Williams HR Law LLP

HRTO Decision Addresses the Admissibility and Confidentiality Concerns of Surreptitious Recordings

February 11, 2022

In Ardila-Zuluaga v IO Industries Inc [Ardila-Zuluaga], the Human Rights Tribunal of Ontario (“HRTO”) held that while it may not be discriminatory for an employer to dismiss an employee for making surreptitious recordings, the same recordings may be admitted as evidence to prove discrimination in the workplace.

The HRTO emphasized that the admissibility of surreptitious recordings depends on the facts of the case.

Background

The employee applicant, Mr. Ardila-Zuluaga, worked as a technician with the employer respondent, IO Industries Inc. In his HRTO application, the employee alleged that he was subjected to discriminatory harassment because he was an immigrant, that the employer failed to appropriately accommodate his disability, and that he was further subjected to discrimination and reprisal for pursuing health and safety and discrimination claims against the employer.

Before the hearing, the parties disclosed their relevant documents. It was at this time that the employee disclosed the surreptitious recordings he had made for over two years at the workplace. Prior to this disclosure, the employer had no knowledge that the employee had been recording workplace conversations.

The employer subsequently met with the employee to request that the employee cease making workplace recordings, stating confidentiality concerns. The employee maintained that he had the right to make workplace recordings, as he believed his human rights were being violated, and refused to stop recording. In response, the employer dismissed the employee.

HRTO Decision

In assessing the admissibility of the employee’s surreptitious recordings, the HRTO weighed the probative value of the evidence with the prejudicial effect to the employer. Ultimately, the HRTO permitted the surreptitious recordings into evidence to determine whether discrimination and discriminatory harassment had occurred in the workplace.

The HRTO clarified that collecting evidence by way of surreptitious recordings was not a means of enforcing one’s rights under the Ontario Human Rights Code [Code]. Therefore, the employer’s efforts in limiting the employee’s recordings at the workplace and its subsequent dismissal of the employee could not be considered reprisal or discrimination.

Admissibility of Surreptitious Recordings

The HRTO held that the surreptitious recordings were admissible because there was nothing to suggest that the evidence would be prejudicial to the employer. The recordings were taken during one-on-one conversations between the employee and another individual, and during meetings where the employee was participating in the conversation with several individuals present.

In confirming the admissibility of the recordings, the HRTO determined that the recordings had “considerable probative value in determining what was said, or the context in which the issues arose.”

The employer had argued that evidence in the surreptitious recordings must be approached with caution, given that conversations will often be “staged” by the individual who is recording, and the context of statements might not be available. The HRTO confirmed that while these were indeed issues, they were relevant to the reliability and weight the recordings should be given, and not to the admissibility of the recordings.

Although the HRTO admitted the recordings into evidence in this case, the HRTO warned that its decision to do so was not a general endorsement for individuals to make surreptitious recordings. Simply put, making recordings was not a right under the Code.

Confidentiality Concerns Relating to Recordings Sufficient for Dismissal

During the hearing, the employer testified that due to the nature of its business, confidential discussions regarding its clients often occurred in the workplace. Surreptitious recordings of these conversations, particularly as these recordings were being stored off-site, placed the employer at a significant risk of breaching the confidentiality clauses contained in the contracts between the employer and its clients.

The HRTO accepted that the employee’s workplace recordings posed significant confidentiality risks, and that the employer had a legitimate business concern in protecting its clients’ information. The HRTO held that the employee’s refusal to cease recording at the workplace was a sufficient non-discriminatory reason for the employer to dismiss the employee. The employee’s discrimination allegations surrounding his dismissal were therefore dismissed by the HRTO.

Damages

The HRTO ultimately awarded $4,000 to the employee to compensate for injury to his dignity, feelings, and self-respect. The employer was also ordered to complete an online learning course issued by the Ontario Human Rights Commission.

As the allegations surrounding the dismissal were dismissed, the employee received no lost wages.

Takeaways for Employers

Employers’ confidentiality and progressive discipline clauses and policies should outline the importance of keeping client information confidential, as well as the consequences of breaching that confidentiality. Should employers expressly prohibit making recordings in the workplace, they should explain how workplace recordings compromise confidential information.

The recent British Columbia decision of Shalagin v Mercer Celgar Limited Partnership [Shalagin] complements the Ardila-Zuluaga decision regarding the consequences of making surreptitious recordings in the workplace. Although Shalagin is a civil claim and is only persuasive, not binding, in Ontario, the British Columbia Supreme Court in Shalagin affirmed that an employee can be dismissed for cause due to recording conversations with colleagues.

Any discipline resulting from an employee making surreptitious recordings should be connected to the protection of the employer’s legitimate business interests. Not all employers have the same legitimate business interests. Therefore, the appropriateness of a for-cause dismissal will be assessed based on the facts of each case.

While employers may dismiss or otherwise discipline an employee for making surreptitious recordings, such recordings may still be admissible to prove an employee’s claim against the employer. Nonetheless, employees might be deterred from making surreptitious recordings where an employer has expressly outlined the consequences in doing so.

Surreptitious recordings also have implications on workplace investigations. If a participant in an investigation wishes to admit surreptitious recordings, the investigator cannot advise the participant about the possible legal ramifications of making surreptitious recordings. Furthermore, if the investigator accepts the surreptitious recording as evidence, this information should be disclosed to the other party for reasons of procedural fairness, so that the relevant parties have an opportunity to address the evidence.

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