Your NDA Will Not Protect Your HR Records: What Kachra v. OPSEU Pension Trust Means for Ontario Employers

On April 10, 2026, the Ontario Superior Court of Justice released a decision that should change how every Ontario HR leader thinks about exit packages, NDAs, and the records they keep on internal harassment complaints. In Kachra v. OPSEU Pension Trust, 2026 ONSC 2092, Associate Justice Karen Jolley granted a wrongful dismissal plaintiff leave to examine his former Chief Pension Officer and Head of HR for discovery — even though that executive is bound by a non-disclosure agreement the employer is refusing to waive. The decision was first reported in Canadian HR Reporter and Human Resources Director Canada.

The ruling is short on legal fireworks and long on practical consequence. It dismantles a comfortable assumption Ontario employers have leaned on for years: that an exit NDA, combined with a narrow definition of "relevant," can keep prior harassment complaints out of litigation. It cannot.

Key Takeaways

• An exit NDA does not stop a former HR executive from being examined for discovery. The Rules of Civil Procedure win.
• When a plaintiff alleges a pattern of harassment by a specific manager and an employer failure to respond, prior complaints against that manager are relevant. "Heavily redacted" production is not enough.
• Employers who maintain a narrow view of relevance and refuse to waive an NDA can be found to be constructively refusing to disclose. The court will fix the problem at their cost.
• HR functions need to assume that every harassment complaint they receive — formal, informal, walked-back, or settled — is potentially producible in a future lawsuit.

What Happened

Aly Kachra was Director of Investment Risk at OPSEU Pension Trust from April 2017 until his dismissal on January 9, 2020. He alleges his direct manager, identified as Mr. Hudacin, "berated him, retaliated against him, caused dysfunction in the team, and interfered with his ability to properly manage risk." He says he complained repeatedly to the company's HR business partner. He also escalated to Reg Swamy, then OPTrust's Chief Pension Officer and Head of Human Resources. According to Kachra, Swamy promised to raise the issue but no apparent steps were taken. Shortly after, Kachra says he was told to look for new employment, then terminated.

Kachra is suing for wrongful dismissal, $250,000 in moral damages for the bad-faith manner of his dismissal, and $500,000 in punitive damages for the employer's alleged failure to investigate and address his harassment complaints.

The procedural fight that produced this decision is the interesting part. On discovery, OPTrust's representative testified he was not aware of any complaints about Hudacin's workplace conduct. Kachra's counsel pushed back. An earlier order from Associate Justice Sam Rappos required OPTrust to produce any complaints about Hudacin between January 2018 and January 2020. OPTrust complied by producing exactly one "heavily redacted complaint" and asserting there were no others.

Then Kachra's counsel produced an email from Reg Swamy himself, sent more than a year earlier, in which Swamy told them he had spoken with OPTrust's lawyers, had "provided detailed information" about the matters in issue, and had "made handwritten notes of the relevant information." None of that information had ever made its way to Kachra.

Swamy was prepared to be examined. He was constrained by an NDA. OPTrust refused to waive it.

What the Court Held

Associate Justice Jolley granted leave under Rule 31.10 of the Ontario Rules of Civil Procedure to examine Swamy as a non-party. The reasons get straight to the point: there was reason to believe Swamy had information "relevant to a material issue in the action." OPTrust had not searched its records for the seven named complainants Kachra had identified. It had given no undertaking to question Swamy and share the answers. It had taken the position throughout that other complaints about Hudacin were not relevant. And it was refusing to waive the NDA that was preventing Swamy from speaking voluntarily.

That combination — a narrow view of relevance, an unenforced records search, and a refusal to waive the NDA — was found to be an actual or constructive refusal to obtain and disclose the information. The court ordered OPTrust to pay Kachra the all-inclusive sum of $20,000 in costs within 30 days.

The reasoning matters as much as the result. Justice Jolley framed non-party discovery in Rule 31.10 against the broader purposes of discovery itself: helping parties understand and narrow issues, prepare for trial, and sometimes avoid trial altogether. OPTrust's argument — that Kachra should run further discovery, wait for refusals, and bring yet another motion — was rejected because the court considered it unlikely to yield evidence given OPTrust's entrenched position. As Canadian HR Reporter's analysis of the procedural ruling puts it, the NDA "meant that the plaintiff could not obtain the information directly from Swamy outside a court-authorized examination" — so the court authorized one.

Why This Matters for Ontario Employers

The temptation, for an HR or general counsel reading this case, is to file it under "discovery procedure" and move on. That would be a mistake. The decision lands at the intersection of three trends that are reshaping Ontario harassment-investigation risk in 2026.

First, the courts are losing patience with employers who treat harassment complaints as a paper-trail problem. Norton Rose Fulbright's recent analysis of employer liability for failing to investigate has been clear: courts increasingly read inadequate investigation as evidence of bad-faith dismissal, which raises the moral-damages ceiling and lowers the punitive-damages threshold. Kachra is a signal that the courts will also actively help plaintiffs build the evidentiary record they need to prove that point.

Second, NDAs are getting weaker, not stronger. Ontario courts are increasingly skeptical of confidentiality clauses that operate to suppress evidence of workplace misconduct. The federal Bill C-65 framework and the broader public-policy push against silencing victims of harassment have shifted the centre of gravity. Hicks Morley's commentary on NDAs in workplace harassment matters flags how courts are now reading these agreements narrowly when they bump up against statutory or common-law duties. Kachra applies the same logic to civil discovery: the NDA exists, the court acknowledges it, and the court routes around it.

Third, "no one else complained" is a defence that no longer survives contact with discovery. The single redacted complaint OPTrust produced was, in retrospect, the worst possible production strategy. It told the court three things at once: there were complaints, the employer was hiding them, and the employer's narrow view of relevance was self-serving. Once the court was given Swamy's email about his prior conversation with counsel, the constructive-refusal finding was almost inevitable.

What to Do Now

This decision is operational. Ontario employers — especially mid-market and SMB clients without a deep in-house HR function — should treat it as a prompt to fix five things this quarter.

1. Audit your harassment-complaint records as if they will be produced under a court order. Every formal complaint. Every walked-back complaint. Every "informal conversation" that was actually a complaint. Every exit-interview reference. Search by alleged respondent, not just by complainant. If you cannot quickly answer "how many complaints have we had against this manager in the last three years," you are not ready for discovery. The Ontario Ministry of Labour's Code of Practice to Address Workplace Harassment sets baseline record-keeping expectations under section 32.0.7 of the OHSA — but the litigation standard is higher.

2. Stop relying on departure NDAs to manage harassment-complaint risk. They will not stop a court from ordering examination. They will not stop a former HR leader from being questioned. They may, in fact, signal to the court that there is something the employer wants suppressed. The 1205 view: NDAs in employment agreements should protect legitimate business confidentiality — trade secrets, customer data, financial information — and should explicitly carve out reporting and discovery in connection with harassment, discrimination, and workplace-safety matters. Sherrard Kuzz's guidance on the duty to investigate reinforces the principle: employers cannot contract out of their statutory duties under the OHSA.

3. Treat your investigation file as a litigation document from day one. Investigators should assume that their interview notes, scoping memos, and final report will be produced. Use a consistent file structure. Document the basis for any decision not to investigate or not to interview a witness. Preserve communications. The Williams HR Law analysis of Bidwai v. Ontario Teachers' Pension Plan Board makes the point: a procedurally defective investigation is itself a breach of the Human Rights Code. Defects show up under examination.

4. Build a "complaints-against-manager" register. A simple, access-controlled spreadsheet that lists, for every people-leader, every complaint received, the date, the disposition, and a pointer to the file. Update at intake. Review annually as part of the OHSA-mandated workplace harassment program review. In litigation, this document is either your best evidence of an active internal-responsibility system or — if it does not exist or has been left to atrophy — the evidence that the system was theatre.

5. Pressure-test the wording of your separation agreements. A well-drafted separation agreement, prepared with current Ontario law in mind, will not pretend to bind the former employee from cooperating with a tribunal, regulator, or court order. It will explicitly preserve the employer's right to be notified before testimony — but will not purport to forbid it. Gowling WLG's commentary on confidentiality clauses is a useful starting point.

Where 1205 Consulting Fits

1205 Consulting designs and audits workplace-harassment programs, intake processes, and investigation files for Ontario employers — and serves as external investigator on matters that carry reputational, regulatory, or litigation risk. The Kachra fact pattern is a recurring failure mode in our work: a senior people-leader receives a complaint, makes a verbal commitment to "look into it," takes no documented steps, and the complainant exits. Three years later, the documentary trail decides the case.

If your organization has not stress-tested its complaint records, NDA practice, and investigation files against the 2026 enforcement and litigation environment, book a call or learn more about our workplace investigations and HR services practices.

This article is not legal advice. Consult your legal counsel on specific matters. The operational lesson, though, is unambiguous: in Ontario, an NDA that purports to lock down what your former HR head can say about prior harassment complaints is not the protection you think it is. The court can — and will — order the examination anyway, at your cost.

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