The Law of Secret Recordings at Work
The Temptation to Hit “Record”
Smartphones make it effortless to capture conversations. When tension mounts with a supervisor or colleagues, some employees wonder: “Why not secretly record meetings to protect myself?”
Under Canada’s Criminal Code, it is not illegal to record a discussion if you are an active participant. Yet legality is only half the story. Employers often view covert recording as a severe breach of trust—serious enough to justify dismissal for cause, meaning without notice or severance.
What Recent Court Decisions Tell Us
Canadian courts have begun drawing clearer lines around covert workplace recordings:
Case 1 – British Columbia (2022).
An accountant made hundreds of secret recordings over several years to document alleged discrimination and pay disputes. Although his concerns were genuine, the court upheld his dismissal. Why? The recordings captured sensitive personal data about colleagues, violated the employer’s code of conduct, and breached the heightened ethical duties of a professional accountant.Case 2 – Alberta (2022).
A worker secretly recorded meetings after his role was unilaterally changed and he was suspended without pay. Here, the relationship was already fractured and the employer’s conduct was questionable. The court ruled the recordings were justified self-protection, not misconduct.Case 3 – Ontario (2023).
During wrongful-dismissal litigation, an employer sought to toss out the claim when it discovered the employee’s covert recordings. The judge refused, emphasizing that secret taping is not automatically cause for dismissal. The key question is whether the employee acted in bad faith or had a legitimate need to preserve evidence.
Take-away: Context matters. Courts distinguish between employees who record to document real harassment or discrimination and those who tape “just in case,” to gain leverage, or to ambush the company.
Factors Courts Consider
Purpose and Good Faith. Are you recording to preserve evidence of genuine mistreatment, or to trap your employer?
Company Policies. Does a handbook or code of conduct expressly forbid recordings? If so, violating it may constitute willful misconduct.
Position and Fiduciary Duties. Senior managers and professionals owe elevated duties of loyalty. Their covert recordings face heavier scrutiny.
Scope and Content. One narrowly focused recording may be defensible; hundreds that capture confidential or personal data are usually not.
Use and Disclosure. Keeping recordings private for a legal claim differs from posting them online or sharing them beyond counsel.
Impact on Trust. Employment is rooted in mutual confidence. Secretly taping co-workers often destroys that trust—even if no law was broken.
Guidance for Employees
Pause and Reflect. Ask yourself whether less intrusive documentation (e.g., contemporaneous notes, emails) will suffice.
Check Policies. Review your employment agreement, handbook, and any confidentiality clauses before pressing “record.”
Seek Legal Advice First. An employment lawyer can assess whether recording is necessary and how to minimize risk.
Limit Distribution. If you do record, keep copies secure and share only with legal counsel or appropriate authorities.
Consider Your Role. The higher your position, the more likely a court will expect transparency—not covert tactics.
Guidance for Employers
Implement Clear Policies. State whether recordings are prohibited and the consequences for violations.
Train Managers. Explain how to handle suspicions of covert recording and maintain professional conduct regardless.
Investigate Fairly. If misconduct is alleged, follow a structured, good-faith investigation; heavy-handed reactions can backfire in court.
Balance Discipline and Context. Evaluate why the employee recorded—an abusive environment may reduce the weight of the misconduct.
Final Thoughts
A hidden recording can preserve crucial evidence, but it can also destroy working relationships and trigger termination for cause. Before you slide your phone onto the conference-room table, weigh the legal and practical risks.
How Vanguard Law Can Help
Whether you are an employee considering covert documentation or an employer grappling with secret recordings, Vanguard Law provides strategic, Ontario-specific advice to protect your interests. Contact us before a private taping turns into a public lawsuit.