Union defames hospital administrator by publishing grievance, no privilege

On March 1st the Saskatchewan Court of Appeal held that a union and its representatives defamed the director of a teaching hospital by publishing a grievance that alleged he became “an active part of the harassment himself” by his handling of a harassment complaint against others.

The Court accepted that a publication by a union made for the purpose of “fair representation” (including for the purpose of locating witnesses for a pending arbitration) might attract qualified privilege, but held that the union went too far in the circumstances “having regard for the manner of communication, the wording of the communications, their timing and to whom they were given.” In particular, the Court held that the union could not satisfy the “reciprocity of interests” element of the qualified privilege defence because it published the grievance on the open internet. It explained:

The trial judge did address the question of publishing in relation to the internet (at para. 78), but he dismissed this aspect of the complaint by finding in effect that the use of the internet is a fact of life. As Brown on Defamation states “[t]he use of an internet website for the circulation of information to the union membership may be appropriate and privileged but only if reasonable steps are taken to restrict access to the website by the public generally or to those not interested in the information” (at 13.6(3)(d)(ii)(C), vol. 4). The internet is not a tool that can be used to expand qualified privilege so as to justify the broad publication of a defamatory statement, but rather it exacerbates the libel. In this case, it is common ground that the Union’s website was open to the public on the internet, without any access code protections or other privacy protections. Anyone with internet access could gain access to it. It is irrelevant, in my view, that Dr. Rubin did not present any evidence to the Court to prove that anyone did in fact search the internet to find the communication.

Also notably, the Court awarded $100,000 in general damages, which the court characterized as just shy of an amount that might be awarded for “extreme and egregious conduct.” It declined to award aggravated or punitive damages.

Rubin v Ross, 2013 SKCA 21 (CanLII).

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