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Ontario court orders TD Bank to produce unredacted complaints, workplace investigation documents

by HR Law Canada

The Ontario Superior Court of Justice has ordered the Toronto-Dominion Bank (TD) to produce unredacted versions of employee complaints, a whistleblower complaint, and an investigation report in a wrongful dismissal lawsuit filed by former employee.

The court ruled that TD had not demonstrated sufficient grounds to justify the redactions.

The case evolves around the worker’s claim that he was wrongfully dismissed from his position. TD countered that the worker, G.J., was terminated for cause based on three employee complaints and an internal investigation.

The crux of the case

G.J. requested access to the complaints and the investigation report referenced in TD’s statement of defence. Although TD provided the documents, they were heavily redacted to remove the names and identifying details of the complainants and other involved individuals. G.J. subsequently filed a motion for the production of the unredacted documents.

Associate Justice Jolley highlighted established legal precedents, noting that documents incorporated by reference into a pleading are deemed relevant and should not be redacted.

TD’s justifications and court’s rebuttal

TD argued that the redactions were necessary to protect the confidentiality of the complainants and to prevent potential harm. The bank asserted that the complaints were made with an expectation of confidentiality, especially given the anonymous nature of the whistleblower process. However, the court found these arguments insufficient.

“The law is clear that documents incorporated by reference into a pleading… are not to be redacted, as the entire document is deemed relevant by operation of law,” wrote Associate Justice Jolley in the decision. “

The judge also noted that TD’s responding affidavit did not provide evidence that the redacted information was irrelevant or that its disclosure would cause considerable harm.

Balancing confidentiality and fairness

While acknowledging the importance of confidentiality in maintaining trust within the workplace, the court emphasized that fairness in the legal process takes precedence.

“Fairness requires that the plaintiff be given an opportunity to test the information that may have been provided to [the investigator] by the [complainants],” the decision stated, quoting an earlier ruling in Robinson.

The court also referenced the Hacock v. Vaillancourt case, underscoring that the public interest in the proper administration of justice outweighs any potential harm caused by disclosing the identities of complainants.

Implications for employers

The ruling serves as a reminder to employers about the complexities of handling employee complaints and the potential legal implications of promising confidentiality.

“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,” the decision stated.

Associate Justice Jolley further clarified that the Personal Information Protection and Electronic Documents Act (PIPEDA) does not bar disclosure in this context, as compliance with court rules necessitates such disclosure.

Conclusion and next steps

In conclusion, the court ordered TD to produce the unredacted versions of the complaints, the whistleblower complaint, and the investigation report. The parties were given until August 9 to resolve the issue of costs, failing which the court will assume the matter has been settled.

For more information, see Jarvis v The Toronto-Dominion Bank, 2024 CanLII 62260 (ON SC).

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