Ontario Court Orders Employee Complaints to be Produced Unredacted

The case of Jarvis v The Toronto-Dominion Bank, 2023 ONSC 3853 has upheld that where documents are incorporated by reference in a pleading, they must be unredacted unless the redaction is permitted by the court. This means names of complainants, other employees mentioned, and other private information may be revealed. 

This issue arose when TD submitted complaints made by an employee about Jarvis which led to, or partially caused, the termination of his employment. The complaints were submitted as evidence with the name of the whistleblower redacted along with any other identifying information and any other named employees. 

The law states that when documents are incorporated by reference into the pleadings, it can not be redacted as the assumption is that everything in the document is deemed relevant to the operation of law. One party, or their representation, can not unilaterally decide that a piece of information is irrelevant. 

For a redaction to be permissible, it must pass a test under the common law. The court has discretion to permit a redaction where disclosure of the full documents could cause considerable harm and serve no legitimate purpose in resolving the issues. Since the assumption is that all information is relevant, the party seeking the redaction must prove the redacted information is irrelevant and that disclosure of that information could cause harm to the producing party or would infringe on public interests deserving of protection.

The party seeking the redaction argued that confidence of an employee in the employer-employee relationship is in the public interest and deserving of protection. The Court disagreed. It found that in this case, the employee-employer relationship does not give rise to particularly strong public interest case when it is weighed against the administration of justice. 

The nature of the complaints is not public; however, the dispute is around Jarvis being dismissed for cause. This is a serious allegation to make in employment law as it can have extreme effects on notice and severance requirements. Because of this, the court stated that fairness requires the plaintiff be given an opportunity to test the information that may have been provided to TD by the whistleblower and the only way to make this possible is to reveal who the whistleblower was. 

If you are an employer and have concerns about your privacy and the privacy of your employees, or if you plan on terminating an employee, contact our workplace privacy and wrongful dismissal lawyers to learn about your rights and obligations. 

If you are an employee who has been terminated, or you are concerned about coming forward in your workplace, contact us about your options going forward. 

Disclaimer: The materials above are for general information purposes only. This is not legal advice. This is not specific to any one company. This does not suggest any improper conduct on the part of a specific employer.