Introduction
In the digital age, employees surreptitiously recording meetings with their co-workers and managers is becoming more prevalent. A Manitoba court found that the secret recording of meetings with superiors was a breach of the confidentiality and privacy obligations owed to the employer (see Hart v. Parrish & Heimbecker, 2017 MBQB 68). The Ontario Labour Relations Board found that a termination for secretly recording conversations with colleagues was not a reprisal (see Paul Hemmings v. North York General Hospital, 2021 CanLII 28054 (ON LRB)). However, in a case from British Columbia, the tribunal found that surreptitious recording was not serious misconduct (see Familiar Transmissions Ltd. (Re), 2019 BCEST 125 (CanLII)).
In a recent decision from the Ontario Superior Court of Justice, Teljeur v. Aurora Hotel Group, 2023 ONSC 1324, a former employee used a secret recording of their termination meeting in support of their successful claim for damages. This award included $15,000 in moral or “bad faith” damages. The SCJ’s decision was recently upheld by the Ontario Court of Appeal in Teljeur v. Aurora Hotel Group, 2024 ONCA 213. Both decisions, and their implications for employers, are discussed below.
Background
The 56-year-old Plaintiff worked as a senior general manager for a full-service resort in Ontario for just over three years. One day, two senior executives met with the Plaintiff and terminated his employment. There was no “cause” provided for the termination, but the “reason” given was that the Defendant had “elected to retain an outside management company to manage the resort.”
The Plaintiff filed a claim against the Defendant and brought a motion for summary judgment. He sought, among other things, moral damages in the amount of $20,000 for bad faith and mental distress.
Moral Damages
On the motion for summary judgment, Justice M. McKelvey found in favour of the Plaintiff and awarded him a notice period of seven months and $15,000 in moral damages.
The Secret Recording
In seeking to determine whether moral damages were justified, Justice McKelvey accepted into evidence a recording of the termination meeting that the Plaintiff had made “surreptitiously”. The Defendant did not seek any relief arising from the conduct of the Plaintiff in making the recordings without the knowledge of the executives.
The Court found that the recording highlighted “a number of disturbing aspects about the plaintiff’s termination.” For example, the Defendant did not give written notice of the termination to the Plaintiff, contrary to the ESA and even though the Plaintiff had requested this several times in the meeting and afterwards. The Defendant was also misleading and dishonest regarding the amount of severance that the Plaintiff would be paid, promising a payment of eight weeks in the meeting that was not paid out subsequently. In fact, the Defendant failed to pay the ESA minimums to the Plaintiff until several months after his termination.
The Defendant also failed to reimburse the Plaintiff for over $16,000 in workplace expenses. The Court would later order the Defendant to repay this money with interest; however, the Court found that the Plaintiff had already experienced significant mental distress from not having access to these funds during the relevant period. This stress was compounded by the experience of being terminated in an unduly insensitive manner.
Ultimately, Justice McKelvey found that the Plaintiff was entitled to $15,000 in moral damages, in response to the Defendant’s poor handling of the termination meeting, as evidenced by the Plaintiff’s testimony and the secret recording.
The Defendant appealed this decision to the Court of Appeal.
Defendant’s Appeal Dismissed
On appeal, the Defendant argued that the conduct in question was “a far cry from the threshold for awarding moral damages.” The Appeal Court disagreed, and found that “[t]he facts that the trial judge relied on to award moral damages were in fact pleaded and the trial judge made no error in making the award.” In other words, the Appeal Court was given no good reason to overturn the trial judge’s decision and agreed with the trial judge that the employer’s conduct in this case “was deserving of censure.” Accordingly, the Appeal Court dismissed the employer’s appeal and upheld the original judgement.
Takeaways
This decision serves as a reminder for employers to comply with their obligations and duties, under legislation and under common law, when dismissing employees. It is also prudent for employers to implement policies regarding the use of recording devices in the workplace.
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