Articles:

1. Wearable Devices / Workplace Recordings
2. Replacement Workers
3. Working for Workers Act

Eye-Spy – Wearable Technology and Recordings in the Workplace

Matthew Kim, Lijing Black

Privacy in the workplace will be an area to closely monitor in 2025, particularly given the rise of AI-enhanced Wearable Technology.

Earlier this year, Ray-Ban and Meta released an updated version of their Ray-Ban Meta Wayfarer glasses which cram smartphone functionality into the classic Buddy Holly frame. Equipped with a speaker, microphone, Bluetooth, 32GB of flash storage, and a 12-megapixel camera, the Ray-Ban Meta Wayfarer can take high-resolution pictures and video, and stream it on Instagram, all by voice prompt. The Wayfarer is not alone – it joins other smart glass offerings on the market from companies like Solos, Xreal, Lucyd and Amazon.

Given their relative affordability and the growing trend of “lifestyle content”, it’s only a matter of time before smart glasses start to appear in the workplace—if they have not yet already. This makes surreptitious recording and employee monitoring key issues to watch out for in 2025.

Below is a refresher on notable cases dealing with surreptitious recordings and some takeaways from each case.

Shalagin v Mercer Celgar Limited Partnership, 2022 BCSC 112

Summary: A Certified Professional Accountant was terminated without cause after raising concerns about bonus calculations and making apparent threats of litigation. Following his dismissal, the Employer discovered he had secretly recorded over 130 workplace conversations, spanning nearly a decade. These recordings included sensitive financial discussions, HR matters, and personal employee information.

Although the recordings were not technically illegal, the Court found that they breached the Employer’s policies, the CPA Code of Conduct, and the employee’s ethical obligations. The recordings violated colleagues’ privacy, undermined trust and fundamentally ruptured the employment relationship. While the Plaintiff argued the recordings were made to document discrimination and protect his interests, the Court was unconvinced. The court concluded that the recordings, by themselves, were sufficient cause for termination, emphasizing the critical importance of trust and privacy in the workplace.

Key Takeaway: Even though recordings were technically not illegal, the courts have found that such secretive recordings have a corrosive effect on workplace cooperation, collaboration and fundamentally erode trust that is essential to the ongoing employment relationship. Key was the presence of robust policies that set out the employee’s confidentiality and privacy obligations.

Hart v. Parrish & Heimbecker, 2017 MBQB 68

Summary: The Plaintiff was a problematic employee of over six years with a history of inappropriate behavior, including verbal aggression and harassment complaints from colleagues. Despite being directed to take a leadership review course after repeated incidents, his behaviour persisted. Between October 2013 and March 2014, he used his company-issued phone to secretly record meetings with senior management, including discussions about complaints about him and his performance.

The Employer argued that the recordings violated company policies and undermined trust, confidentiality, and loyalty in the employment relationship. The Court agreed, finding that the recordings demonstrated the Plaintiff’s awareness of the seriousness of the complaints against him. While the Court stated it was unnecessary to determine whether the recordings alone constituted just cause, it found that the Plaintiff’s cumulative misconduct, including breaches of workplace policies and confidentiality and privacy obligations, justified termination.

Key Takeway: This case illustrates that the surreptitious nature of recordings may serve to illustrate than the individual who made the recordings was aware of the potential consequences for breaching their confidentiality and privacy obligations, and that the making of such records amounted to misconduct.

Rooney v GSL Chevrolet Cadillac, 2022 ABKB 813

Summary: The Alberta Court of King’s Bench ruled in favour of a Plaintiff who had secretly recorded conversations with his supervisors, finding the Plaintiff’s actions were justified. The case centered on whether these recordings, which documented disciplinary actions and changes to his employment, undermined workplace trust and could justify after-acquired cause for dismissal.

The Plaintiff, who believed he was being unfairly disciplined and targeted recorded conversations to protect himself from constructive dismissal. The Court admitted the recordings as reliable evidence. It held that while potentially improper in their potential to undermine trust and irreparably damage the employment relationship, the recordings in this case were justified because the Employer had already suspended the Plaintiff without pay contrary to his terms of employment, and the Employer had no clear policies prohibiting recordings. Here, the recordings corroborated the Plaintiff’s claims of unfair treatment. The Court awarded damages to the Plaintiff for constructive dismissal, highlighting the importance of context when assessing the ethical and legal implications of workplace recordings.

Key Takeaway: In relying upon the recordings in reaching its decision, the Court pointed to a lack of policies expressly prohibiting recordings and a lack of evidence that the Plaintiff agreed to such policies. This case demonstrates the willingness of courts to admit surreptitious recordings as evidence in wrongful dismissal cases.

The Final Cut

The above cases demonstrate that employers should ensure they have the proper policies in place to account for the growing trend of recordings in the workplace. Employers should consider having such policies directly address (among other things) wearable devices, because for better or for worse that kind of technology is on the rise.

 

Make a New Year’s Resolution to be Prepared for Labour Disruptions

Prateek Awasthi

This year, the Federal Minister of Labour invoked Section 107 of the Canada Labour Code on several occasions to end labour strikes at ports, the railways, and the postal service. Not all unionized employers can expect such a ministerial intervention, so this article provides an refresher on the rules regarding using replacement workers, as well as other considerations for federally and provincially regulated employers with potential labour disruptions on the horizon.

Federal Ban on Replacement Workers

Previously, we provided an update about the new federal ban on replacement workers (C-58), which has received Royal Assent, and will come into effect on June 30, 2025.

Under the new rules, federal employers are prohibited from using the services of certain categories of persons to perform all or part of the duties of an employee in the bargaining unit on strike or lockout.

Further, in order to establish an unfair labour practice under section 94(2.1) of the Canada Labour Code, it will no longer be a requirement for a trade union to show that a a federal employer’s intention in hiring replacement workers was to undermine a trade union’s representational capacity. The mere use of replacement workers may now constitute an unfair labour practice, regardless of the employer’s underlying intentions for doing so.

Provincially Regulated Employers

British Columbia and Quebec are the only provinces which have rules prohibiting the use of replacement workers during strikes and lockouts:

• In Quebec, section 109.1 of the Labour Code prohibits employers from using using the services of replacement workers to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out.
• In British Columbia, section 68(1) of the Labour Relations Code prohibits the use of replacement workers during a lawful strike and section 6(3)(e) of the Labour Relations Code declares that the use of replacement workers contrary to s. 68 is an unfair labour practice.

In other provinces, even though there is no outright ban on using replacement workers, doing so may constitute a prohibited practice under certain circumstances pursuant to specific provisions of the applicable labour legislation.

Preparing for a Strike or Lockout

In addition to considering replacement workers, federally and provincially regulated employers facing a potential labour dispute may also need to think about the following:

• Preparing a contingency plan for operational and business continuity;
• Developing a strategy to communicate with employees during negotiations and a strike or lockout in compliance with labour relations laws;
• Negotiating a picketing protocol to limit when, where and how picketing will take place;
• Setting up set up a “situation room” to monitor and record picket line activity on an ongoing basis;
• Setting up and maintaining liaison with the labour relations unit of the local police force, and requesting support as and when needed; and
• Consulting with your legal team to determine if and when an injunction is necessary and appropriate.

The rules around what constitutes an unfair labour practice during a strike or lockout, and what type of conduct is permissile for unions and their members to engage in during a strike, vary from province to province, and may change from time to time.

For example, as we wrote in a previous article, the new rules in British Columbia expand the definition of “strike” to exclude “picketing conducted by employees in respect of whom collective bargaining is regulated by the laws of Canada or another province who are locked out or on strike.” This would allow, for instance, unionized workers in BC to refuse to cross the picket line of any striking employees of a federally regulated employer.

Looking ahead into the new year, it is important to plan ahead of time for potential strike action and seek legal advice early, so that you can negotiate with confidence and you are not caught unprepared in the event of a labour dispute.

 

Working for Workers Acts: The Gifts That Keeps On Giving

Anthony Kwong

Just in time for the holiday season, on December 12, 2024, the Government of Ontario passed the Working for Workers Six Act, 2024, which will become law upon receiving Royal Assent, building on a number of previous changes to workplace-related legislation, including the Working for Workers Five Act, 2024.  

Working for Workers Five Act, 2024

On October 28, 2024, Working for Workers Five received Royal Assent and became law. Many of the legislative changes came into immediate force and effect as of that date, while other provisions (including the various “new hire information” and “job posting” and “washroom facility” requirements) do not become effective until July 1, 2025 or January 1, 2026.

Pursuant to O. Reg. 477/24, effective July 1, 2025, employers must provide employees with various information, in writing, before the employee’s first day of work (or as soon after as reasonably possible), including:

• The employer’s legal name and contact information.
• A general description of where the employee is initially expected to perform work.
• The employee’s starting salary/wage rate/commission.
• The pay period and pay day established by the employer.
• A general description of the employee’s anticipated hours of work.

Employers with less than 25 employees on the employee’s first day of work are exempt from this requirement, as are “assignment employees” (those employed by a temporary help agency for the purpose of being assigned to perform work on a temporary basis for clients of the agency).

Pursuant to O. Reg. 476/24, effective January 1, 2026, “publicly advertised job postings” (meaning an external job posting that an employer or a person acting on behalf of an employer advertises to the general public in any manner, with certain exceptions) must disclose:

• the expected range of wages or salary for the position where the top end of the expected range is less than $200,000 annually, and the range cannot be greater than $50,000;
• whether the employer uses artificial intelligence to screen, assess or select applicants for a position; and
• whether the position is vacant.

Additionally, employers must advise applicants they have interviewed for a publicly advertised job as to whether a hiring decision has been made with respect to that job, within 45 days of the date of the interview (this requirement does not apply to applicants who were only subject to preliminary screenings).

Pursuant to O. Reg. 480/24, also effective January 1, 2026, employers and constructors are required to ensure that “washroom facilities” provided to workers are maintained in a clean and sanitary condition, and that cleaning records are maintained and made available to workers..

These requirements build on previous amendments to the Employment Standards Act, 2000 (“ESA”) and the Occupational Health and Safety Act (“OHSA”), including a prohibition on requiring a medical certificate to establish an employee’s entitlement to take the three days of unpaid sick leave under section 50 of the ESA, and updating the definition of “harassment” to include virtual harassment, which already came into force and effect as of October 31, 2024. Previous coverage of those earlier changes is available here.

Working for Workers Six Act, 2024

Working for Workers Six introduces further amendments to several workplace-related legislation, including the ESA and the OHSA:

• Introducing mandatory minimum fines of $500,000 for corporations convicted of repeated offences within a two-year period under the OHSA, which resulted in the death or serious injury of one or more workers.
• Introducing a 16-week job-protected leave to the ESA for adopted parents and parents through surrogacy, aligning with upcoming federal changes to create employment insurance (EI) benefits for adoption.
• Introducing a 27-week job-protected leave to the ESA for employees unable to work due to a serious medical condition.
• Expanding on the requirement for properly fitting personal protective clothing and equipment (PPE) for women and all workers with diverse body shapes in the construction sector to apply to all sectors.
• Ensuring access to clean washrooms by proposing specific requirements to increase accountability and transparency with washroom cleaning records, which will cover what records must be posted and where.

More in-depth coverage on the changes to the OHSA is also available here.

The changes to the ESA become effective either 6 months after the day Working for Workers Six receives Royal Assent, or on a date to be proclaimed by the Lieutenant Governor. A majority of the changes to the OHSA become effective upon Royal Assent, as do the changes to the Ontario Immigration Act, 2015. We will keep you updated as these effective dates are determined.

Key Takeaways for Employers

Many of the Working for Workers changes are aimed at greater transparency and protections for employees, which translate to increased obligations for employers. With many of these amendments coming into force shortly, employers should be proactive to ensure they are in compliance with these obligations prior to the effective dates. Further guidance from the Ministry of Labour, Immigration, Training and Skills Development  may also be forthcoming, and we will keep you updated on any further announcements – we’re looking at you, Working for Workers Seven Act (not yet announced).

If you have any questions regarding whether these legislative changes apply to you, and what you need to do to comply if they do so apply, please contract a Mathews Dinsdale Employment Lawyer.

 

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.