By Michael Blinick, Paul Papaeliou & Blake Parker
You are sitting in a termination meeting, discussing a disputed invoice, or speaking with an insurer about a claim. The conversation seems private. It may not be.
Many Canadians may be surprised to learn that a participant in a conversation can generally record it without telling anyone else. Whether the discussion takes place in person, over the phone, or in a virtual meeting, a participant may be quietly creating evidence that could later be played in court.
As technology expands the ways people can communicate, save and share information, parties increasingly arrive in court armed with recordings of conversations that occurred months or even years earlier. Those recordings can confirm promises that were made, expose contradictions, and become some of the most persuasive evidence in a civil action.
Yes, That Recording May Be Admissible
Canada follows what is commonly referred to as the “one-party consent” rule.[1] In practical terms, a person who participates in a conversation can usually record it without notifying the other participants. The rule applies whether the person is sitting across a boardroom table, speaking with a neighbour across a fenceline, on the telephone, or during a video conference.
There is, however, an important dividing line: participating in a conversation is not the same as eavesdropping on someone else’s conversation. A person generally cannot rely on the one-party consent rule to record a conversation in which that person is not participating.
Memories Fade But Recordings Preserve
Human memory is imperfect. People forget details, recollections evolve, and years may pass before a case reaches trial. A recording does not remember the conversation differently over time. It preserves the words that were spoken, including the pauses, qualifications, and promises that may later become important. As a result, lawful recordings can be powerful evidence in a civil proceeding where they are relevant to the issues in dispute.
Relevant evidence is generally admissible at trial. In civil proceedings, the fact that a recording was made secretly, or even improperly, does not on its own require the court to exclude it.[2]
Courts regularly admit recordings into evidence that are relevant and can be shown to be authentic. A recording can be particularly influential when it contradicts a witness’s later account of the same conversation or event.
But pressing “record” does not create perfect evidence. The court must still consider whether the recording is complete, authentic, reliable, privileged, and properly understood in its surrounding context.
The Production of Recordings Can Cut Both Ways
A recording does not take sides. The same conversation that supports one part of a party’s case may undermine another. A call recorded to protect a business, insurer, property manager, or employer may ultimately contain an admission, an unfulfilled promise, or an explanation that assists the opposing party.
Organizations that routinely record calls or meetings should therefore remember that they are not merely preserving useful information. They may also be creating a contemporaneous evidentiary record that will have to be disclosed if litigation follows.
The Recording You Hide May Be the Recording You Lose
A party cannot ordinarily keep a helpful recording in reserve and reveal it only when the tactical moment seems right. In Ontario, a party that fails to disclose a favourable document may be prevented from relying on it at trial unless the court grants leave. [3]
That is what happened in Terrigno v Fox[4]. The plaintiff deliberately omitted an audio recording of the disputed incident from his sworn affidavits of records because he feared that the defendant would tailor his evidence around it. The strategy backfired. When the plaintiff later attempted to introduce the recording at trial, the court refused to admit it.
The lesson is simple: a recording may be powerful evidence, but only if the party preserves, discloses, and introduces it properly.
However, admission at trial is only the first. The court must still decide how much weight a recording deserves, and the surrounding context of the recording matters when considering the applicable weight for the recording.
When the Recording Tells the Story
The effect of a recording is illustrated by Teljeur v. Aurora Hotel Group. [5] A resort’s general manager secretly recorded the meeting in which two executives terminated his employment. The recording captured him repeatedly asking for written confirmation of the termination. It also captured the executives encouraging him to resign and making promises about severance and reimbursement that were not honoured.
On summary judgment, the court did not have to choose between two competing memories of the meeting. It could hear what was said. The recording became important evidence of the employer’s conduct and contributed to an award of $15,000 in moral damages for bad faith in the manner of dismissal. The decision was later upheld on appeal.
Recordings can be especially persuasive for this reason. They may allow the court to move beyond “he said, she said” and examine the conversation itself.
Communicate Like the Microphone Is Always On
The practical lesson is not that every conversation should become stiff, guarded, or robotic. It is that important conversations should be handled with care.
Speak accurately. Avoid making promises that have not been authorized. Do not speculate when you do not know the answer. If a position has not been finalized, say so. A casual remark made in the heat of the moment can sound very different when replayed months later in a quiet courtroom.
The most important evidence is often created before anyone recognizes it as evidence.
The Final Word May Be a Recording
Evidence is the foundation of every successful civil action. Documents, emails, text messages, and recordings help courts reconstruct what happened before litigation began. A secretly recorded conversation may not decide a case by itself, but it can confirm a promise, expose a contradiction, or alter the court’s assessment of a witness’s evidence.
Nearly everyone now carries a recording device in their pocket or purse. Individuals and organizations should therefore approach important conversations with a simple assumption: the microphone may be on. Today’s passing remark could become tomorrow’s evidence.
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[1] Criminal Code, RSC 1985, c C-46, s 184(2)(a).
[2] Rooney v GSL Chevrolet Cadillac Ltd, 2022 ABKB 813 at paras 17–26 [Rooney].
[3] Rules of Civil Procedure, RRO 1990, Reg 194, r 30.08(1)(a); Alberta Rules of Court, Alta Reg 124/2010, r 5.16.
[4] Terrigno v Fox, 2023 ABKB 89; Alberta Rules of Court, Alta Reg 124/2010, r 5.16.
[5] Teljeur v. Aurora Hotel Group, 2023 ONSC 1324, aff’d 2024 ONCA 213.