In early July 2024, the Toronto-Dominion Bank was ordered to produce an unredacted workplace investigation report, and the related complaints, in a wrongful dismissal claim.
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At issue in Jarvis v The Toronto-Dominion Bank, 2024 CanLII 62260 (ON SC) was whether participants interviewed as part of a workplace investigation should be afforded confidentiality when the workplace investigation became relevant in a legal proceeding.
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In this decision, the Toronto-Dominion Bank argued they had cause to fire Mr. Jarvis because of the findings of a workplace investigation, and the public interest and privacy required the names of the participants in the workplace investigation to remain confidential. The judge didn’t agree and held that:

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• Confidential information from an employee connected to their employment is not protected from disclosure in a court proceeding because the public interest in the proper administration of justice outweighs the public interest in upholding claims of confidentiality and privilege.
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• Privacy law is not a bar to disclosure in a court proceeding because such disclosure is permitted by the applicable law.

In light of this decision, and a May 2024 decision in a BC medical negligence claim, Homan v Nemanishen, 2024 BCSC 735 (CanLII), that confirms privilege is waived when documents are referenced in pleadings, here are some key takeaways for employers and workplace investigators:
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1. Don’t promise confidentiality if the facts of the termination are likely to end in front of a judge or arbitrator
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   While it doesn’t happen often, employers should be prepared to have their workplace investigation reports seen by a judge or arbitrator if they choose to rely on the report when terminating an employee.  Since the Court in Jarvis says that workplace investigation reports aren’t to be treated differently from the employment contract, or other relevant employment relationship documents, it is important to inform workplace investigation participants that if the subject matter of the investigation leads to legal proceeding there is the possibility that their information will not remain confidential.  
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   Similarly, the court in Homan confirms that relying on solicitor client privilege because a lawyer has been engaged as the workplace investigator will be difficult since choosing to rely on the workplace investigation report in legal proceedings will be considered a waiver of solicitor client privilege.  
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2. Privacy law is important however disclosure in court proceedings is more important
   
   In Jarvis, the employer sought to protect the names of the participants through arguments about the application of the Personal Information Protection and Electronic Documents Act, however the court was unpersuaded since the act allows disclosure to the court of personal information without the knowledge or consent of the employe in order to comply with rules of court relating to the production of records. While employers should always be aware of the information they are collecting about their employees and under what circumstances privacy law allows them to share it, it is important to remember that employers aren’t allowed to use privacy law as a shield when there are legal proceedings.
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3. Employers have a choice about how they terminate an employee
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   In both Jarvis and Homan, a choice was made to rely on documents that contained confidential and privileged information to justify actions taken.  That choice meant the contents of the documents needed to be produced to the court so the could could determine if the actions were justified. An employer can avoid this choice by weighing the desire to terminate for cause with the costs of a wrongful dismissal litigation, including the the costs of the workplace investigation report being made public.
   
   Workplace investigations seldom contain “gotcha” findings of fact so employers should consider other options like progressive discipline when conduct breaches harassment and discrimination policies.
   
   If you are an employer who needs a workplace investigation or is considering terminating an employee because of the findings of a workplace investigation consider contacting a trust legal advisor, like the lawyers at KSW, to help evaluate the legal risks of the options available to you.

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