Tribunal blocks SD 23 attempt to obtain recordings made by employee who made human rights complaint

SD 23 denied recordings

A member of the BC Human Rights Tribunal has denied an application by the Central Okanagan School District.

SD 23 wanted to be given copies of recordings made by an employee who filed a human rights complaint against the Board of Education and CUPE local 3523, her union.

Michelle Noël, who is employed as a field service technician in the IT department, alleges she was discriminated against on several grounds that were not fully explained in the recent decision.

The school district filed an application seeking an order to use audio recordings that she made during three meetings. The information was disclosed during the human rights tribunal proceedings related to the complaint.

In its application, the district stated its purpose is "to conduct an investigation into the complainant’s conduct in making these surreptitious recordings." It alleges the recordings were made without the knowledge or consent of the participants.

SD 23 also said that it wants to use the recordings to determine if it has met all its obligations as an employer under the Freedom of Information and Protection of Privacy Act.

Noël argued the school district’s application failed to establish there is a public interest that outweighs privacy interests amid civil litigation.

Noël also pointed out that the recordings do not raise matters of trade secrets, or public safety of sensitive information.

The tribunal member who ruled on the application agreed.

In her written decision, Marlene Tyshynksi wrote, “I am not persuaded to grant the order requested….an order allowing the use of documents disclosed under the rules for another purpose will only be granted in exceptional circumstances.”

She said that the school district has not persuaded her the order is for a public interest that outweighs the values that underlie maintaining document confidentiality. One of the reasons is that the focus of the school district’s purpose in seeking the order appears to be to determine whether the employee should be disciplined.

“The school district is not seeking to recover property but seeks to investigate Ms. Noël’s recordings of the meeting. Further the school district did not file copies of the transcripts of the recordings, nor did it explain who the other participants were or the nature of the personal information that may have been disclosed about them,” wrote Tushynski in denying the application.

She adds that she has no opinion on the correctness of Ms. Noël’s conduct. “The admissibility of the records at a hearing of her complaint will be determined by the tribunal member adjudicating the hearing.”

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