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Can I Record That? Admissibility of Recordings in Employment Cases
In Rooney, the employee commenced an action against his employer (“GSL”), alleging that he was constructively dismissed when GSL made fundamental changes to his employment when they created a new department in his workplace.
The following are the pertinent facts found by the Alberta Court of King’s Bench:
- The Plaintiff, Edward Rooney (“Mr. Rooney”) worked as an electrical, air conditioning and drivability technician for GSL Chevrolet Cadillac (“GSL”)
- Rooney’s role at GSL changed throughout his tenure, for the 10 years immediately preceding his constructive dismissal in March 2010, he worked almost exclusively as a drivability technician, at the request of GSL
- During the course of his employment, Mr. Rooney was suspended without pay on three different occasions
- In 2009, GSL introduced a “drivability department” which resulted in more drivability technicians. This resulted in less work for Mr. Rooney, and because he was paid based on work completed, a reduction in his compensation
- In was not until March 2010, when the drivability department was a couple of months old, that GSL had a meeting with Mr. Rooney to explain to him the changes that were taking pace
- Rooney recorded this meeting without his employer’s knowledge and/ or consent
- Mr. Rooney sought to rely on this audio recording at trial
Analysis / Conclusion
The Honorable Justice Colin C.J. Feasby found that GSL fundamentally changed Mr. Rooney’s employment when it created the drivability department, and this amounted to constructive dismissal.
Regarding Mr. Rooney’s audio-recording evidence, GSL argued that it should not be relied on and should be inadmissible for the following reasons:
- The audio was of poor quality and inaudible at some points, therefore, the recordings were not sufficiently liable evidence to be relied on; and
- The audio recordings should be inadmissible as it would encourage the public to secretly record conversations between their employer and employee, ultimately, undermining the employer- employee relationship.
The court disagreed.
The court said the question for admissibility of evidence in a civil context is the common law rule for admissibility.
The trier of fact (the Judge/ Justice) will need to determine whether or not the evidence before them would aid in the determining the matter in issue (here, whether the audio recording is relevant in determining whether Mr. Rooney was constructively dismissed by GSL).
If the evidence aids the trier of fact, it will be allowed. In the alternative, if the evidence would distort or undermine the fact-finding process (determination of the issue), the evidence will not be allowed.
In short, the common law rule for admissibly of evidence is whether or not the evidence is relevant to the matter at hand.
The court concluded that the audio recording was admissible evidence for the following reasons:
- Both parties confirmed the accuracy of the audio recording; and
- Evidence could not be deemed inadmissible on public policy grounds, as this would be contrary to the common law rule of evidence. Creating an exception to the common law rule for public policy reasons should not be done by the Court of King’s Bench, but could be done by a higher court or the legislature.
The employer also argued that it has just cause for dismissal based on the fact that Mr. Rooney recorded it secretly. The court found that in some circumstances it might be misconduct for an employee to secretly record an employer, but not in this case.
The fact that this evidence was considered admissible in this case is not surprising to me. Given the power imbalance between an employer and employee and the importance of one’s employment in one’s life, having meetings with your superiors can be daunting, especially when you foresee a termination on the horizon. When employees take these recordings, its often because they are nervous and/or do not trust that the employer will accurately recount what was said in the meeting.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Amanda Jacinto is an employment lawyer at Bow River Law. She is a knowledgeable and skilled lawyer, handling employment law, human rights and labour law matters. Bow River Law is based in Calgary, but we are Alberta’s Workforce Lawyers.