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ARTICLE · 19 SEPTEMBER 2014

Employers Beware: Even "Secret" Audio Recordings May Be Admissible

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A decision by an Ontario arbitrator provides a striking illustration of the principle of arbitral deference and is a cautionary tale about the potential use of audio recordings.

CanadaEmployment and HR
McMillan LLP
McMillan LLP
William Wu
William Wu
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A recent decision by an Ontario arbitrator provides a striking illustration of the principle of arbitral deference and is a cautionary tale about the potential use of audio recordings, even those made without knowledge or consent. In Direct Energy Marketing Limited v Unifor, Local 975, 2014 CanLII 657 (ONLA ) the arbitrator was asked and ultimately agreed to admit as evidence an audio recording which was secretly made during collective bargaining by a member of the union's negotiating committee.

Background: Recordings of Negotiations

After negotiations between Direct Energy Marketing and Unifor failed to produce a new collective agreement, the union went on strike. The labour dispute ended with the signing of a Memorandum of Settlement in April 2012. The union alleged that the employer violated the undertakings it made in the Memorandum and the negotiations by failing or refusing to negotiate shift schedules.

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