If an employer alleges cause for termination and in support of such allegation it relies on the result of an investigation, then must the employer disclose the identities of the persons who complained about the employee? Does the answer change if the complainants were “whistleblowers”, who were permitted to make anonymous complaints and who were promised confidentiality?
In Jarvis v The Toronto-Dominion Bank, 2024 CanLII 62260 (ON SC), Associate Justice Karen E Jolley held that in the circumstances of this case, “the public interest in the correct outcome of the 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.”
Associate Justice Jolley also commented that, “a promise of confidentiality does not protect the communication from disclosure.” Adding, “in some workplace-related scenarios, confidentiality is not something an employer can or should promise.”
What could go wrong in a world where the law not only requires employers to investigate incidents and complaints of workplace harassment, but to also inform the parties in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation? (See Occupational Health and Safety Act at section 32.0.7)
And what of this comment from the court, “An employer that intends to rely on complaints made to it about another employee to support a termination for cause will need to think carefully before assuring complainants that their complaints can and will be kept confidential.” Does that not somewhat contradict the statutory obligation at paragraph (d) of subsection (2) of section 32.0.6 of OHSA, which provides that, the program developed and maintained by an employer to implement its policy with respect to workplace harassment shall “set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law.”
Surely, the knowledge that the complainant’s identity, or at least identifying information, might ultimately need to be disclosed to the subject of the complaint will not have a chilling effect on persons making complaints.
Facts
The facts underlying this decision are simple: The plaintiff, Jarvis, has sued the defendant, TD Bank, for wrongful dismissal. The Bank pleads that Jarvis was dismissed for cause, relying on its investigation into three complaints made by other employees about the plaintiff’s conduct.
As part of the wrongful dismissal case, Jarvis sent a request to inspect the complaints from TD employees, a “whistleblower” complaint and the investigator’s investigation report which were referenced in the statement of defence.
TD delivered each of the requested documents, but redacted them to remove the names and other identifying information concerning the complainants and other individuals mentioned.
Jarvis brought a motion before the court, seeking production of the unredacted documents.
Decision of the Ontario Superior Court
Associate Justice Jolley provided the following reasons for her decision that the Bank had to produce the whole of the documents at issue:
[4] The law is clear that documents incorporated by reference into a pleading, such as the ones in question, are not to be redacted, as the entire document is deemed relevant by operation of law. It is also impermissible to redact portions of a relevant document on the basis that those portions are not relevant.
[5] The court has discretion to permit a redaction where disclosure of the full documents could cause considerable harm and serve no legitimate purpose in resolving the issues. A party seeking to avoid full disclosure bears the onus of establishing both that the redactions are irrelevant (i.e., serve no legitimate purpose in resolving the issues) and that their disclosure could cause considerable harm to the producing party or would infringe public interests deserving of protection.
[6] The responding affidavit did not comment on the relevance of the redactions, other that to argue that it “appears to [the defendant’s deponent] that the plaintiff was able to identify the individuals” whose names were redacted. There is no evidence that this is correct or that it covers all of the redactions, including those individuals who were interviewed, as part of the investigation. The defendant did not attach the unredacted versions of the documents so that the court could assess the relevance of the redacted material. As such, I am not in a position to judge the relevance or irrelevance of the redactions.
[7] Even if I were to accept that the redactions were irrelevant, I find that the defendant has not established that disclosure could cause considerable harm to the defendant or would infringe an interest deserving of protection.
[8] The test to establish a qualified privilege against disclosure is set out in Wigmore on Evidence: (1) The communications must originate in a confidence that they will not be disclosed; (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) The relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
[9] I do not doubt that the complainants and the whistleblower delivered their complaints expecting them to remain confidential. The whistleblower used a process created by the defendant that specifically allowed complaints to be made anonymously. The fact that the information might later be disclosed by court order does not negate the fact that the communication was made with the expectation of confidentiality (A.M. v Ryan 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 at paragraph 24).
[10] But a promise of confidentiality does not protect the communication from disclosure (Robinson v London Life 2017 ONSC 5587 at paragraph 15 per Master Muir). Further, in some workplace-related scenarios, confidentiality is not something an employer can or should promise. In this case, the defendant has chosen to rely on the complaints made and the conclusion of their investigation into those complaints to support its for cause termination of the plaintiff. That choice not only makes the complaints about the plaintiff relevant, it might also require the defendant to disclose the names and addresses of the complainants as persons who might reasonably be expected to have knowledge of transactions or occurrences in issue, pursuant to rule 31.06(2). An employer that intends to rely on complaints made to it about another employee to support a termination for cause will need to think carefully before assuring complainants that their complaints can and will be kept confidential.
[11] The defendant argues that disclosure may cause harm to the complainants and may also damage the trust needed between an employee and the employer for a workplace to function and to allow an employer to address unacceptable behaviour. On the first issue, 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 plaintiff has been fired. There is no affidavit evidence to suggest that the complainants continue to fear reprisals.
[12] On the second issue, while trust is important to the proper functioning of the workplace, an employer has a choice to keep the complaints and complainants confidential and terminate an employee without cause or rely on the complaints and terminate that employee for cause. If it chooses to terminate an employee for cause, it would be unfair for the terminated employee not to know the case he has to meet by obtaining disclosure of who made the allegations against him and what they were.
[13] In considering the nature of the relationship, these complaints were made and the investigation done in the context of a workplace review. In my view, that workplace relationship does not give rise to a particularly strong public interest at stake in the litigation, to adopt the language of Master Muir in Robinson.
[14] The court in Hacock v Vaillancourt 1989 CanLII 5250 (B.C.C.A.) had this to say about the relationship to be fostered and the importance of confidentiality in the employment context:
[22] The appellant asserts again, as a matter of public policy, that the relation between employees and a municipality as their employer is so important that it ought to be assiduously fostered. Thus, when information is revealed about a fellow employee, if legal proceedings ensue the employer should not be compelled to disclose such communications.
[23] In this context, the appellant is not in any different position to any other employer. The head of the corporation will be concerned about the conduct of its employees in the course of carrying out their duties. The concept that an employee can go to his supervisor and complain about the activities of another employee with the result that the other employee may be jeopardized with his employer is not a basis for conferring on that other employee or the employer a right to suppress the communication. To encourage such a conclusion would be to unsettle the relationship among the employees and to afford an employee protection which is unnecessary if the employee speaks the truth. Nor will such a conclusion unreasonably impede investigations carried out by officials of the municipality into the conduct and activities of employees of the municipality.
[15] Those sentiments are equally applicable in this instance.
[16] In considering the Wigmore rules as guidelines, courts have noted that the “real test should be whether the public interest in the proper administration of justice outweighs in importance any public interests that might be protected by upholding the claim for privilege.” Even though the employer had promised the employees who provided statements that their comments would be treated in confidence and would be used for personnel purposes only, the court in Hacock concluded that “this is not the type of communication which should attract protection from disclosure upon the basis of public policy. The public interest in the proper administration of justice outweighs in importance any public interest that might be protected by upholding this claim (Hacock, supra at paragraph 24). The statements were ordered disclosed.
[17] As Master Muir noted in Robinson, “Fairness requires that the plaintiff be given an opportunity to test the information that may have been provided to [the investigator] by the [complainants]. The plaintiff has no other way of identifying the [complainants] other than through disclosure by [the employer] and production of [the investigator’s] file. Their evidence is relevant and important. [The employer] has pleaded very specific facts about the plaintiff's interaction with the [complainants] and comments he allegedly made about other LHSC employees. Fairness requires that the plaintiff be given a full opportunity to respond these allegations.” (supra, paragraph 18).
[18] This was also the conclusion of the court in Cadillac Fairview Corp. v Standard Parking of Canada Ltd. [2004] O.J. 37 when it ordered disclosure of the names of corporate whistleblowers in an investigation report, stating at paragraph 38: “In my view, in the circumstances of this case, the benefit gained in getting at the truth and correctly disposing of the litigation by disclosing the identities of the informants far outweighs the benefit to the interests served by protecting their identities from disclosure.”
[19] I am not satisfied that disclosure would cause considerable harm or would infringe public interests deserving of protection. Like Robinson, I find that in the circumstances of this action, the public interest in the correct outcome of the 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.
[20] I also find that the Personal Information Protection and Electronic Documents Act, SC 2000, c.5 is not a bar to disclosure, as subsection 7(3) permits disclosure without the knowledge or the consent of the individual where necessary to comply with the rules of the court.
[21] The defendant proposed in the alternative that the names of any other employee against whom an allegation of wrongdoing is made in the complaints be redacted. Given the plaintiff’s allegation that “he was made the scapegoat for wrongs committed by his superiors”, I find the names of those others to be relevant and producible.
Commentary
There is a lot to unpack here and not a lot of information from which to work.
First, Associate Justice Jolley is correct that documents specifically referenced in a pleading, as the investigation report is said to be, must be produced as part of the litigation.
But beyond that we get into issues of whether the court is second-guessing the conclusions of the investigator.
At paragraph 12 of her reasons for decision, Associate Justice Jolley writes, “If [an employer] chooses to terminate an employee for cause, it would be unfair for the terminated employee not to know the case he has to meet by obtaining disclosure of who made the allegations against him and what they were.” In support of such finding, Associate Justice Jolley invokes Associate Justice Muir in Robinson, who had earlier held that, “Fairness requires that the plaintiff be given a full opportunity to respond these allegations.”
In both statements the court is correct. Fairness demands that the employee be given a fair opportunity to respond the allegations made against him.
But that statement then begs the procedural questions of the timing to respond to the allegations and the amount of disclosure required before a response is to be given. The court in this case appears to be of the opinion that the employee was not afforded any opportunity to respond to the allegations before the decision to terminate his employment was taken. Now, that might be true, but we don’t know from the court’s reasons for decision what happened.
More importantly, the court appears to be suggesting that employers cannot control their investigation and decision-making processes. That comment, if overread, would contradict the entire statutory scheme created by Part III.0.1 of the Occupational Health and Safety Act.
It is at this point that I should observe that I, myself, am mixing several pieces of law. First, TD Bank, as a federally regulated employer is not subject to the Ontario’s Occupational Health and Safety Act, so the concerns I am about to raise here are misplaced. Second, there is no suggestion that the complaints against the plaintiff in this case have anything to do with workplace harassment or violence, so, again, even if the Bank was provincially regulated, then I could still be off base. Cool. As long as we’re on the same page that perhaps the court’s reasons in Jarvis should be read with caution, given what I am about to say. But, as we in the employment-law bar know, those kinds of limitations rarely happen.
For the sake of argument, let’s say that this case was about workplace harassment and that instead of a federally regulated employer, we had a provincially regulated employer, like a factory, or an office in the private sector. Should the result be different?
Recall that pursuant to Ontario’s Occupational Health and Safety Act employers are legally required to prepare a policy with respect to workplace violence and to prepare a policy with respect to workplace harassment. (OHSA, s 32.0.1)
Section 32.0.6 of OHSA then goes on to require that employers, in consultation with the committee or a health and safety representative, if any, develop and maintain a written program to implement the policy with respect to workplace harassment required under clause 32.0.1.
The program must, at the very least:
- (a) include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;
- (b) include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
- (c) set out how incidents or complaints of workplace harassment will be investigated and dealt with;
- (d) set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law;
- (e) set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation; and
- (f) include any prescribed elements.
One might think that the employer’s policy and program, if prepared in accordance with OHSA, would therefore become some sort of code, such that the court’s function in reviewing a decision taking pursuant to such code would be limited to judicial review for procedural fairness.
But that is not what the court’s decision in Jarvis appears to suggest. The court in Jarvis appears to suggest that, regardless of the policy or procedure implemented by the employer, if the employer wishes to allege cause for termination, then the court is entitled to conduct its own review of the facts and to reach its own decision. In this way the court goes beyond reviewing the decision of the employer for procedural fairness, ie ensuring that the employer had a policy and that its decision was properly taken in accordance with such policy, to reviewing the whole of the situation, regardless of procedural choices made by the employer.
But we’ve been down this path before.
In Nicholson v. Haldimand-Norfolk Regional Police Commissioners, 1978 CanLII 24 (SCC), [1979] 1 SCR 311, the Supreme Court of Canada commented on the duty of procedural fairness concerning workplace investigations resulting in termination of employment.
In that case, a majority of the Supreme Court said the following about such duty of procedural fairness:
In my opinion, the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing as the Board might determine, to respond. The Board itself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which it deemed relevant to its determination. Once it had the appellant’s response, it would be for the Board to decide on what action to take, without its decision being reviewable elsewhere, always premising good faith. Such a course provides fairness to the appellant, and it is fair as well to the Board’s right, as a public authority to decide, once it had the appellant’s response, whether a person in his position should be allowed to continue in office to the point where his right to procedural protection was enlarged. Status in office deserves this minimal protection, however brief the period for which the office is held.
But the Court in that case also adopted the reasoning of Lord Denning in the case of Selvarajan v. Race Relations Board where he said the following about the duty to act fairly:
The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only.
And before one think my referencing Lord Denning to be old, note that such words continue to be judicially referenced. See, e.g. Morabito v. British Columbia (Securities Commission), 2022 BCCA 279, at para 82.
My point, lest I have digressed too much, is that while employers have a duty to investigate complaints before taking decisions, and such investigation must be conducted in a way that affords procedural fairness, both the common law and the statutory law confirm that, “The investigating body is, however, the master of its own procedure.”
In my own assessment, if Mr. Jarvis wished to attack TD’s decision to terminate him for cause, then the focus of his inquiry was more properly on the steps taken by TD in choosing to terminate his employment. Once TD pleaded that it was relying on the investigator’s report, then the focus can shift to the reasonableness of TD’s decision to rely on the investigator’s report. To my mind, if the report is unintelligible, in so much that one could not understand from a reading of the report how the investigator reached his or her conclusion, then the plaintiff could successfully argue that TD was wrong to have relied on it. But, if the report reveals not only how the investigator’s decision was reached, but that the dismissed employee had the opportunity to know the complaints made against him and respond, then there may be no need to produce the underlying complaints.
Takeaways for Employers
The key takeaways for employers are these:
- Have a clear policy and program that explains how complaints will be received and investigated.
- Ensure that, as part of your documentation you explain that confidentiality cannot be guaranteed indefinitely.
- If you do receive a complaint or learn of a situation that requires an investigation, retain an experienced investigator who knows what he or she is doing.
For those looking for sample policies, etc, consider my Workplace Harassment Toolkit.
I have the skills and experience to guide you through the creation of a workplace harassment policy, program, investigation, or anything else your business or organization may need.
Takeaways for Employees
The takeaway for employees depends on what kind of employee you are- whether you’re a (potential) complainant or a respondent.
If you are a complainant, contemplating making a complaint, then the prudent course of action would be to recognize that notwithstanding what your employer may say to you about confidentiality or anonymity, a court may order your employer to produce to the person against whom you are thinking about complaining your name, home address, and contact information. Employees less than interested in having that happen, might want to speak with a lawyer about how to best protect their interests.
If you are, or were, a respondent to such a complaint and your employment has been or may be terminated, then you may be entitled to more information than your employer tells you. Depending on where you are in the process, you may wish to solicit independent advice as to how to respond to what your employer is asking or has done.
Contact Me
Regardless of which side of the issue on which you find yourself, I can assist.
Because:
Sean Bawden is Experience. At Work.
I am an experienced employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, which is based in Ottawa. I have appeared in courtrooms across Ontario from Stratford, to L’Orignal, to Thunder Bay.
For 2.5 years I was in-house legal counsel providing employment law advice to one of Canada’s largest corporations and appeared in labour courts and tribunals literally the world over.
I have also taught as a part-time professor at Algonquin College teaching Employment Law. I have previously also taught Trial Advocacy for Paralegals and Small Claims Court Practice.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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