Employee Must Name Names of Other Whistleblowers in Law Suit About Toxic Work Environment
Employees in a toxic work environment will sometimes share information with each other in confidence while avoiding a formal complaint to the employer out of fear of reprisal. But in a law suit, an employee may have to reveal names to the employer.
Disclosure
Parties to a law suit must exchange all relevant information before trial. In Ontario, this includes disclosure of the names and addresses of “persons who might reasonably be expected to have knowledge of transactions or occurrences at issue” in the law suit.
In one recent case, a dismissed employee was ordered to disclose to her employer the names of coworkers who had relayed information to her in confidence.
The employee had sued her former employer, alleging that she was fired in reprisal for challenging her employer to address a toxic and inappropriate work environment. She alleged that her employer had acted in bad faith by failing to conduct an independent investigation of various harassment complaints. Part of her claim was supported by reference to certain statements she alleged were made by one of the employer’s executives at a presentation given after her dismissal. She had learned about the presentation from a former colleague who reported to her what had been said.
When the employer asked for the name of her coworker in the legal proceedings, the employee refused to answer on the basis that her source was confidential. Her coworker had asked that she not reveal their identity. The employer sought a court order requiring the employee to answer.
Privilege
The court was satisfied that the information about the presentation was relevant to the legal dispute, and the coworker’s identity should be presumptively disclosed as a person with knowledge of the “occurrence” of the presentation.
Information which would normally have to be disclosed may still be withheld, if the information is “privileged.” Information is privileged if it falls within a recognized class of protected communications or if it meets the following criteria:
First, the communication must originate in a confidence.
Second, the confidence must be essential to the relationship in which the communication arises.
Third, the relationship must be one which should be “sedulously fostered” in the public good.
Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.
The court agreed that the source’s request for anonymity strongly suggested the communication was made in confidence with the expectation that the listener would respect that confidence as an essential aspect of their relationship as former coworkers.
But the court was not satisfied that the relationship leading to the communication was one that should be “sedulously fostered in the public good” because the employee had acknowledged that her coworker had spoken to her in breach of her coworker’s own duties of confidentiality owed to the employer.
Two examples of relationships of confidence that should be “sedulously fostered” are those between, 1) a victim of sexual abuse and her psychiatrist, and, 2) between a journalist and a confidential source. The court reasoned that these are relationships which each serve a greater societal purpose, being the treatment of psychological trauma and effective investigative journalism. By contrast, a source of information who breaches their own duty of confidentiality to assist in a private dispute “is not contributing to the public good and does not warrant similar protection.”
As a matter of trial fairness, defendants have a right to know and test the evidence relied upon by plaintiffs. The court took the view that this entitlement in the administration of justice outweighed the employee’s “purely personal” concern to protect her source’s identity.
The court therefore ordered the employee to reveal the identity of her coworker.
This case serves as a reminder that our rules of court favour disclosure. Maintaining privilege over confidential information is an exception only available in some circumstances where a public interest is engaged.
Employees should be cautious about making promises they can’t keep. If an employee in a law suit intends to rely on information given by a coworker in confidence, the court may order the coworker’s identity disclosed. By the same token, employees should be careful about sharing information with others. A promise to keep information confidential may not stand up in the face of a court order.
