Identity of Anonymous Complainants and Whistleblowers May Sometimes Need to Be Disclosed: ONSC

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.

Report of Workplace Harassment Investigator Shielded by Qualified Privilege

Is the report of an investigator hired to investigate allegations of workplace harassment shielded by the doctrine of qualified privilege?

In Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86 (CanLII), the Court of Appeal for Ontario confirmed that it is.

Ontario Labour Relations Board Orders Employer to Turn Over Workplace Investigator’s Entire Report to Ministry Inspector

Does an “inspector” appointed by the Ontario Ministry of Labour pursuant to the provisions of Ontario’s Occupational Health and Safety Act have the right to receive and review the entire, unredacted copy of an independent workplace harassment investigator’s report?

In Wal-Mart Canada Logistics ULC v Gail Stewart, 2020 CanLII 2070 (ON LRB), the Ontario Labour Relations Board held that she does.

Labour Board Refuses to Appoint Alternate Workplace Harassment Investigator

Can a worker complaining of workplace harassment who pre-emptively refuses to participate in the resulting investigation because she believes the investigator is unsuitable, ask the Ontario Labour Relations Board to appoint an investigator of the Board’s choosing instead?

In Erin MacKenzie v Orkestra SCS Inc., 2023 CanLII 13891 (ON LRB), the OLRB refused to appoint its own investigator.

Lawyers Owe No Duty to Complainants When Acting as Workplace Investigator: ONSC

Does a lawyer acting as a workplace investigator owe a duty of care to the complainant in the workplace harassment case?

In Mezikhovych v. Kokosis, 2022 ONSC 6480, Justice Howard Leibovich of the Ontario Superior Court of Justice held, on a motion for summary judgement, that they do not.

Divisional Court Finds Ottawa City Council Displayed Reasonable Apprehension of Bias Against Councillor Rick Chiarelli with Respect to Complaints to Integrity Commissioner

In the period September to November 2019, six complaints were filed against Ottawa City Councillor Richard Chiarelli with the Integrity Commissioner for the City of Ottawa. The Commissioner investigated and then prepared one report in respect to three of the complaints, which were similar. The Commissioner filed the Report with Ottawa City Council on July 9, 2020. City Council considered the Report on July 15, 2020, accepted its conclusions that Councillor Chiarelli had engaged in acts of misconduct in respect to the three complaints, and imposed the maximum available penalty: suspending Councillor Chiarelli’s salary for 270 days in the aggregate. City Council also adopted a resolution calling upon Councillor Chiarelli to resign from City Council.

Councillor Chiarelli applied to the Ontario Divisional Court for judicial review of the proceedings below. He argued that the Commissioner lacked jurisdiction to investigate the complaints, showed bias against him, and denied the Councillor procedural fairness. He argued that City Council exhibited bias against him. He sought various remedies, including orders quashing the findings and sanctions against him and orders prohibiting the respondents from taking further steps against him respecting the complaints.

In its decision released December 22, 2021, Chiarelli v. Ottawa (City of), 2021 ONSC 8256 (CanLII), the Divisional Court (Morawetz C.J.O.S.C.J., D.L. Corbett and Ryan Bell JJ.):

1. Dismissed the application as against the Commissioner, with costs payable by Councillor Chiarelli to the Commissioner fixed on a partial indemnity basis at $40,000, inclusive, payable within thirty days;
2. Granted the application as against the City of Ottawa;
3. Quashed the sanction decision of City Council, with costs payable by the City of Ottawa to Councillor Chiarelli fixed at 50% of partial indemnity costs, in the amount of $20,000, inclusive, payable within ten days of the date on which Councillor Chiarelli pays the $40,000 in costs he owes to the Commissioner; and
4. Imposed a sanction on Councillor Chiarelli of suspension of salary for 270 days in the aggregate.

Aggravated Damages Awarded for Heightened Frustration and Anxiety After Employer Fails to Investigate Workplace Harassment Allegations

Does the failure to respond to a request for a workplace harassment investigation warrant an award of aggravated damages, where the employee is later terminated for complaining about such harassment?

In Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (CanLII), the Honourable Justice Lorne Sossin of the Ontario Superior Court of Justice found that it does.

Bill 132... Picking Up Where Bill 168 Left Off?

Will the recently proposed changes to the Ontario Occupational Health and Safety Act finally bring about the workplace violence and harassment protections that so many believed would be implemented as a result of “Bill 168?” It’s possible.

For years I have been critical of the actual effects of the changes to the law brought about by Bill 168. Heralded by many at the time as a necessary change to the law, the experience of the interpretation and implementation of those changes has been grossly underwhelming.

Now the Ontario government is proposing further changes to the law by way of Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. The Bill passed first reading in the Legislative Assembly of Ontario on October 27, 2015.

A reading of the proposed amendments to the law leaves one with cautious optimism that perhaps change will finally come about.

Termination After Being Made the Subject of Workplace Investigation may Entitle Employee to Moral Damages

If an employee is made the prime suspect in a workplace investigation but is found to be not responsible for the harm that was the subject of the investigation, can the employer nonetheless terminate the employee’s employment on a without cause basis with impunity?

In refusing to grant summary judgment fixing the applicable notice period and dismissing the plaintiff employee’s claims for moral and punitive damages in a termination without cause case, the Honourable Justice Margaret Eberhard in the case of Brownson v. Honda of Canada Mfg., 2013 ONSC 896, leave to appeal refused 2013 ONSC 6974, held that the answer may be that no, the employer cannot terminate the employee’s employment on a without cause basis with impunity.