between the union and employer or accept the secret recording based on the common law theory that anything relevant should be admitted. In line with the latter theory, in one case, a judge in a family law matter said:
[secret recordings are] generally not prohibited or illegal… [and] can constitute real evidence of conversations or events that they depict, as long as the other side is aware before the hearing date that these recordings exist and are being relied upon…[a]ccordingly, short of certain specific privacy expectations, there are few in any restrictions on the admissibility of [secret] recording of conversations or events.Mazur v. Corr, 2004 ABQB 752 (CanLII)
Can an employer record an employee?
Yes, an employer can record an employee at work legally so long as there is an employer representative in attendance in the conversation being recorded. However, the information that is collected in the recording will be subject to privacy legislation.
Where the employer is located, and depending on whether they’re provincially or federally regulated, a provincial privacy act or the federal Personal Information Protection and Electronic Documents Act (PIPEDA) addresses the collection, use and disclosure of personal employee information (see this Monster.com article).
In any event, any employer seeking to record employees should have a written policy in line with applicable privacy legislation and the employer should make all employees sign a contract that says they have no expectation of privacy at work.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.