Secret Recordings: Legal Implications Explored

Introduction

The recent Court of Appeal decision in Shalagin v. Mercer Celgar Limited Partnership, 2023 BCCA 373 ("Mercer") cautions employees about making surreptitious/secret recordings in the workplace. While an employee may record situations that are necessary to expose an injustice such as workplace bullying, the courts discourage the practice because it can foster distrust in the employment relationship and capture confidential and unrelated, personal information. Courts will look at the employee's conduct in making the recordings to determine whether the employer had cause to terminate.

Facts

In Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112, employee, Mr. Shalagin was terminated without cause by his employer, Mercer Celgar Limited Partnership (the "Company") on March 25, 2020. Subsequently, Mr. Shalagin filed a wrongful dismissal action at the BC Supreme Court ("BCSC") and a human rights complaint at the BC Human Rights Tribunal. As