Jarvis v. The Toronto-Dominion Bank, 2024 ONSC 3853, highlights the delicate balance between protecting an employee’s right to a fair trial and preserving the confidentiality promised to complainants during workplace investigations. Associate Justice Jolley ruled that fairness must prevail in this balancing act, ordering the defendant to disclose the unredacted complaints and investigation reports that formed the basis for the plaintiff's termination for cause.
Case Background
The plaintiff, Gordon Jarvis, brought a wrongful dismissal action against his former employer, TD Bank. The Bank argued that it had just cause for terminating Mr. Jarvis, relying on its investigation into three employee complaints regarding his conduct. Mr. Jarvis then requested access to these complaints, along with the original whistleblower complaint and the full investigation report, which were referenced in the Statement of Defence.
TD Bank complied with the request but redacted the names and identifying information about the employees involved, since it had promised them anonymity during the investigation process. Dissatisfied with this outcome, Mr. Jarvis filed a motion compelling the Bank to produce the unredacted documents.
Fairness Trumps Confidentiality
In deciding this case, Associate Justice Jolley first confirmed the long-standing principle that once a document forms part of a pleading – such as the complaints and investigation report in this case – it becomes relevant and must be disclosed in full. However, the Court retains discretion to permit redactions if:
- Full disclosure could cause harm to the producing party; and
- The redactions serve no purpose in resolving the issues before the Court.
TD Bank failed to prove either condition. First, it did not provide unredacted versions of the documents, leaving the Court unable to assess whether the redactions served any purpose. Second, the Court found that even if the redactions were considered irrelevant, TD Bank had not demonstrated that disclosure would cause significant harm.
Her Honour then applied the Wigmore test for qualified privilege, which states:
- The communications must originate in a confidence that they will not be disclosed;
- Confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;
- The relationship must be one which in the opinion of the community ought to be sedulously fostered; and
- The harm to the relationship caused by disclosure must be greater than the benefit gained for the correct disposal of litigation.
While Associate Justice Jolley acknowledged that the complainants had been promised confidentiality, she concluded that once TD Bank relied on their complaints to justify termination for cause, these communications became relevant to the case. Under rule 31.06(2), this could require disclosing the complainants' names and addresses since they might possess knowledge of relevant transactions or occurrences.
TD Bank raised concerns that disclosure could cause harm to the complainants, as they hesitated to come forward due to fear of reprisal. The Court found these concerns to be minimal. Four years had passed since the complaints were made, and Mr. Jarvis had already been terminated. In addition, there was no evidence to suggest that the complainants continue to fear reprisals.
The Bank also argued that disclosure would harm the trust necessary for employees to report misconduct. Her Honour explained that the Bank could have avoided this situation by terminating Mr. Jarvis without cause. By choosing to terminate for cause, TD Bank made the complaints a pivotal issue in the litigation, and fairness required full disclosure. It would be unjust for Mr. Jarvis not to be fully aware of the case he had to meet.
The Court ultimately ruled that TD Bank had to disclose the unredacted complaints and investigation report. Justice Jolley emphasized that “the public interest in the correct outcome of the litigation outweighs any interest in protecting the identity of the complainants”.
Conclusion & Implications
The Jarvis decision serves as a crucial reminder for employers to “think carefully before assuring complainants that their complaints can and will be kept confidential,” especially if those complaints will be used to justify a termination for cause. Instead of promising absolute confidentiality, employers should clearly communicate to employees involved in investigations that their identity may not be preserved in the event of litigation.
The absence of guaranteed confidentiality can deter employees from reporting misconduct. If this becomes a growing concern in the workplace, employers might consider terminating an employee without cause, rather than for cause. This approach could help avoid situations where sensitive information must be disclosed in legal proceedings.
On the other hand, for employees who have been terminated for cause as a result of complaints, the message is clear: if you challenge your dismissal in Court, you have the right to know the identities of the complainants and the details of the accusations against you.
About the author
Tiana Terrigno is an associate at Woolgar VanWiechen Cosgriffe Ducoffe LLP in Toronto. Her practice focuses on commercial litigation and employment law. She spoke about the Jarvis decision at the October 10, 2024 edition of OBA’s Keeping Up with the Case Law series.
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