Recording Hearings: Let’s Be Clear on the Purpose

Some tribunals routinely tape record proceedings while others consistently prohibit it. And within those tribunals that allow tape recording of proceedings, practices on the use of the tape or transcript also vary. It is pretty clear in law that administrative tribunals are not required to record the proceedings, unless required to do so by statute: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793

Administrative tribunals were designed to be less formal than courts, yet the recording of proceedings is a hallmark of the judicial process. Why do some tribunals routinely tape proceedings and others not?

Labour boards and arbitrators have traditionally not permitted the recording of hearings to preserve the informality of proceedings. This is a long tradition in the labour law world that some trace back to a decision issued by the Canada Labour Relations Board after its experiment with recording proceedings (Canadian Merchant Service Guild and Canadian Pacific Limited, [1983] 3 Can LRBR 87):

On the question of recording proceedings at Board hearings the Board followed the practice of its predecessors. The primary purpose was to have available to the Federal Court of Appeal, should one party wish it, a transcript of Board proceedings to scrutinize to determine if a Board decision was reviewable under [the Federal Court Act]…

A price was paid for this practice. The Board’s physical set up at a hearing discouraged non-legally trained persons from appearing. The presence of microphones and recordings intimidated employees and employer and union representatives. Fearful of being “caught in a slip-up” and wary of the “technicalities of the law” they chose to speak through legal counsel, who in turn aware of the record spoke “for the record”. Objections and preliminary skirmishes far removed from the labour relations problem became the model of behaviour. All of this led the Board further from the original vision of the Board as a forum for labour relations principals – employees, employers and unions – not a court or forum for lawyers. It prolonged proceedings and allowed parties to delay – the tool that can unhinge a situation to advantage.

The Board was aware of these adverse effects from its own experience. It also began to receive complaints across the country. Some parties volunteered to forego recording hearings to avoid expense to the Board and make the proceedings less formal. Others, including their counsel, made representations to abolish recording to avoid delays in judicial review proceedings. The Rules of the Federal Court allow withholding grounds for review until the record is filed with the Court. Where a transcript is added by Court direction that prolongs the time when a party may not know the grounds for review of a decision in its favour. At the same time, the Board was aware that on judicial review proceedings, transcripts were being asked for by affluent parties and not by others. This was occurring in the case of counsel and parties in areas, such as Ontario or British Columbia, where on similar proceedings from provincial labour relations boards there was no concern that proceedings were not recorded. In 1977 and 1978 the Board was actively discussing the merits of continuing recording and discussing the practice with some provincial labour relations boards. On occasions when the Board acted on short notice, such as when there was an alleged illegal work stoppage or on occasions where recording was not available because of technical problems in the hotel or hall where a hearing was being held, or winter weather delayed arrival of equipment, the Board was impressed by the less technical and more problem solving attitude of the parties and their counsel. Neither affluent nor small union or employer nor counsel acting for them on these occasions argued the absence of recording adversely affected them. The Board was coming to the conclusion that the perceived benefits of recording were outweighed by its detrimental effects on Board proceedings and its emerging role as a broadly mandated labour relations problem solver. …

. . .

Thus in the fall of 1979, [following the decision in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation (1979), 79 CLLC 26 14,029 (S.C.C.)] the Board could give ascendance to its objective of creating a better climate for labour relations problem solving at its hearing by discontinuing recording and avoiding the formality and regard for form over substance that accompanied recording. In so doing it knew it would please some communities which had advocated this approach and probably find disfavour in others. But this is a labour relations board not a labour court and our wish is to fulfil the objectives of the Code by bringing practical solutions to labour relations problems not merely by one gatepost in a long avenue of litigation. For the same reasons we have decided not to allow one party to have recording facilities at a hearing. To do so will reintroduce, on a selected basis, the atmosphere we seek to eliminate by discontinuing recording and act contrary to the purposes we seek to achieve. Although we see and our experience has shown us little advantage during the conduct of the hearing, a recording may be of some advantage afterward. Otherwise why would a party want it? That advantage could be in written propaganda surrounding a dispute, or to play edited versions of the proceedings on radio or television, or to prepare future witnesses where there has been an exclusion of witnesses or adjournment, or for other reasons within the imagination of parties. The Board will not allow its proceedings and mediative efforts to be open to this potential for compromise.

A more recent Ontario Labour Relations Board case has accepted the premise that recording leads to more formal and less expeditious proceedings:

Moreover, a uniform practice of verbatim recordings of Board proceedings would introduce an unnecessary and unhelpful degree of formality to the proceedings. Labour tribunals have not adopted the formality of the judicial system in a number of respects. That decision is grounded on the premise that labour tribunals are intended to fulfil a different mandate. The relative informality of labour tribunal proceedings has increased accessibility and provided the flexibility needed to facilitate dispute resolution through voluntary settlements even in the context of adjudication.

In a recent case before Public Service Labour Relations Board, a party to the proceeding insisted on taping the hearing. The complainant is reported to have said: “The only reason I want to record it is to actually get a fair hearing … I know that what goes in isn’t necessarily reflective of what comes out. And I wanted to address that issue.” He is challenging the constitutionality of the Board’s standard practice of not allowing the recording of proceedings. The Board will be issuing its decision on his challenge soon.

In a recent case involving the dismissal of a University of Ottawa professor, the beginning of the proceeding was videotaped with the agreement of all parties. After the first day of the hearing (opening statements and procedural matters), the employer raised concerns about the manner in which the taping was done, alleging that it was “distractive and disruptive”. Some of the video shot at the hearing has ended up on YouTube (here is one example).

In an interim decision, the arbitrator stated that the proceeding was not a Royal Commission or an academic conference – it was simply a matter involving an employer-employee relationship. The parties stated that they did not need audio or video recording to assist in managing the hearing. The arbitrator stated that he did not need any recordings to assist him. He concluded that the taping of the proceedings would “serve no purpose in the efficient running of this arbitration case.” He did agree that taping of the hearing would enhance media reporting, but that media reporting was not “paramount”. In addition, public recording of the hearing would defeat the order excluding witnesses.

In his decision, the arbitrator refers to the video clip of the opening statement that had been posted on the professor’s blog, entitled “Natural Justice as Foreign Concept…” Although not specifically addressed, it is likely that the editing of the clip and the pejorative title of the entry may have convinced the arbitrator that taping – even of opening statements – might turn the hearing into a circus.

In one Alberta decision, a judge of the Queen’s Bench felt that by refusing to allow an applicant to record a proceeding, the impression was created that the tribunal had something to hide. He went further and said that even if the tribunal had nothing to hide, “the appearance of injustice or arbitrariness is evident.” The judge went on to observe that he failed to understand how preventing recording of a proceeding “intimidates or compromises” the tribunal’s informal processes. In the end, however, the judge agreed that there was no legal requirement for the tribunal to allow taping.

Some tribunals do allow parties to record hearings using their own equipment at their own expense, with the consent of the presiding tribunal member or members. For example, the Human Rights Tribunal of Ontario practice note on recording provides that if recording is allowed, a copy of any recording or transcription must be provided to the other party and the Tribunal. The practice note also states that the recording or transcript does not form part of the Tribunal’s record of proceeding. However, if a party (with consent of the presiding member) uses a court reporter who produces a transcript, that transcript must be provided to all parties and the tribunal – and that transcript will normally be considered to be a part of the record of proceedings.

Where tribunals allow recording of proceedings with the permission of the presiding member or members, a variety of factors can be considered in granting such a request. In some cases, recording of a proceeding may be required as part of the duty of accommodation, if a participant to the proceeding is not able to take notes. In other cases a recording may be considered the equivalent of a note taker for a self-represented party (who is not able to take notes while giving testimony, for example). In other instances, tribunals have allowed for the recording of proceedings where the hearing is expected to be lengthy and/or to be conducted over a lengthy period of time. In some cases, the complexity of evidence may warrant taping, simply because note taking would be too complicated or too slow.

There are some situations where conditions will be placed on the taping of proceedings – especially if the tribunal is not convinced that the party seeking to record will not abuse the privilege.

In D.F. v. Children’s Aid Society of Hamilton 2010 HRTO 1234 the applicant stated that he wanted to retain a court reporter for the following reasons:

• to educate his children about how the respondents destroyed his family;

• to advise the media how the respondents conduct themselves;

• to inform the Ministry of Community and Social Services of the proceedings in order to prompt the government to alter legislation;

• to inform the Multiple Sclerosis Society of Ontario of how the respondents treat persons with multiple sclerosis;

• to assist the applicant in writing a book about these proceedings.

The adjudicator did not think that any of these reasons justified the use of a court reporter. After expressing concern about an abuse of process and the use of the Tribunal’s process for collateral purposes, the applicant’s request to retain a court reporter was granted, subject to the following undertaking:

1. No portion of the court reporter’s recording to be played back at the hearing; and

2. No portion of the court reporter’s recording to be played to any person who is not a party or a representative in the proceeding.

The debate about the recording of proceedings will continue. However, all adjudicators would likely agree that the adjudicator and/or the tribunal must be clear on the ground rules. What should guide the decision on recording is its underlying purpose and how it will assist in a fair, efficient and just hearing.