How much does a party need to reveal during litigation? Surprisingly to some, the answer is “everything relevant”. Despite what movies and television suggest, in Canada we rarely see a “gotcha” moment where a secret document is revealed during trial which tips the balance of the case. Instead, each party to a matter must reveal all documents in their:
- possession,
- power, or
- control,
and at a relatively early stage in the litigation process.
However, not every document is the same. A document may include sensitive information unrelated to the matter under litigation, the disclosure of which would cause harm and not serve any purpose in resolving the issues under litigation. In that situation, the law states that the party may redact any sensitive information before producing the document to the other party.
How far this right to redact sensitive materials goes is context-specific and sometimes needs to be addressed by a court. The recent decision in Jarvis v The Toronto-Dominion Bank provides some clarity on what redactions a court will permit – and what information an employer needs to disclose.
The Facts
Mr. Jarvis was dismissed for cause after three anonymous complaints about his behaviour. The employer investigated these complaints and proceeded with the dismissal. In June 2021, after suing for wrongful dismissal, Mr. Jarvis sent a request to inspect:
- the complaints,
- the whistleblower complaint, and
- the investigation report.
Mr. Jarvis’ position was that he had been made a “scapegoat” for “wrongs committed by his superiors”.
The employer produced all these documents but redacted them first to remove the names and other identifying information concerning the complainants and other individuals. Mr. Jarvis brought a motion for production of the unredacted documents.
The Judgment
The employer argued that disclosing the unredacted documents could harm the complainants and damage the necessary trust between an employer and employee. The employer asserted that this trust permitted the workplace to function and allowed an employer to address unacceptable behaviour.
The Court noted that the complainants had been submitted four years prior to the motion, and that the employer had not produced any affidavit evidence that the complainants were in fear of reprisal for their actions in complaining about Mr. Jarvis.
The Court agreed that trust was important to the proper functioning of a workplace, but that this needed to be balanced with fairness to employees. The Court held that when faced with a complaint which justified a dismissal, an employer had two options. It could dismiss the employee without cause, in which case the complaint and complainants could remain confidential. Alternatively, if the employer chose to dismiss the employee for cause, it would be “unfair” to the dismissed employee not to know the case they have to meet by obtaining the disclosure of who made the allegations against them and what these allegations were.
The Court ordered that the employer produce the complaints, the whistleblower complaint and the investigation report in unredacted form.
Takeaways
In our practice as employment lawyers we are frequently asked whether an employer needs to produce an investigation report or any underlying complaints in the context of litigation. The decision in Jarvis provides a clear understanding of an employer’s obligations. Where the employer has dismissed an employee for cause, based on the outcome of an investigation and complaints, it must produce any materials related to the investigation. This will include the names of the complainants.
Conversely, where the employer has not dismissed the employee for cause, it has no obligation to produce unredacted materials, as its case will typically not rely on these documents. There may be an exception to this rule (unaddressed in Jarvis) where the employee alleges their dismissal was improper, such as for a breach of the Human Rights Code or something similar. Then, the employer may need to show that it had a reason to dismiss the employee, even though it proceeded to do so without cause.
Jarvis shows the importance of a thorough investigation and report, as these may be the pivotal parts of any ensuing litigation and may be the employer’s main defence against a claim of wrongful dismissal. This also shows why it is worth considering the logistics of how the investigation is conducted, and who conducts it.
Many people assume that retaining a lawyer to investigate a matter makes this “privileged” and therefore allows them to avoid having to produce the report or file. This is not the case; when a lawyer is engaged to act as fact-finder, that is not providing legal advice and not privileged. The optimal way to proceed is to retain the services of a lawyer, who will then engage an investigator. Your lawyer will review the outcome of the investigation and provide guidance on how to proceed. That way, the lawyer’s guidance and your communications with them remain privileged; ultimately, however, the investigator’s notes and reports may still have to be produced.
Finally, Jarvis is a reminder that you should never promise confidentiality. Complainants and witnesses can be assured that you will only disclose information to the extent you have to as part of the investigation or litigation, but you cannot promise confidentiality.
We assist both employers and employees in all aspects of the employment relationship, and would be happy to assist you whether you are an employee whose employment has been terminated, an employer who suspects an employee of misconduct, or someone drafting or in receipt of an employment agreement. Feel free to check out our FAQs and contact us for advice tailored to your situation.
