IIn Jarvis v The Toronto-Dominion Bank, the Ontario Superior Court of Justice (the “Court”) ordered the employer to disclose unredacted versions of investigation-related documents it relied on to support a for-cause dismissal.

Facts

An employee commenced wrongful dismissal litigation against its former employer following the termination of their employment. The defendant employer pleaded that the dismissal was for cause and relied upon its investigation into complaints made by other employees regarding the plaintiff employee’s conduct.

The employee requested to inspect the complaints from the employees, the whistleblower complaint, and the investigation report, as they had been referenced in the employer’s Statement of Defence. The employer complied and produced each requested document, but redacted the names and other identifying information regarding the complainants and other relevant individuals.

The employee filed a motion for the production of the unredacted documents. The employer argued that disclosure of the unredacted documents may cause harm to the complainants, and may also damage the trust needed between an employee and the employer for the employer to address unacceptable behaviour.

Decision

The Court reaffirmed that “documents incorporated by reference into a pleading […] are not to be redacted, as the entire document is deemed relevant by operation of law”. The Court noted that it would only permit a redaction where disclosure of the full document could cause considerable harm and serve no legitimate purpose in resolving the issues. To invoke the Court’s discretion to do so, the party seeking to avoid full disclosure must establish that the redactions:

• Are irrelevant (i.e., serve no legitimate purpose in resolving the issues); and
• If disclosed, could cause considerable harm to the producing party or would infringe public interests deserving of protection.

The Court noted that the employer did not provide evidence that the redacted information was irrelevant. However, even if the Court were to accept that the redactions were irrelevant, the employer had failed to establish that disclosure could cause considerable harm to the employer, or would infringe an interest deserving of protection.

The Court acknowledged that while the complainants and the whistleblower delivered their complaints with the expectation that they would remain confidential, an expectation or promise of confidentiality does not protect the communication from disclosure by court order. The Court stressed that “in some workplace-related scenarios, confidentiality is not something an employer can or should promise”. With respect to the circumstances in this case, the Court noted that “[a]n employer that intends to rely on complaints made to it about another employee to support a dismissal for cause will need to think carefully before assuring complainants that their complaints can and will be kept confidential”, as a court may require the employer to disclose information about the complaint and the complainants.

Addressing the employer’s argument that disclosure may cause harm to the complainants, the Court reasoned that while the complainants wrote that it was difficult for them to come forward, given their fear of reprisal, more than four years has passed since the complaints were made and the employee was dismissed. The employer gave no evidence to suggest that the complainants continued to fear reprisals.

Addressing the employer’s argument that disclosure may damage the trust needed between an employee and the employer for the employer to address unacceptable behaviour, the Court stated that while trust is important to the proper functioning of the workplace, an employer has a choice to keep the complaints and complainants confidential and dismiss an employee without cause, or rely on the complaints and dismiss that employee for cause.  If the employer chooses to dismiss an employee for cause, it would be unfair for the dismissed employee not to know the case he has to meet by obtaining disclosure of who made the allegations against him and what they were.

Ultimately, the Court found that the public interest in the correct outcome of litigation outweighs any interest in protecting the identity of the complainants and other employees who were interviewed or referenced in the complaints and the investigation report. Accordingly, the defendant was ordered to produce unredacted copies of the complaints, the whistleblower complaint and the investigation report.

Takeaways for Employers

Avoid Promising Absolute Confidentiality to Investigation Participants

While employers should make every effort to keep an investigation process as confidential as possible, employers should not promise absolute confidentiality to participants. Rather, employers should be transparent in informing participants that if the subject matter of the investigation escalates to a legal proceeding, the evidence they provide may not remain confidential, particularly if the information gathered in the course of the investigation is used to justify a dismissal for cause.

Be Strategic in Carrying Out Dismissals

Employers must carefully consider whether to dismiss an employee for cause based on complaints. If maintaining the confidentiality of the complaints, report, and other investigation-related documents is a significant concern, a dismissal without cause may be a more prudent approach to avoid the possibility of court-ordered disclosure.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.