Judge looks at papers

A former employee of TD Bank is entitled to know the identities of former colleagues who made the complaints that led to his dismissal, an Ontario court says.

In a case involving a lawsuit for alleged wrongful dismissal, the Ontario Superior Court of Justice ruled that the bank must turn over unredacted copies of complaints from other employees, a whistleblower complaint and an investigative report that it relied on when terminating a former employee for cause.

According to the court’s decision, when the former employee sought copies of the complaints and a report that were referenced in the bank’s defence to the wrongful dismissal suit, the bank provided copies that had been redacted to hide the names of the complainants and others. The former employee then sought unredacted copies of the materials.

The court sided with the former employee, saying that the onus was on the bank to prove both that the redactions weren’t relevant to the case and that disclosing the redacted information could “cause considerable harm” to the bank, or to the public interest.

“Even if I were to accept that the redactions were irrelevant, I find that the defendant has not established that disclosure could cause considerable harm to the defendant or would infringe an interest deserving of protection,” the court said in its July 5 decision.

While the bank’s whistleblower process allows for anonymous complaints, and the whistleblower and other complainants expected confidentiality, the court said “a promise of confidentiality does not protect the communication from disclosure.”

“In some workplace-related scenarios, confidentiality is not something an employer can or should promise,” the court added.

In this case, the bank relied on its employees’ complaints, and its investigation into the complaints, to support an employee’s termination for cause, the court noted.

“That choice not only makes the complaints about the plaintiff relevant, it might also require the defendant to disclose the names and addresses of the complainants as persons who might reasonably be expected to have knowledge of transactions or occurrences in issue,” the court decision said.

If employers intend to rely on internal complaints to fire an employee for cause, “[they] will need to think carefully before assuring complainants that their complaints can and will be kept confidential,” the court said.

It would be “unfair for the terminated employee” to not receive full disclosure of the allegations against them and who made the allegations, the court also said, noting that the public interest in justice outweighs the public interest in protecting the identities of the complainants and others interviewed in the subsequent investigation.

The provincial court also refused to allow redactions of the names of other employees that are accused of wrongdoing in the complaints, saying, “Given the plaintiff’s allegation that ‘he was made the scapegoat for wrongs committed by his superiors’, I find the names of those others to be relevant and producible.”

Ultimately, the court ordered full disclosure of the complaints, the whistleblower complaint and the report on the investigation into those complaints, without any redactions.