Court orders disclosure of unredacted documents in TD wrongful dismissal case
It’s a balancing act.
So says Jonquille Pak, founder of JPAK Employment Lawyers, in describing how employers should handle confidentiality or anonymity during workplace investigations.
“It's about balancing the privacy rights of the individuals involved — who came forward believing that this is going to be confidential — versus the right of the employee in question, who's being accused of wrongdoing, [so] that person's right to essentially review and respond… to the allegations.”
And a recent case involving TD is “really a warning to employers,” she says, or at least a reminder that when it comes to harassment and investigation policies, employees should know “to the extent that we can safeguard that confidential information, we will do so on a need-to-know basis only.”
Not confidential: unredacted versions of TD documents
The Ontario Superior Court of Justice ruled that the Toronto-Dominion Bank (TD) had to produce unredacted versions of key documents in a wrongful dismissal lawsuit filed by former employee Gordon Jarvis.
The court rejected TD’s argument that the redacted information should remain confidential to protect the identities of complainants and other individuals involved.
The case revolved around Jarvis's dismissal, which TD claimed was for cause, citing complaints from other employees and an internal investigation report. Jarvis requested unredacted versions of these documents, arguing that he needed full disclosure to properly challenge the allegations.
In the July 5 ruling, associate justice Karen Jolley emphasized that documents incorporated by reference into a pleading must be produced in their entirety, unless the party seeking redaction can prove both the irrelevance of the redacted material and the potential for considerable harm if disclosed.
TD, however, did not provide sufficient evidence to meet this burden.
“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,” wrote Jolley, citing previous rulings such as Rath v Tanzanian Gold and McGee v London Life Insurance Company Limited.
The court further stated that while the complainants may have expected confidentiality, this expectation does not shield the communications from disclosure, especially when the employer relies on these complaints to justify a dismissal for cause.
PIPEDA does not prevent disclosure of documents: court
The judge also noted the importance of fairness in litigation.
“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,” Jolley stated.
The ruling also clarified that the Personal Information Protection and Electronic Documents Act (PIPEDA) does not prevent the disclosure of these documents in court proceedings, as subsection 7(3) permits disclosure without consent where necessary to comply with court rules.
In conclusion, the court ordered TD to produce the unredacted complaints, whistleblower complaint, and investigation report, stating that the public interest in the correct outcome of the litigation outweighs the interest in protecting the identities of the complainants
It didn't seem like there were any ongoing concerns of reprisal or threats of violence that would have warranted hiding or concealing the identity of the complainants at that point in time, says Pak.
“Ultimately, the employer terminated for cause based in part on these allegations of wrongdoing, and so the employer can't then come forward and say, ‘We're going to hide the identity of these individuals and not allow you to be able to know and properly respond as part of the just cause allegations.’”
Individual’s right to respond
When an employee is accused of wrongdoing, there's essentially the due process concerns and being able to test that evidence, says Pak.
“In cases like this, often in harassment complaints, it's very difficult to do that without knowing the complainants involved and the ‘who, what, where, when, what happened?’ [and] ‘What am I being accused of?’
“So, the courts are grappling with that in terms of the rights of individuals to come forward with whistleblower complaints, against the right of the respondent to be able to really know and test the allegations against them.”
In some cases, as part of a workplace investigation or if someone is fired for cause and then pursues a legal claim, they will generally have a right to review all of the relevant investigation records, the employer may have an obligation to share certain information, she says.
“It doesn't mean that they get to see everything that may be submitted by a complainant, but certainly enough information for them to know and respond to the allegations against them as part of that due process.”
Is an investigation the best approach?
There’s been a growing number of workplace investigations, says Fiona McFarlane, lawyer at KSW Lawyers in Vancouver, citing Ontario’s new rules around the issue.
“It's a quick ‘go-to’ for a lot of employers. It may or may not be the right step, because sometimes if it's not done correctly, it creates more rumours in a workplace — too many people find out about something, so everybody's jumping to conclusions about things and not really knowing what's going on — so, it actually causes more disharmony in the workplace, rather than resolves something.”
One of the questions McFarlane says she often asks employers is: What is the purpose of this workplace investigation and report?
“Is it to help sort out if discipline is necessary? Is it to help find facts, because you just don't know and it may lead to discipline, including termination?... Is it the only thing you're going to rely on for termination?”
In this case, it seems like TD relied on a report when they didn't necessarily have to, she says.
“I always ask: ‘Is litigation contemplated, or is this going to be what gets the person fired? And I then caution to say, ‘As a consequence, you may have employees that wish to be confidential, but if there is litigation, it won't be confidential.’”
Privacy: Responding to allegations
The courts are balancing out the privacy interests and the potential harm to the individuals, whether it's reputational or highly sensitive information that might be embarrassing to certain witnesses or to the employer, or commercial information that they don't want out in the public domain, says Pak.
“It’s still a relevant consideration to the extent the company is not willing to share it, the courts are not dismissing it outright, but they're still weighing that as against the right of the litigant, the right of the individual to know and be able to respond to the allegations in order to address and test the cause allegations against them.”
At the end of the day, it’s about the importance of fair and due process, says Pak.
“There's a general obligation of disclosure through a court process that an employer, and this goes both ways, that a party to litigation has an obligation to produce all relevant documents — they don't get to pick and choose what they want to withhold.”
Privacy: competing interests
Many employers are struggling with privacy law and what it means, and understanding how privacy overlaps with document disclosure in a court proceeding, says McFarlane.
“There's a competing interest here. The employer was trying to tie all of their ‘We can't give you employee-related information’ to the privacy act, when court disclosure works with privacy, but.... can override privacy law.”
There are several privileges that attach to documents prepared and related to litigation, she says.
“The basic principle is you need to have a cone of silence between you and your lawyer… to be able to have a frank discussion so that you can get the right legal advice from your lawyer. So that's very sacrosanct. It's very much about making sure that our legal system works properly, and parts of that include documents that might be privileged under, say, litigation.”
However, privilege is also fluid, and there is such a thing as informal privilege which is occasionally applied in workplace investigations, says McFarlane.
“When we're in a civil action like this at the Ontario's court, those protections that we have in the charter just don't apply the same way.”
Takeaway for HR: Don’t promise anonymity
This recent case involving TD serves as a good reminder that employers shouldn’t necessarily give the impression to employees who make formal complaints, about someone’s behaviour or misconduct, that no one's going to see their comments or know about them, says Pak.
“I think, more cautiously, employers should be reminding individuals that it's on a need-to-know basis.”
Ideally, employers should tell people they can keep their complaint confidential up to a certain point — such as somebody initiating court proceedings or a subpoena because of criminal proceedings, says McFarlane.
“My practice has always been, as a workplace investigator to say, ‘I am keeping this confidential. At a certain point, it may not be confidential,’” she says, citing an employer’s obligations.
“I'm always qualifying that, and I often do give examples, especially if people are quite concerned.”
In addition, having robust policies that talk about retaliation are quite important when you're doing workplace investigations, says McFarlane.
And to encourage people to come forward with their complaints, a carrot is better than a stick, she says.
“The carrot… whether it's the internal workplace investigator, if the organization's large enough, or an external one, like myself, is ‘We're here to help try and find out what went on. So. Just find out facts and then to make it better for everybody.’
“By saying and putting a framing like that around it, you're more likely to get buy-in. Like ‘We're here to make the workplace better.’”
Termination without cause
Of course, in this case, TD decided to pursue a for-cause termination – but was that the wisest route to take?
As the court mentions, if the employer really wanted to protect anonymity, it could have ended Jarvis’ employment without cause, says Pak.
In that case, “the allegations of wrongdoing at that point in time are essentially moot from a legal perspective, because it's no longer relevant — they decided to terminate without cause, and so that individual would be eligible for a package.”
McFarlane has often had conversations with employers where cause could have been alleged but she advises that the cost of going that route in court will outweigh providing a severance package.
That’s especially true as the courts, in recent years, have made it that much harder for employers to allege just cause, while many arbitrators prefer progressive discipline before termination, such as suspensions or docking pay, for unionized employees, she says.
“I’m always giving [employers] the pros and cons of a severance package: ‘Now it may not be really what you want to stomach, but it'll cost you less than five years of litigation for just cause.’”
