An Employer’s Promise of Confidentiality May Not Protect Complaint or Investigation Documents from Disclosure in Court Proceedings
A recent decision from the Ontario Superior Court of Justice serves as a caution to employers that any promise they make – to employees, whistleblowers, or otherwise – to keep workplace complaints and investigations confidential may be overridden in the context of court proceedings. In Jarvis v The Toronto-Dominion Bank, 2024 ONSC 3853, Associate Justice Jolley ordered an employer to produce unredacted copies of workplace complaints and investigation materials (together, the “Investigation Documents”) in a wrongful dismissal action.
In the underlying litigation, the Defendant / Employer had pleaded that the Plaintiff / Former Employee had been dismissed for cause. In determining the Plaintiff had engaged in misconduct, the Employer considered and relied upon the results of its investigation into several workplace complaints. The complaints had been made by other employees and a whistleblower. In response to the Plaintiff’s request to inspect the Investigation Documents, the Defendant delivered redacted copies. The redacted copies removed the names and other identifying information regarding the complainants, the whistleblower, and other individuals mentioned in the documents. The Plaintiff succeeded in bringing a motion for the production of unredacted copies of the Investigation Documents.
In the Court’s decision, Associate Justice Jolley wrote, “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.” Citing McGee v London Life Insurance Company Limited, 2010 ONSC 1408, Associate Justice Jolley explained that 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.” The onus is on the party seeking to preclude disclosure to establish that disclosing the redacted content could cause considerable harm to the complainants or infringe an interest deserving of protection and that the redacted content is irrelevant to the issues in the proceedings.
The Employer’s position was that it was necessary to keep the redacted parts of the Investigation Documents confidential because disclosing them could cause considerable harm to the complainants. The Employer argued disclosure could damage the trust required in the employment relationship, and this was a public interest deserving of protection. The Employer further argued it had been difficult for the complainants to come forward, given their fear of reprisal.
The Court did not accept the Employer’s arguments. Associate Justice Jolley was not persuaded that disclosure could cause considerable harm to the complainants or infringe public interests deserving of protection. The Court found the Employer had failed to establish that the redacted parts of the Investigation Documents were irrelevant to the issues. Lastly, while the Employer’s affidavit evidence referenced a fear of reprisal when the complaints were made over four years earlier, there was no current affidavit evidence to suggest the complainants continued to fear reprisal.
Associate Justice Jolley acknowledged the complainants and whistleblower delivered their complaints with an expectation of confidentiality; however, Associate Justice Jolley also provided that “a promise of confidentiality does not protect the communication from disclosure.” In addition, it was established that disclosure could also be compelled under Rule 36.01(2) of the Rules of Civil Procedure, which permits a discovering party to obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action.
Associate Justice Jolley noted that fairness required the Plaintiff to be given an opportunity to test the information that may have been provided to the investigator by the complainants. After all, the Employer relied on this information to terminate the Plaintiff for cause. Without this disclosure, the Plaintiff could not properly defend themselves against the Employer’s allegations.
Finally, in weighing the competing public interests that were engaged in this case, Associate Justice Jolley concluded as follows: “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.” In other words, the proper administration of justice took precedence over the complainants’ and whistleblower’s reasonable expectations of confidentiality in relation to their complaints about the Plaintiff.
This decision serves as an important reminder to employers that their promise to keep workplace complaints confidential, including the identity of any complainant(s) or other relevant information, may not protect that complaint or any resulting investigation materials from disclosure in court. Whether these documents will remain confidential in the context of a court proceeding will depend on whether the employer can persuade the court that the redacted information is irrelevant to the issues in the case and that “the disclosure would cause considerable harm [to the complainants] or would infringe public interests deserving of protection.”
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