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At the outset of an investigation, investigators need to consider how they will collect the verbal evidence from their interviewees. One of the best ways to ensure the accuracy of the evidence collected is to use a recording device. That being said, a recording device can make individuals nervous, and can lead to unexpected questions or challenges as to its use.
A recent case of the Human Rights Tribunal of Ontario (HRTO) considered this issue in the context of a request for accommodation. In Baseeso v. Power Systems Technology LTD., Alexa Baseeso, the applicant, brought a complaint of discrimination and reprisal against her employer, Power Systems Technology LTD. (“Power Systems”), including an allegation that they failed to accommodate her disability by denying her the commissions that her male counterparts received, and terminated her employment because she disclosed her disability, requested accommodation in the form of sick leave, and requested a raise and unpaid commissions.1
Prior to her HRTO application, Ms. Baseeso had filed a complaint with the Ministry of Labour, who in turn ordered the employer to conduct an investigation. In her HRTO application, Ms. Baseeso also alleged that the third-party investigator appointed by the employer failed to accommodate her during the investigation, specifically by denying Ms. Baseeso’s request to record their meeting. Ms. Baseeso alleged that recording the meeting would have allowed her to ensure the accuracy and veracity of the investigation.
The investigator allegedly offered to provide copies of her meeting notes to Ms. Baseeso, which Ms. Baseeso turned down. Ms. Baseeso questioned the investigator’s credentials and qualifications and refused to participate in the investigation process.
Because Ms. Baseeso did not demonstrate any nexus between the denial of her request to record the interview and her disability, the HRTO found Ms. Baseeso had no reasonable prospect of success of establishing that she was not accommodated in the investigation process and left the question of whether there is a duty to accommodate a request to record an interview unanswered.
While the “duty-to-accommodate question” remains unanswered, a 2020 decision of the Federal Court, Cadostin v. Canada (Attorney General), 2 has held that investigators are generally not obligated to provide an individual under investigation with a copy of interview recordings. In that case, an employee claimed that the investigator’s failure to provide him with the audio recordings, until the conclusion of the investigation, was unfair. The Court found that the investigator had acted appropriately, and confirmed that investigators are justified in denying an individual’s request for recordings in order to prevent leaks and to safeguard the integrity of the investigation.3
When recording interviews, investigators should consider these important takeaways and best practices:
- Let parties know in advance of the interview that they will be recorded and explain the reason(s) why the interview will be recorded.
- Assuming you are recording, make sure you use an encrypted device, and take additional steps to safeguard your interview recordings, as they are highly sensitive and contain confidential information.
- Where an interviewee expresses that they do not wish to be recorded, consider the reason(s) for the objection in order to better understand and help resolve any concerns about the use of the recording.
- Where the objection is rooted in an accommodation request, consider other available options, including offering to provide a copy of the investigator’s notes (as was done in Baseeso), making a transcript of the interview available for the party’s review, or agreeing not to record and relying on hand-written notes instead.
The above is not intended to serve as an exhaustive list of considerations, but as a general and practical guide for investigators, who, like the investigator in this case, wish to accurately record the interview while ensuring a fair and confidential process.
1 Baseeso v. Power Systems Technology LTD., 2021 HRTO 226.
2 Cadostin v. Canada (Attorney General), 2020 FC 183.
3 See my colleague, Katharine Montpetit, previous blog, Case law round-up on fairness: Recent examples of getting it right…and getting it wrong in workplace investigations
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