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(Section 84 Appointment)






Evidence Admissibility of Surreptitious Recording of Co-worker)

Arbitration Board:

James E. Dorsey, Q.C.

Representing the Union:

Jennifer Arnold

Representing the Employer:

Stephanie A. Vellins

Date of Hearing:

October 6, 2016

Date of Decision:

October 27, 2016

James E. Dorsey, Q.C. 3380 Redfern Place, North Vancouver, B. C. V7N 3W1 Tel 604-980-7225 Fax 604-909-2755


This is the promised record of a ruling during the hearing of this arbitration. The

grievance was subsequently resolved. The issue is the admissibility of a surreptitious

cellphone recording.

The grievor was dismissed from his position as Lead of the five member Charlie

squad in the Firehawk Crew for reasons that include two incidents of alleged
harassment of a fellow Charlie squad member on July 12 and 13, 2015 while the squad
was fighting a fire in the Fort Nelson area.

The incident on July 13th occurred after the workday while Charlie squad was

having dinner at a restaurant in the hotel at which they were billeted.


The dinner conversation began with the grievor expressing concern about the

fellow squad member incurring meal costs more than the allowable employee per diem.
The grievor administered claims for this expense on behalf of the entire squad.

The next event at the dinner table within the first ten minutes or so of the meal

was a personal attack by the grievor on the fellow squad member. At or near the
beginning of this attack, the fellow squad member used his cellphone to surreptitiously
record approximately seven and one-half minutes of the exchange and background
sounds. I understand approximately four and one-half minutes of the recording is all or
part of the grievors outburst against the fellow squad member.

At this preliminary stage, the employer asserts, but has not adduced evidence to

establish the reliability or unadulterated authenticity of the recording. That will have to
happen whenever it seeks to adduce the recording. During its investigation, the
employer played the relevant portion of the recording to the grievor. The employer says
his response was that the outburst was not his finest hour, which acknowledges it was a
recording of all or some of what he said.

The recording was disclosed to the union, which does not assert the recording is

not authentic or complete for the period recorded.


The employer intends to adduce the recording as evidence of what the grievor

said and his tone.


The union objects and seeks a preliminary ruling the recording is inadmissible.

The reasons for the objection are: (1) the employer has not established the recording is

a reliable record of a portion of the mealtime conversation; (2) the recording is not the
best available evidence of what the grievor said and the full context in which he said
what he said; and (3) there are policy reasons not to allow the employer to adduce this
surreptitious recording.

The core of the union's objection is that the proposed evidence is a partial

recording of a conversation that will be testified to by the person who spoke and others
who heard what he said. This incomplete, decontextualized recording ought to be
excluded because it was made surreptitiously and contrary to the grievors privacy
expectations. Its admission may create a workplace climate of distrust among fellow
employees dependent on unconditional co-worker support for their safety in their fire
suppression work.1

The employer submits there is no basis to question the authenticity of the

recording, which it acknowledges is an excerpt, but asserts is the harassing excerpt, of

the after work dinner conversation among all members of a work unit lead by the
grievor. The employer submits the content of the recording, including the language and
tone of the grievors statements, is relevant to the subject of this arbitration. It submits
the recording is the best evidence of what the grievor said and the manner in which he
said it.

The employer submits this recording is an exception to any public or general

policy in favour of excluding surreptitious recordings from evidence in labour relations

adjudications because the tape will avoid and resolve any difference in recollection
among witnesses and potential issues of credibility as witnesses recall what was said
through a personal bias in favour of the grievor or the fellow squad member. Finally, the
employer submits the preferred approach is to admit the recording into evidence and
determine its weight or exclusion with the benefit of all the evidence adduced.2

See majority decision in Miletich v. Northmount Camp Services (1975) Ltd. [1984] B.C.L.R.B.D. No. 467.
The dissent ([1984] B.C.L.R.B.D. No. 399) preferred the 1977 approach of the C.L.R.B. in CKLW Radio
Broadcasting Limited 23 di 51; 77 CLLC 16,110, in which a panel I chaired admitted a taped telephone
recording in the pursuit of the truth. Subsequently, the B.C.L.R.B. panel in Miletich reported prior to
the beginning of the Union's case, the parties themselves agreed to introduce the transcripts of the taped
telephone conversations into evidence, and the hearing proceeded on that basis. The panel determined
to accept that all telephone calls between Arnold and the Complainant were taped and entered into
evidence in these proceedings. [1985] B.C.L.R.B.D. No. 249 The majoritys initial approach was
embraced in Focus Building Services Ltd. [1986] B.C.L.R.B.D. No. 330; reconsideration denied [1987]
B.C.L.R.B.D. No. 259
2 See Domtar (Vancouver Mill) [2000] B.C.C.A.A.A. No. 285 (McPhillips)


In British Columbia, the prevailing opinion is that the evidentiary probative value

of surreptitious recordings of workplace conversations is outweighed by the possible

deleterious and chilling effect admissibility of such recordings will have on workplace
cooperation, collaboration, open settlement discussion and frank exchange in problem
solving. Countenancing surreptitious recordings to gather evidence for future conflict
adjudication does not encourage trust in workplace relationships; foster objectives of
cooperative participation in resolution of workplace issues; or promote conditions
favorable for the orderly, constructive settlement of disputes. To the contrary, it can
create a climate of apprehension, antagonism and distrust. It can spawn a climate of
speaking to the record, not the problem or possible resolutions, by persons fearful they
are being surreptitiously recorded. Persons making surreptitious recordings might
engage in behaviour seeking to induce others to make culpable statements.3

The exceptions when surreptitious recording are considered to have been

warranted and are admissible include circumstances when persons in the employment
or broader relationship making and tendering the recording had to resort to surreptitious
recording to deal with a relationship power imbalance in order to objectively establish
their credibility in the face of being accused of being a perpetrator or liar, rather than a

This after work, dinner time recording is not a situation where one person says a

conversation happened and another says it did not and the recording is crucial evidence
to determine whether it did.5

See B.C. Ferry Services Inc. [2015] B.C.C.A.A.A. No. 35 (McEwen);

E.g., Greater Niagara General Hospital [1989] O.L.A.A. No. 37 (Joyce), 29: In summary, the
acceptance of secretly obtained recordings should normally be confined to situations where they were
brought into play only after a specific related incident had previously occurred or where it can be shown
that the relationship between the parties is such that the use of a tape-recording was warranted.
Arbitrator Joyce lists four examples when the evidence will be helpful, advisable and admissible. Others
are listed in Domtar (Vancouver Mill) [2000] B.C.C.A.A.A. No. 285 (McPhillips), 239. One is: As well, it
has been often stated that an arbitration board must consider whether the admission of the evidence
would bring the arbitration process into disrepute or whether that would be the case if the evidence was
not admitted.
5 See Canada Post Corp. [1997] C.L.A.D. No. 126 (Ready) Admissible to prove a telephone call
happened when the alleged disciplinary cause was not responding to employer letters and calls. While I
agree that the practice of tape recording telephone calls is not conducive to an open and honest
relationship this point is, in the circumstances, outweighed by the requirement of this Board to consider all
of the evidence surrounding her discharge. ( 12)


Assuming the recording is authentic and reliable, its content is relevant and might

be probative. The social context in which it was recorded was related to working
relationships, especially the preceding discussion of per diems, but it is remote from the
trusting, cooperative, problem solving relationships underpinning the general policy
favoring exclusion.

I find the balance between real or potential prejudicial effect of an unplanned

recording in the not staged, relaxed situation away from the stress of being on the fire
line is outweighed by the probative value of having an accurate record of apparently
unprovoked words and tone that became the subject of a complaint and the employer's
disciplinary decision.6

The effect the recording might have on either the presentation of the union or

employer's case is secondary to the prejudicial effect exclusion of the recording will
have on the credibility and acceptability of the outcome of this arbitration process.

It will be inexplicable to the employee witnesses at the dinner table why their

recollection of the words and tone over 15 months ago, which will be subject to time
consuming dissection to expose differences in recollection, is the approach preferred to
determining what was said in what tone over listening to a recording of what was said
with whatever limitations and frailties it might have. They would be justified in regarding
such a fact-finding process as an anachronism lacking common sense; operating in a
world in which they do not live; and should be treated with a corresponding lack of

The union's objection is dismissed.


James E. Dorsey
James E. Dorsey

This in contrast to employer surveillance away from work where other legal and policy considerations
must be considered. See Crown Packaging Ltd. (Giesbrecht Grievance) [2014] B.C.C.A.A.A. No. 43
(Dorsey) For an example of judicial balancing of probative value and prejudicial effect on the admissibility
of surreptitious recordings in domestic relationships see Lam v. Chiu [2012] B.C.J. No. 586