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Is it legal to record a conversation at work in Canada?

is it ethical to tape a conversation

with a co-worker Jody Wilson reybold's

admission she taped a phone call with

the clerk of the Privy Council has

raised questions on the ethics of taping

conversations and we are joined this

morning by Alex Lucia Farrow partner at

San Fierro tamarkan LLP to talk more a

little bit about this Alex good morning

good morning in it so is it legal to

record a conversation with your boss or

your coworker sure so as employment

lawyers in it we've gotten this question

and calls on this issue quite a bit over

the past week it's certainly an

interesting topic to address the

legalities of recording conversations

most people are actually surprised to

hear that it is completely and perfectly

legal to record a conversation that you

are personally involved with and

participating in okay so if you and I

are having a conversation and I'm

recording this even without your

knowledge or consent that's a perfectly

legal thing to do okay so that's okay an

aboveboard

what's completely illegal and where we

run into problems here is it's actually

criminal it's contrary to section 184 of

the Criminal Code of Canada to record

other people's conversations okay so if

you and a co-worker for example are you

and a manager having a conversation I

decide to record that I could be

criminally charged for that Wow okay so

why would somebody want to record a

conversation where where would be the

reason for it

so we see it most often in the

employment context when the employee is

in a very vulnerable vulnerable position

so and as is the case for example with

miss Wilson Raybould she felt that she

was in a toxic environment she was being

pressured she was being asked to do

something that she thought was unethical

and potentially unconstitutional in a

situation like that an employee made the

side and it may be very reasonable for

that employee to decide that that they

should be recording that conversation

right oftentimes that's a conversation

with the manager or with or with a

superior where that person feels a level

of vulnerability and when there's a

power imbalance between the parties

that's when and typically as employment

lawyers we might even recommend in some

cases to record those kinds of

conversations so then maybe there's a

bigger question about if it's ethical if

it's legal as long as you're a

participant even if the other person is

not aware of the conversation then it

seems to be maybe a bigger question of

is it ethical because people seem to

feel

little like it's a little icky if you

will write that it feels a little dirty

a sneaky or something that it's just not

right so does their couldn't there be

ethical rules for an employer for a

company to have that it's not allowed

they're absolutely canon and that's a

great point you're right it does feel a

little awkward it's an invasion of

privacy where you certainly as an

employer you don't want a work

environment where your employees fear

that they're being you know audio

recorded all the time that's going to

create a state of mistrust and you know

a bit of conspiracy you don't want that

in your in your workplace and the ethics

are complicated because as I mentioned

previously there are circumstances where

it's actually justified yeah and we're

patek perhaps it's even recommended but

for the most part and I would say

employers could even Institute a policy

to this effect for the most part you

don't want to condone or encourage

employees to be recording in the

workplace you could certain put that

kind of policy in place it's always

always going to be fact and context

specific yeah and it's so you can set

that general policy it doesn't mean that

for example that employee in that

vulnerable state that you can preclude

them from audio recording can you be

terminated from your job without

severance if you are caught recording a

conversation even if it is lawful that

it's a conversation that you were a part

of it's a great question and there are

previous cases in which employees have

been terminated for that reason now

those cases are few and far between it's

by far the exception however in a case

and you can problem you and I could

probably imagine a case where recording

a conversation even though it's

completely legal

it is extremely unethical and a

violation of your employment terms for

example if you were a manager or even a

co work for that matter and you're

trying to take advantage of another

employee or create difficulties or

problems in the workplace by recording

someone else again that's contrary to

what you can expect and expect an

employee to do in the workplace it's

contrary to those norms and that can

potentially lead to termination is there

anything you can do if you are in a

conversation amongst people and you see

someone who's recording something and

you don't feel comfortable with it what

do you do it's difficult and again going

back to from a legal point of view

there's probably not much you

because as long as the person recording

is part of that conversation that that's

it's completely legal there's no real

recourse there practically speaking what

you can do if you know you're being

recorded is withdraw from that

conversation okay

state your position for the record and

so you know being aware that it's being

recorded but and if you're in the

employment context

well then report that to a superior

report that to HR again that might be

problematic for that specific employee

Alex great information thank you very

much obviously very timely right now

appreciate it