No Secrets Here: Ontario Court Warns Employers Not to Promise Confidentiality

In a recent decision, Jarvis v Toronto-Dominion Bank, 2024 ONSC 62260, the Ontario Superior Court of Justice (“the Court”) ordered the defendant to disclose a workplace investigator’s report to the plaintiff. The Court’s decision is consistent with precedent, as courts across Canada have consistently held that the results of internal investigations are not presumptively shielded from disclosure.

The plaintiff, Mr. Jarvis, is currently suing the defendant, Toronto-Dominion Bank (“the Bank”), for wrongful dismissal. The Bank dismissed Mr. Jarvis for cause after conducting an internal investigation into four complaints. Three of the complaints were made by other employees, while the fourth was made by way of the Bank’s whistleblower process.

The Bank referred to the complaints and the investigator’s report in its statement of defence, which prompted Mr. Jarvis to request copies of all five documents. The Bank produced the documents but redacted the complainants’ names and other identifying information. Mr. Jarvis then brought a motion to compel production of the unredacted documents.

In a brief decision, the Court ordered production. It began by holding that the documents are relevant, because any document that is referred to in a pleading is deemed relevant “by operation of law.” Once a document has been deemed relevant, the party in possession of the document may not redact portions of the document that it believes to be irrelevant. The deemed relevance extends to the document as a whole.

However, the Court has the discretion to permit redaction, so long as the party resisting full disclosure can establish 1) that the redacted portions are irrelevant, and 2) that full disclosure “could cause considerable harm to the producing party or would infringe public interests deserving of protection.”

While the Court accepted that the complainants had an expectation of confidentiality, the Bank was never in a position to guarantee confidentiality and should not have purported to do so. Mr. Jarvis seeks to establish that the Bank did not have cause to dismiss him, and must therefore have an opportunity to respond to the allegations against him. An employer must “think carefully before assuring complainants that their complaints can and will be kept confidential.”

Moreover, the Court was not persuaded that the complainants would face reprisal in the event that their identities became known to Mr. Jarvis. The Bank did not lead any specific evidence in support of this claim, and Mr. Jarvis was dismissed in 2020.

None of the above is new law, but it does serve as a helpful reminder that neither an employer nor an investigator retained by an employer can offer an unqualified guarantee of confidentiality. This is true even where the investigator is a lawyer, as not all communications from lawyers to their clients are protected by solicitor-client privilege, and it is for a court to decide whether an investigator’s report constitutes or includes privileged legal advice that is shielded from disclosure. That is to say, the mere existence of a solicitor-client retainer agreement is not sufficient.