Central Okanagan Public Schools has come up short again in a third attempt to investigate the secret recordings made in three meetings by a union employee facing disciplinary action.
In response to a complaint from the school district that the recordings breached the privacy rights of the other participants in those conversations, the Tribunal of Human Rights dismissed the application, a decision upheld on a tribunal appeal.
Appealed further to the B.C. Supreme Court, Justice David Crerar upheld the tribunal decisions, stating he did not find the tribunal’s decision constituted an error in law.
A discrimination complaint was originally filed by staff IT technician Michelle Noël, who alleged the school district and CUPE, local 3523 had discriminated against her based on mental disability, sex and family status, in contravention of the Human Rights Code.
The issue arose after Noël, a field service technician in the information technology department, declared she had secretly recorded three meetings she had with the school district without their knowledge or consent in her original complaint proceeding.
Noël stated she recorded the meetings for the purpose of proving human rights and privacy violations, something she had been attempting to prove over a period of several months to no avail.
She submitted her previous complaints were ignored and the accuracy of her reports was regularly disputed.
The school district sought permission to investigate the recordings to determine the scope of any privacy breach to determine if Noël engaged in any misconduct and to impose any appropriate disciplinary measures for her actions.
In his decision, Crerar noted “evidentiary frailties” in the school district’s case.
“The board did not file copies of the transcripts of the recording. It did not explain who the other participants were in the meeting…without the evidentiary base, the Tribunal member was unable to assess the seriousness of the potential privacy breach alleged by the school board in its application,” stated Crerar.
“That assessment would involve a consideration of the persons whose privacy interests were purportedly violated, as well as the actual words recorded. Did Ms. Noël record a banal conversation, or a person discussing something profoundly private? One cannot access a privacy breach in a vacuum.”
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