The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An ex-Family Guardian executive, who is alleging that the insurer’s actions helped cause her unborn baby’s death, has lost the battle to have a covert recording of her meeting with the firm’s president admitted as evidence.

Justice Loren Klein, in an April 25, 2022, verdict, ruled that Alana Major’s “clandestine” taping of her meeting with Glen Ritchie did not fall under the Interception of Communications Act “exceptions” that permit the details of private conversations - obtained via the use of a ”listening device” - to be published or communicated publicly.

While finding that this did not make the recording “inadmissible” by itself, the Supreme Court judge added: “In the exercise of my discretion, I would exclude the material on grounds of unfairness and the possible prejudicial effect.” He noted that numerous legal cases had warned of the “inherent danger and unfairness” that can occur from relying on evidence where one side is unaware they are being surveilled or taped.

“Not only are undisclosed recordings susceptible to manipulation by the recording party, but the court cannot be assured that what is adduced represents accurately the full conversation, or just the portion or snippets prejudicial to the other party,” Justice Klein wrote in justifying his decision.

Referring to the recording of Mrs Major’s July 31, 2019, meeting with Mr Ritchie specifically, he added that the tape - which was 21 minutes long - “abruptly trails-off in mid-sentence”. Justice Klein concluded: “To permit reliance on the recording would be tantamount to the court condoning covert recordings, and the disclosure of private conversations at the manipulation of a party to the conversation, thereby giving its imprimatur to such conduct.

“Although the Interception of Communications Act reflects the ‘one-party consent’ approach to recording a private conversation, it attempts to strike a balance by imposing strict controls on when such recordings may be disclosed or relied on as evidence.

“The misuse of these provisions can create great unfairness and prejudice to the unknowing party, and may even raise constitutional issues going to possible violations of privacy. It is not a practice to which the court should grant its indulgence.”

As a result, he ruled that both the recording and a transcript of what was said cannot be used as evidence during the full Supreme Court trial, which was due to have been held at the end of April 2022. Given that both Mrs Major and Mr Ritchie had referred to the meeting and what was discussed in their statements, Justice Klein said both sides would have the opportunity to cross-examine each other on what happened.

Mrs Major is suing the BISX-listed insurer for alleged “negligence and breach of statutory duty” over how it handled her request to work from home due to the difficult pregnancy that she was enduring. Justice Klein’s judgment revealed that she lost the unborn child that same night after the meeting with Mr Ritchie.

“The litigation context is a claim by an insurance executive against the defendant company which employed her, in which she alleges negligence and breach of statutory duty in the way in which the company responded to her request to work from home during a difficult pregnancy in early 2019,” Justice Klein recorded. 

“She claims the actions of the defendant contributed to the intrauterine death of the child. The meeting which is the subject of the audio recording in question was one of several meetings and other engagements with senior management to discuss options for accommodating the plaintiff’s request to work from home.

“This was based on medical advice which the plaintiff received from her primary obstetrician after experiencing complications during the pregnancy. The meeting took place on the July 31, 2019. As events turned out, the plaintiff tragically experienced the death of the child later that same evening.”

Mrs Major was said to have been advised by her husband, Terrell Karson Major, to record the meeting with Mr Ritchie. She argued “that she recorded the meeting for her personal use because she feared that her state of mind might not have recalled the contents of the meeting, which she thought was ‘crucially important to her and her family’.

“She says that the recording is relevant and has probative value for her claims, in that it demonstrates that at the meeting the defendant demonstrated little or no regard for her health and welfare,” Justice Klein added. He said Mrs Major subsequently had “a long period of absence from the company”, and it did not appear that she ever returned to work for it.

Justice Klein said “there is no dispute” that the meeting was recorded without Mr Ritchie’s knowledge and consent. A court stenographer had transcribed the conversation, and Mrs Major and her attorney, Lady Sharon Wilson QC, had sought to have it admitted as evidence. Not surprisingly, Family Guardian, represented by Robert Adams QC, objected and sought to bar its use.

Lady Wilson sought to argue that the Interception of Communications Act did not forbid the recording of a private conversation by one of the parties involved. She asserted that it fell under the Act’s “exceptions” that permit wider disclosure and publication, while the law also the contents to be disclosed by someone giving evidence if this had been brought to their attention.

“Therefore, it is argued that a mental health psychologist whom the plaintiff attended in the aftermath of the incident, and to whom she disclosed either the recording or the substance of the conversation, should be able to give evidence of it,” Justice Klein said of the position taken by Lady Wilson.

However, Mr Adams argued that the only “exception” which the meeting’s recording could fall under was one that was necessary for “the protection of the lawful interest of the plaintiff”. And Family Guardian’s attorney rejected the notion that it was covered by this.

Backing Mr Adams’ arguments, Justice Klein rejected “the notion that the psychologist to whom evidence of the conversation was communicated had any interest in the private conversation to justify divulging it to him”. And, as a result, the meeting’s recording did not fall within the “exceptions” granted by the Interception of Communications Act for wider disclosure and publication.

The judge also agreed with Mr Adams that the Act was not intended to allow for evidence to be admissible when one side is seeking to obtain evidence through a third party based on consent. “Were it otherwise, a party could always orchestrate the use of evidence derived from a listening device obtained or disclosed in direct contravention of the Act by simply purporting to give consent to a third party,” Justice Klein said.

“This would drive a horse-and-carriage through the very mischief which the Act intends to address - the unjustified invasion of privacy that could be occasioned by the unauthorised use of surveillance and listening devices, and prohibiting or restricting the use of any evidence obtained as a result of such conduct.”