Confidentiality: Not Guaranteed in Canadian Workplace Investigations

Employers often erroneously advise people who are interviewed during a workplace investigation that confidentiality will be preserved, and the identity of a complainant and witnesses may not be shared. A recent Ontario court decision confirms the approach under Canadian law: there is often no such thing as anonymity for complainants and witnesses, and parties to litigation have a right to know the case against them. This almost invariably means that they will be able to know the identity of complainants and relevant witnesses.

In Jarvis v The Toronto-Dominion Bank, 2024 ONSC 3853, the Ontario Superior Court ruled that TD Bank had to disclose the names and other identifying information of employees who made what they understood to be anonymous complaints against Gordon Jarvis. These complaints had been the basis for TD’s defence to wrongful dismissal claim which Jarvis had filed after he was fired for cause.

This decision is noteworthy because the Court ordered the disclosure of the identities of the complainants even though TD had promised the complainants that their identities would remain confidential. Jarvis had been terminated after TD had received anonymous complaints, which were investigated. He then sued, claiming wrongful dismissal.

In the course of the litigation, TD produced copies of the complaints, with the names and other identifying information redacted. The Court allowed a motion by Jarvis which sought unredacted versions of the documents which would disclose the identities of the relevant employees.

The Court began its analysis by noting that, as a core legal principle, when a party refers to a document as part of its pleadings, the entire document is deemed to be relevant. As a result, that party cannot then redact portions of that document on the basis of that party’s own theory or position that the redacted portions are not relevant.

Once a document is deemed relevant in this manner, it can only be redacted if the Court is convinced that both: 1) the redacted sections of the documents are indeed irrelevant, and 2) that the disclosure of the redacted sections may cause harm or not be in the public interest.

On the question of relevance, the Court found that TD had not provided any compelling reasons to believe that the redactions were irrelevant. The identity of anyone who had filed a complaint or was a witness to relevant allegations will almost certainly go to the core of the assertion that there is cause to terminate the employee who was investigated.

The Court also said that even if the irrelevance of the redacted sections had been established, full disclosure of the documents would still be appropriate because TD had failed to prove the second requirement. There was no evidence that disclosing the redacted sections “could cause considerable harm to the producing party or would infringe public interests deserving of protection.” Proving that second requirement requires showing that the public interests that might be protected outweigh the public interest in the proper administration of justice. In a case where someone is alleged to have engaged in misconduct, the public interest will likely be strongly in favour of disclosure. As a result, the Court held that an employer’s promise of confidentiality to its employees is not more important that the interests of an employee terminated for cause knowing the identities of those who made the allegations against him.

Takeaways for Employers

The decision in Jarvis v The Toronto-Dominion Bank is important because it highlights the fact that there is a strong possibility that a court will not uphold an employer’s promise of confidentiality to its employees in the context of workplace investigations. In the words of the Court: “An employer that intends to rely on complaints made 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.” Employers should closely review their investigation procedures and related policies and adjust their approach accordingly.