Identity of Anonymous Complainants and Whistleblowers May Sometimes Need to Be Disclosed: ONSC

If an employer alleges cause for termination and in support of such allegation it relies on the result of an investigation, then must the employer disclose the identities of the persons who complained about the employee? Does the answer change if the complainants were “whistleblowers”, who were permitted to make anonymous complaints and who were promised confidentiality?

In Jarvis v The Toronto-Dominion Bank, 2024 CanLII 62260 (ON SC), Associate Justice Karen E Jolley held that in the circumstances of this case, “the public interest in the correct outcome of the litigation outweighs any interest in protecting the identity of the complainants and other employees who were interviewed or referenced in the complaints and the investigation report.”

Associate Justice Jolley also commented that, “a promise of confidentiality does not protect the communication from disclosure.” Adding, “in some workplace-related scenarios, confidentiality is not something an employer can or should promise.”

What could go wrong in a world where the law not only requires employers to investigate incidents and complaints of workplace harassment, but to also inform the parties in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation? (See Occupational Health and Safety Act at section 32.0.7)

And what of this comment from the court, “An employer that intends to rely on complaints made to it about another employee to support a termination for cause will need to think carefully before assuring complainants that their complaints can and will be kept confidential.” Does that not somewhat contradict the statutory obligation at paragraph (d) of subsection (2) of section 32.0.6 of OHSA, which provides that, the program developed and maintained by an employer to implement its policy with respect to workplace harassment shall “set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law.”

Surely, the knowledge that the complainant’s identity, or at least identifying information, might ultimately need to be disclosed to the subject of the complaint will not have a chilling effect on persons making complaints.

Diagnosable Psychological Injury Not Required for Award of Aggravated Damages: ONCA

Can a ‘little white lie’ about the reason for an employee’s termination of employment result in an award of aggravated damages? What if the employee is unable to demonstrate a diagnosable psychological injury?

In Krmpotic v. Thunder Bay Electronics Limited, 2024 ONCA 332, the Court of Appeal for Ontario held that mental distress is a broad concept; it includes a diagnosable psychological condition arising from the manner of dismissal but is not limited to that. In the Court of Appeal’s assessment, “There is a spectrum along which a person can suffer mental distress as a result of the manner of dismissal.”

It just got considerably easier for employees to obtain aggravated damages from the manner of dismissal.

Meritless Implication that Former Employee was Involved in Murder Results in $100,000 in Aggravated and Punitive Damages

Can an employee be awarded aggravated damages for his employer’s bad behaviour if that bad behaviour precedes his termination?

While for a long time the prevailing wisdom was that aggravated and punitive damages could only be awarded for behaviour “during the course of dismissal”- which are the words used by the Supreme Court of Canada in Wallace- recent case law seems to suggest that such timing may not be necessary.

For example, in Koshman v. Controlex Corporation, 2023 ONSC 7045, the Honourable Justice Charles T. Hackland of the Ontario Superior Court of Justice held that the employer’s bad behaviour in the two months preceding an employee’s summary dismissal could substantiate an award of aggravated damages.

And, if that wasn’t enough of a hook to get you to keep reading, what if I mentioned that the employer’s poor behaviour included its telling clients that it believed that the former employee may be implicated in murdering the company’s founder?

New Client Policy Results in Frustration of Employment

If you are an employer in the service industry, and your largest client introduces a new rule or policy that imposes new requirements on your employees, and if one of your employees refuses to comply with that new rule or policy, has the employee’s contract of employment been “frustrated” or must the employer allege that it has “cause” for termination?

In Croke v. VuPoint System Ltd, 2024 ONCA 354 (CanLII), the Court of Appeal for Ontario upheld a decision in which it was found that an employee’s refusal to comply with his employer’s client’s rule requiring proof of vaccination against Covid-19 was a frustration of contract.

This is case about Covid-19 vaccination, which is not about Covid-19.

Employers Do Not Have the Right to Terminate Employees "At Any Time"

Do Ontario employers have the right to terminate an employee’s employment “at any time” and in their “sole discretion”?

In Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029, the Honourable Madam Justice H. M Pierce of the Ontario Superior Court of Justice sitting at Thunder Bay held that they do not.