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Drop the mic: The admissibility of surreptitious recordings in investigations?

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Surprise, you have been recorded! It is the first thing that popped into my mind after reading my colleague and Vice-chair Bruce Best’s1 recent decision of Ardila-Zuluaga v. IO Industries Inc., 2021 HRTO 10422. In that case, the applicant intended to use recordings he secretly made from 2015 to 2017 while working for his former employer to prove a violation of his rights under the Ontario Human Rights Code (“the Code“). Specifically, the applicant alleged that he experienced reprisal, discrimination, and harassment based on his place of origin, ethnic origin, ancestry, race, citizenship, and disability during his employment with the respondents.

One of the core issues was the admissibility of these secret recordings. After deciding in favour of their admission for reasons I will delve into later, Vice-chair Best granted the application in part and found that the applicant was subject to discrimination and/or harassment on several occasions. He further awarded $4000 as compensation for injury to the appellant’s dignity, feelings, and self-respect.

The applicant, an immigrant from Colombia, was formerly employed as a technician at the organizational respondent from 2010 to 2017. The individual respondent was the founder and president of the organizational respondent. In 2015, the applicant started to surreptitiously record conversations he had in the workplace, especially ones involving the individual respondent. In these recordings, the individual respondent made what he believed to be humorous references to drugs and Colombia, and sarcastic comments about the applicant’s use of hearing protection.

The applicant filed the present application in 2016 while still employed by the respondents. In 2017, during the documentary disclosure process, the applicant disclosed the existence of the secret recordings and sought to rely on them as evidence. Representatives of the organization met with the applicant in their capacity as his employer and raised concerns regarding a potential breach of confidential customer information posed by these recordings. The applicant refused to cease recording surreptitiously, which ultimately led to the termination of his employment. His application was later amended to include additional allegations of discrimination and reprisals.

In the context of the human rights application, the respondents also objected to the recordings being relied on as evidence. They alleged that the applicant might have recorded conversations that he was not a party to, contrary to the “one-party” exemption under the Criminal Code. The applicant denied this and stated that he was a party to all of the conversations being recorded.

In considering whether to admit the recordings, Vice-chair Best relied on the principles to admit surreptitious recordings, as set out in Omoruyi-Odin v. Toronto District School Board3, which include: the relevance of these recordings, the manner in which they were obtained, a balancing of the prejudice their admission would have to the other party, and whether admitting the recordings would bring the administration of justice into disrepute.

In applying these factors, Vice-chair Best considered other contexts in which surreptitious recordings were at issue. He noted that those cases where the recordings were not admitted could be distinguished on their facts – namely in family matters where custody of children was at issue and the prejudicial effect outweighed any probative value. In the present case, Vice-chair Best noted that the nature of the recorded conversations — namely one-on-one discussions between the applicant and another person and meetings between the applicant and other individuals. Vice-chair Best found that while there is a relationship of trust in an ongoing employment relationship, it could be distinguished from the level of trust between spouses. Based on these distinguishing factors, and the fact that the applicant’s recordings clearly had probative value in establishing what was said by the individual respondent, Vice-chair Best determined that they were admissible.

Although ruling in favour of the admissibility of these recordings, Vice-chair Best did not condone the practice of surreptitious recordings and stated that making such recordings was not a right under the Code (the applicant had argued that making such recordings was enforcing his rights under the Code to support his allegation of reprisal in the context of the termination of his employment). Consequently, Vice-chair Best found that the applicant’s dismissal following his refusal to stop recording was not reprisal. Vice-chair Best also cautioned against staged recordings – where one party is seeking to elicit a certain type of response from the other party and where the full context of the recording could be missed. He stated that these were issues to consider when weighing the reliability of the recordings, rather than at the admissibility stage.

As workplace investigators, we can sometimes be faced with a surreptitious recording made by one of the parties to the investigation. In the weighing of evidence, where investigators can find themselves quickly immersed in contradictory versions of the same events, relying on seemingly untainted evidence such as audio or video recordings can seem like an obvious decision. Indeed, and as noted by Vice-chair Best, recordings can clearly have a probative value in shedding light on aspects of the investigation. Beyond this decision, workplace investigators might have other factors to consider with respect to the admissibility of this type of evidence. It is possible that, in their efforts to promote a positive workplace culture, employers set out rules in their collective agreements or internal policies preventing surreptitious recordings in the workplace generally, and in investigations. The Ardila-Zuluaga decision is an important reminder that investigators should tread cautiously when considering surreptitious recordings, giving careful consideration to their admissibility and the weight to be given to them if admitted.

1 Bruce Best serves as Vice-chair of the Human Rights Tribunal of Ontario.

2 We discussed this decision in our webinar about The Top 10 Workplace Investigation cases of 2021

3 2003 HRTO 18.

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