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With the capabilities of today’s smartphones and wearable technology (such as, Google Glass and the anticipated iWatch), it is easier than ever for anyone to record events and conversations – even without the knowledge of those around them. Inevitably, this technology makes its way around the bargaining table to capture bargaining negotiations. Can these recordings be relied upon later as evidence?

While arbitrators’ and tribunals’ approaches to the admissibility of surreptitious recordings are still evolving, recent decisions demonstrate some of the issues surrounding this evidence. The underlying problem with surreptitiously obtained recordings is that they were secretly obtained, without the consent of the other party. As a result, some arbitrators and tribunals may be reluctant to admit the evidence because doing so may impair the trust and informality required for the ongoing union-management relationship (Teamsters, Local 31 v. D.H.L. Int'l Express Ltd. (1995), 28 C.L.R.B.R. (2d) 297). In this approach, the recording will only be admissible if the existence and content of the recording has been disclosed to the other party and the decision-maker; the same evidence is not available through other means; and the value of the evidence outweighs its potential harm. This reluctance will be even greater where the party seeking to rely on the recording is unable, or unwilling, to disclose the source of the recording, or where the audio has been altered in any way.

In other instances, including recent cases (Direct Energy Marketing Limited v. Unifor, Local 975), secretly obtained evidence has been admitted due to its relevance and its highly probative value on a critical issue. A surreptitious recording may then be admitted if refusing it would otherwise unfairly hamper a defence. This ‘relevance approach’ takes a much broader view in respect of admissibility of such evidence, and seems to encourage greater acceptance of these recordings.

As the capability of people to secretly obtain their own high-quality recordings continues to grow, arbitrators and tribunals will increasingly be required to balance concerns over relevance and prejudice.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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