Fishing or Fact-Finding? Reeling in the Limits of Disclosure

Workplace investigation reports do not automatically need to be disclosed to employees, but employers must always meet the requirements of procedural fairness. Recent decisions underscore that when an employer relies on an investigation report to support discipline or termination, the report will often need to be disclosed, particularly where it is arguably relevant to the issues in dispute. However, the scope of disclosure is not unlimited: adjudicators will tailor production to what is necessary and resist broad or unfocused requests that resemble fishing expeditions.

For employers, the key is to balance fairness with strategic discipline, ensuring employees understand the case against them while limiting disclosure to what is reasonably connected to the dispute.

The Evolving Approach to Disclosure

A comparison of two recent arbitration decisions illustrates how context and, critically, how a dispute is framed, can lead to different disclosure outcomes, even where the same legal principles apply. While both cases arise in the labour context, the principles governing workplace investigation reports apply equally across non-unionized workplaces.

Both decisions turn on the same core question: whether the requested materials are “arguably relevant” to the issues in dispute. Each also emphasizes the need to balance procedural fairness against the risk of overbroad disclosure requests. Where they differ is in how that test is applied.

In Federation of Teachers in Hebrew Schools v Anne & Max Tananebaum Community Hebrew Academy of Toronto, the arbitrator drew a clear distinction between the investigation report and the investigator’s underlying file. The employer had explicitly relied on the report in issuing discipline, creating a direct nexus between the report and the decision under challenge. On that basis, the arbitrator found the report itself to be clearly relevant and ordered its production, noting that fairness required the union to see the document underpinning the disciplinary decision. At the same time, the request for the investigator’s full file, including communications, was denied as overly broad and lacking sufficient foundation. The arbitrator characterized that aspect of the request as a fishing expedition, reinforcing that relevance must be grounded in the actual issues in dispute.

By contrast, Guelph Police Association Inc. v Guelph Police Services Board reflects a more expansive approach to disclosure, driven by a more detailed and fact-specific grievance. There, the arbitrator accepted that not only the investigation report but also the investigator’s underlying materials, such as interview notes and witness statements, were arguably relevant. The grievance contained specific allegations of harassment and discrimination, and the requested materials were directly connected to those claims. As a result, the arbitrator found a sufficient factual foundation to justify broader disclosure. However, even in this more permissive context, limits were imposed: requests for all correspondence or broadly defined categories of documents were still curtailed as vague and excessive.

The key distinction between the cases lies in the strength of the connection between the requested materials and the issues in dispute. In the first case, relevance was established for the report but not for the broader file; in the second, the detailed nature of the allegations supported extending relevance to the underlying evidence considered by the investigator. Put differently, Federation of Teachers reflects a narrower, decision-focused relevance analysis, while Guelph Police Association adopts a more evidence-focused approach where the pleadings justify it.

Key Takeaways

• Employers are not automatically required to provide investigation reports to employees.
• Procedural fairness remains the guiding principle and must be satisfied in every case.
• Disclosure obligations often hinge on whether the report is relied upon in decision-making, especially for discipline or termination.
• The key legal threshold is “arguable relevance” to the issues in dispute.
• If discipline is imposed based on the findings in the investigation report, the employer will likely have to provide the report to the subject employee.
• Decision-makers will resist overly broad requests that resemble “fishing expeditions.”
• Employers should align disclosure decisions with the nature of the dispute, not adopt a one-size-fits-all approach.

Final Thoughts

Workplace investigations sit at the intersection of fairness, risk management, and legal strategy. While there is no automatic right to an investigation report, employers must be prepared to disclose it where fairness demands, particularly when it forms the basis of disciplinary action. Employers should also be prepared for the possibility that additional materials related to the investigation may need to be disclosed in some circumstances as well.

Ultimately, the question is not whether disclosure is required, but how much disclosure is justified in light of the issues in dispute.

Our Workplace Investigations team supports employers at every stage - from conducting independent, defensible investigations to advising on disclosure, discipline, and risk mitigation. We also provide training and guidance to help organizations build fair, effective investigation processes. Contact Tracy Zimmer or Leanne Monsma in Edmonton, or Steve Eichler in Calgary for more information.