By Gil Zvulony, Toronto Defamation Lawyer

What are the legal repercussions when someone is the subject of a false and damaging statement in the workplace. Are there any special considerations that apply to the workplace?

In short, a defamatory statement is a statement made to a third party about an identifiable person that is both false and derogatory. Such statements are not uncommon in the workplace. Such statements might take the form of gossip around the watercooler, a complaint to management by a coworker, statements about workers amongst management, or even where an employer gives a “bad” reference about a former employee.

Plaintiff’s Onus

A defamation plaintiff needs to be able to establish three things, on a balance of probabilities, in order to make out a case for for a defamation judgment and award. They are:

1. that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
2. that the words in fact referred to the plaintiff; and
3. that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

If these elements are established on a balance of probabilities, falsity of the statement and damage flowing from the statement is presumed; but may be rebutted. Once these elements are established, the onus then shifts to a defendant to prove an affirmative defence.

Unionized Workplaces

An additional issue in the workplace arises when a workplace is unionized. If a defamatory statement is made in a unionized environment then a defamed worker may be prevented from suing for defamation because of the collective agreement.

Such was the case in De Montigny v Roy et al et al., 2018 ONSC 858 (CanLII), <http://canlii.ca/t/hqr2w>. In De Motigny a lawsuit by a unionized employee was tossed out of court due to the court’s lack of jurisdiction to adjudicate disputes that are governed by a collective agreement. At para 36 the Court held:

The substance of the defamation claim is statements made about the plaintiff by co-workers pursuant to their duty to report harassment under workplace policies.  The subject matter of the allegedly false statements by the co-workers is alleged harassing statements by the plaintiff about another co-worker.  The co-workers made the written statements to the employer at the request of the employer, for the employer’s investigation of the harassment.  The employer had a duty to investigate the harassment under the workplace policies.  The plaintiff’s employment was terminated, pursuant to the collective agreement and the “last chance” agreement, as a result of the plaintiff’s harassing statements.  The collective agreement provides a process to seek remedies for the dismissal and for harm caused by the statements, if shown to be false. The plaintiff availed herself of remedies available under the collective agreement for the termination (I address the issue of the outcome of the process under the collective agreement as it relates to jurisdiction further below).   This is a matter squarely covered by the collective agreement.  The proper forum is the labour relations regime.

As such, unionized workers should consider filing a grievance rather than a court action for any workplace defamation issues. The defences discussed below can be raised in response to a grievance (Such as was the case in Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2008 CanLII 70525 (ON GSB), <http://canlii.ca/t/224f2>).

Potential Defences

If a plaintiff is a able to meet its onus then it is open for a defendant to prove an affirmative defence. There are a number of well known defences to defamation actions, such as justification (truth), responsible communication, fair comment, an expired limitation period, qualified privilege, and absolute privilege. All of these defences may apply in the employment context but the most common defence in the employment context is that of qualified privilege.

Qualified Privilege

The defence of qualified privilege, when successful, allows a speaker to make untrue defamatory statements and yet is allowed to escape liability. Another way of thinking about qualified privilege is to think of it as a zone of immunity from libel law. It is a zone created by the law in order to ensure that people can speaking freely without the fear of a libel lawsuit. The public interest is served when people can speak freely about certain issues in certain contexts.

It is often said that the privilege attaches to the occasion upon which the communication is made, and not to the communication itself.  An often quoted statement from Lord Atkinson explained the defence in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334 as follows:

. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.  This reciprocity is essential.

A statement made on an occasion of privilege, (i.e. within the zone of immunity) will be protected while that very same statement made on a different occasion (i.e. outside the zone of immunity) will not be protected by qualified privilege.

For example, a bona fide complaint about a coworker to a human resources department that “my supervisor is sexually harassing me” will usually be protected by qualified privilege, while that exact statement published to the general public, i.e. on Facebook, will exceed the bounds of the privilege and therefore not be protected.

Examples of Qualified Privilege in the Employment Context

The courts have applied the defence of qualified privilege in numerous employment circumstances. Complaints about sexual harassment by coworkers have been found to be protected. In both the case of J.W. v. Van Bibber, 2013 YKSC 58 (CanLII), <http://canlii.ca/t/g0s9p> and Franchuk v Schick, 2014 ABQB 249 (CanLII), <http://canlii.ca/t/g7rt9> the defence of qualified privilege succeeded in defamation cases arising from complaints about sexual harassment in the workplace.

The courts have also applied the defence to cases involving job references, even after the employment relationship had been terminated. For example, in the case of Kanak v Riggin, 2017 CanLII 30156 (ON SC), <http://canlii.ca/t/h3tlv> (affirmed by 2018 ONCA 345 (CanLII), <http://canlii.ca/t/hrct8>), a “bad reference” i.e. a derogatory statement by an employer about an ex-employee was found to be protected. The Court described the important social policy in protecting job references as follows:

The social policy underpinning the protection of employment references in this manner is clear: an employer must be able to give a job reference with candour as to the strengths and weaknesses of an employee, without fear of being sued in defamation for doing so. Without this protection, references would either not be given, or would be given with such edited content as to render them at best unhelpful or at worst misleading to a prospective employer.

Defeating the Defence of Qualified Privilege

Qualified privilege can be defeated if the plaintiff can show either that the dominant purpose for making the defamatory statement was malicious, or if the defamatory statement made exceeded the bounds of the privilege.

Malice

In Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, 1995 CanLII 59 (SCC), <http://canlii.ca/t/1frgn>, the Supreme Court described malice in the context of a claim for libel as follows:

Malice is commonly understood, in the popular sense, as spite or ill‑will.  However, it also includes, as Dickson J. (as he then was) pointed out, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth.

The Court in Salager v Dye & Durham Corporation, 2018 BCSC 438 (CanLII), <http://canlii.ca/t/hr3wh> described the test for malice as follows:

To determine whether a defendant acted out of malice, it is necessary to examine their state of mind when the defamatory publication was made. This can be shown by examining the defendant’s acts, conduct and expressions: Brown on Defamation, vol. 5, at 16.4(1).

Evidence to prove malice may be either intrinsic or extrinsic. It may be proven from the words of the publication or by evidence apart from the words. As it relates to intrinsic evidence, the court will consider the style of publication to determine whether intemperate language was used or whether the words were couched in terms stronger than necessary to gain the object in view. Such words may give rise to an inference of malice, particularly where the intemperance is the product of deliberation: Brown on Defamation, vol. 5, at 16.4(3)(a).

Extrinsic evidence, such as the conduct of a defendant, may also be evidence of malice. The court may, for example, consider conduct prior to publication and during the course of events, including the legal proceedings, such as correspondence between the parties, pleadings, answers at discovery and trial evidence. Malice may also be shown by submitting evidence of inconsistency between the way a defendant accurately characterizes the plaintiff’s actions on one occasion and inaccurately does so on a later occasion: Brown on Defamation, vol. 5, at 16.4(2).

A malicious state of mind may also be shown by evidence of additional publications made before or after the publication sued upon.

In practice, proving malice is a difficult hurdle for most defamation plaintiffs to overcome.

Defamatory Statements Exceeded the Bounds of Privilege

In the case of Hunter & Boyd & NAFCO v. Godin & Mallette & UCCO, 2012 ONSC 4774 (CanLII), <http://canlii.ca/t/fsgn4> the court found that comments published by a union president in a report delivered to the general assembly of the union exceeded the bounds of privilege. The judge discussed how the defence of qualified privilege may be lost in certain circumstances:

Qualified privilege may be lost where “what is published incorporates defamatory matter that is not relevant to the fulfillment of the particular duty or the protection of the particular interest on which the privilege is founded.”  The information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when information was given.  In Hill, Supra, Kory J. held:

Qualified privilege may be defeated when the limits of the duty or interest have been exceeded.  As Loreburn E. stated in Adam v. Ward at pp.320-321:

  …the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion.  Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. 

The Court went on to find that calling the plaintiffs liars “exceeded any legitimate purpose that the President’s Report served.”

Conclusion

Malicious attacks on a person’s reputation in the workplace may give rise to a defamation claim. However, honestly made statements made in the context of an employment situation, will in many cases be immune from liability, even if the statements are ultimately false and derogatory. Every case is different and it is wise to consult a defamation lawyer from the outset before any legal steps are taken.