There is a common misconception amongst employers and employees that all whistleblower complaints will always remain anonymous. This has never been the case in law, and the recent decision in Jarvis v The Toronto-Dominion Bank, 2024 CanLII 62260 has made this clear.

Jarvis v The Toronto Dominion Bank 2024

In this case, Mr. Jarvis sued the Toronto Dominion Bank (“TD Bank”) for wrongful dismissal.  TD Bank argued they had cause to terminate Mr. Jarvis, relying on its investigation into three complaints made by other employees regarding Mr. Jarvis’ conduct. Mr. Jarvis requested to view the complaints and TD Bank provided redacted versions of them, which removed the names and identifying information of the complainants. At issue in this decision was whether TD Bank should be required to produce the unredacted documents.

The Court confirmed that documents referred to in pleadings are not to be redacted as the entire document is deemed relevant.[1] The Court determined that ensuring fairness and the proper administration of justice requires full disclosure, allowing the plaintiff a complete chance to address the allegations forming the basis of his termination.[2] The Court has discretion to permit redaction if disclosure would cause “considerable harm” and serve no purpose in resolving the issues. However, the onus of establishing both considerable harm and irrelevance rests on the party seeking to avoid full disclosure.

Key Takeaway

If an employer chooses to rely on the results of a workplace investigation or complaint when terminating an employee for cause, they should be prepared to have the entire report disclosed publicly, including the complainant’s information. If, however, an employer is not prepared to risk that the results of an investigation or complaint becomes public, it appears (in light of the case law) that the only way to ensure strict confidentiality would be to terminate without cause and with a severance package.

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.