Can My Employee Record Our Private Meeting?

I saw a dentist this week and they asked me: “Can my employee record us at our private work meeting without me knowing?”

Yes, Your Employee Can Record You

The simple answer is “yes”, but only if the following apply:

• The person recording is a participant in the conversation and that person consents to the conversation being recorded;
• The person doing the recording is an employee, not management; and
• The person doing the recording was intended to receive the communication.

So, if your employee is in a private meeting with you, and you will be discussing their discipline or work performance, they can legally use their phone to record the conversation — and they do not have to tell you that they are recording the meeting.

(Now for the boring legalese: the reason why this is permissible in the law is because of the wording in the Criminal Code, in section 183-4, where it says the following:

• “intercept” means “to listen to; record; acquire or acquire the substance, meaning or purport of the communication”
• “Everyone who, by means of any electro-magnetic, acoustic, mechanical or other devices, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years”… except if a person has consented to intercept the communication
• The consent of one of the parties to communication is sufficient consent; and
• Police require a warrant to intercept private communications.)

But Can You Record Your Employee?

Now, the next question you’re probably asking: Can an EMPLOYER do the same thing? Record an employee in a private meeting?

From the above definition, it would seem that it would equally apply to employers.  But it may not exactly be equal.

In Ontario, there is no specific law that bans an employer from recording a private work meeting with an employer (but I would go so far as to say that any information obtained should be done reasonably in the circumstances, as is any action taken by an employer).  But in Alberta, there is.  The Alberta Personal Information Protection Act specifically states that when employers collect and use employee information (including a recorded conversation), the employer must first inform the employee of what information is being collected and how it is going to be used.

In addition, there is an important Ontario Court of Appeal case called Jones v Tsige, where the Court of Appeal confirmed the existence of a new tort (which is the legal word for the reason one person can sue another person) called “Intrusion upon Seclusion” or an invasion of privacy. In order to prove someone is liable for this new invasion of privacy tort, they would have to prove the following:

1. there was an unauthorized intrusion,
2. the intrusion was highly offensive to the reasonable person,
3. the matter intruded upon was private, and
4. the intrusion caused anguish and suffering.

As you can see, the method and reasons for collecting information from or about a person is fraught with risk.  Was the “intrusion” actually authorized? Could a private meeting about work performance be considered “highly offensive”? Was the performance review “private” if the employer and office manager were in the room with the employee?

This same reasoning could be applied to the employee secretly recording the employer – but don’t forget, the party with the greater bargaining power (like an employer) usually retains the duty to be fair to the seemingly less-powerful party.

If you have concerns about how any employment-related information is collected in your office, contact our Employment Law team today.