OPC issues significant findings in response to online reputation complaint

The IPC recently responded to a complaint by a dentist about the the RateMDs review site, at which several individuals purporting to be her patients had posted anonymous reviews. The OPC findings are significant favor the public’s right of expression over doctors’ interest in personal privacy.

The OPC first held that RateMDs did not need the complainant’s consent to publish the reviews because the reviews constituted so-called “mixed personal information” – a term used by the IPC/Ontario to refer to personal information that relates to more than one individual. The Federal Court of Appeal test from Pirrie calls for a very contextual balancing of interests in addressing access requests for such information. In this case, the OPC applied a similar approach to deny the complainant the ability to block the publication of others’ opinions about her. It said:

Giving effect to the Complainant’s lack of consent would mean the interests of the patients who are consenting to the publication of their reviews and ratings would not be respected, and the benefits to the public more broadly would be negated. We are therefore of the view, based on a balancing of interests of the Complainant with those of the reviewers and the public more generally, that this aspect of the complaint is not well-founded.

The OPC held that RateMDs’ accuracy and correction obligations under PIPEDA require it to correct ratings that are inaccurate, incomplete or out-of-date. However, it also acknowledged that challenging the inaccuracy of an anonymous review is difficult and held that that PIPEDA will “generally” prohibit review sites like RateMDs from disclosing the identity of anonymous reviewers.

Finally, OPC held, that RateMDs should discontinue a paid service that allowed doctors to hide up to three reviews “deemed to be suspicious.” While this finding is understandable, it is ironic that a privacy regulator has applied our commercial privacy statute to take away a potential privacy remedy. All in all, that is what this finding does: it makes clear that PIPEDA is not an effective remedy for challenging seemingly fair reviews posted on a bona fide review site. Those aggrieved must go to court and sue in defamation or (if they are up for a challenge) breach of privacy.

PIPEDA Report of Findings #2020-002, June 30, 2020.

Confidentiality order issued in the name of encouraging sexual violence reporting

On February 10th, Justice Faieta issued a confidentiality order to protect the identity of a sexual violence complainant – a non-party who was summoned to testify about a workplace harassment complaint given the relevance of her complaint to a defamation action. Justice Faieta described the “important interest” favoring the order as follows:

Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct.

Justice Faieta also said that the order only had a deleterious effect on “the prurient interests of the few.”

Fedeli v. Brown, 2020 ONSC 994 (CanLII).a

“Steep hill” to climb for defamation plaintiffs when suing on matters of public interest

On July 25th, the Ontario Superior Court of justice dismissed an action under a new provision of the Ontario Courts of Justice Act intended to dissuade persons from bringing “strategic lawsuits against public participation” – so called “SLAPP” suits.

The plaintiff is a company that operates a gravel pit. It sued a Stouffville teacher who made two postings to Facebook about a municipal approval that allowed an expansion of the company’s operation. The defendant made the posts without reading the engineering report the plaintiff had filed with the municipality or taking any other significant steps to inform herself of the issue. She said the defendant would profit significantly from the approval, the municipality would not, and the defendant “would potentially poison our children.” When the plaintiff demanded an apology, the defendant apologized. The plaintiff sued anyway.

The plaintiff agreed that the defendant’s expression related to a matter of public interest – leaving the plaintiff to establish that its proceeding had “substantial merit,” that the defendant had “no valid defence” and that it had suffered (or was likely to suffer) “sufficiently serious harm” in order to survive dismissal under the CJA’s anti-SLAPP provision. The Court held that none of these criteria were met, dismissed the action and awarded $7,500 in damages to the plaintiff (in part reflecting how the plaintiff conducted its proceeding and in part reflecting the defendant’s failure to adduce medical evidence in support of her damages claim).

The judgement means that the burden on a party seeking civil redress for statements made about a matter of public interest is high. In this case, for example, it did not matter that the plaintiff took few steps to inform herself of the issue or used the “unfortunate” word “poison”; informed or not, the Court said the plaintiff had a right to enter the public forum and use emphatic language in doing so without the risk of being sued. Justice Lederer explained:

I am inclined to the view that the legislature did more than just “tilt the balance somewhat”. Rather the legislature created a steep hill for the plaintiff to climb before an action like this one is to be permitted to proceed. The legislation directs that we place substantial value on the freedom of expression over defamation in the public sphere. To put it simply, those who act in the public realm need to realize that not everybody will accept what they wish to do or agree with what they say and may make statements that go beyond what may seem, to the recipient, to be appropriate.

United Soils Management Ltd. v. Mohammed, 2017 ONSC 4450.

No relief for victims of harassment – Ont CA

I’ve written here about the difficult position an employer/organization is placed in when its employees are harassed by “outsiders.” On July 20th the Court of Appeal for Ontario illustrated the difficulty by affirming a decision that denied relief from such harassment that a municipality (and its mayor) sought on behalf of the mayor, councillors and staff. The decision suggests that an employer’s duty to provide a safe and harassment free environment provides no basis for a civil remedy. 

Rainy River (Town) v. Olsen, 2017 ONCA 605.

Limitation period does not toll with continued online publication – Ont CA

On July 7th the Court of Appeal for Ontario held that a limitation period for an online publication runs from the date of discovery despite continued online publication. It explained:

The appellant seeks to rely on an incorrect interpretation of the “multiple publication rule”. That concept provides that when an alleged libel is republished across different mediums, including the Internet, those republications are treated as distinct libels. In Shtaif, the court rejected the notion that the limitation period for a suit about an online magazine article starts to run when the plaintiff becomes aware of the printed version. This was the basis for the conflicting evidence on discoverability in Shtaif. This decision does not mean that each day of online publication grounds a new cause of action. The court in Vachon v. Canada Revenue Agency, 2015 ONSC 6096 (CanLII), expressly rejected this interpretation of Shtaif. I concur with Hackland J., who said, at para. 22:

The plaintiff argues that the alleged defamation should be taken as having been republished every day [while it] remained accessible on the internet … Shtaif does not support that proposition … any limitation period based on discoverability will run from the point where the internet defamation is discovered.

The time by which the plaintiff must give notice under s. 5(1) and bring his action under s. 6 begins to run when the libel has come to the knowledge of the person defamed. There is no dispute here that, on December 5, 2013, when the appellant submitted the “factual error” message, he was aware of the facts on which his cause of action might be founded. He was aware of the statements, took exception to them as inaccurate, and demanded a correction. The clock began to run on December 5, 2013, when the appellant knew that statements were made that might be considered libellous.

John v. Ballingall, 2017 ONCA 579 (CanLII).

Ont CA addresses privilege in communicating a sex assault allegation

On July 20th, the Court of Appeal for Ontario allowed an appeal of a civil sexual assault finding and, at the same, time awarded defamation damages to the party alleged to have committed the assault.

The matter dealt with assault and sexual assault claims brought by a sister against her older brother. She alleged the assaults occurred many years ago, the action being commenced based on “recovered memory.” Before the sister commenced her claim, she came out with the allegations in an e-mail to her brother, his wife and children, her two sisters and their families, her daughters and a woman she had been friends with in high school. She then sent similar communications to the same group as well as to her own lawyer and a lawyer involved in the administration of her mother’s estate.

The Court held that communication to the family members and lawyers was subject to qualified privilege but communication to the friend was not. The privilege in communicating with the family members was rooted in the sister’s need to “prevent future abuse or seek out emotional support” and the recipient’s reciprocal interest in deciding whether to take “protective action.” The privilege in communicating with the lawyers appears to be rooted in the nature of their retainers. Regarding the friend, the Court said:

However, there was no duty or interest on the part of the respondent’s former high school friend to receive the respondent’s communications. The respondent admitted that their friendship did not last after high school had ended and that they only briefly reconnected after the death of the respondent’s mother.  She did not testify as to her reason for copying the friend on the defamatory emails. There was no evidence that she asked her friend for assistance or advice, or that the friend ever responded to her communications. In these circumstances, there was no legitimate interest to be protected by the statements; as a result, they did not merit protection under the auspices of qualified privilege:  R.T.C. Engineering, at para. 15; Milgaard v. Mitchell (1996), 1996 CanLII 6950 (SK QB), 151 Sask. R. 100 (Q.B.), at para. 36.

Assault and sexual assault survivors can describe their allegations in seeking assistance and pursuing complaints, but may be liable for communicating their allegations too broadly. This finding gives fairly permissive scope to the (protective) qualified privilege doctrine, but also illustrates that its protection is has limits.

The Court also made a finding about the use of opinion evidence for the purpose of assessing credibility. This use of evidence is impermissible as “oath helping” and, in this case, rendered the trial judge’s sexual assault finding erroneous.

Whitfield v Whitfield, 2016 ONCA 581 (CanLII).

ONSC grants permanent injunction to address vitriolic internet campaign

On April 17, Justice Broad of the Ontario Superior Court of Justice issued a permanent injunction against a privacy and defamation defendant who he said engaged in a vitriolic campaign to discredit the plaintiff and her father – victims of a violent attack and hostage taking in which the plaintiff’s eight-year-old son was killed by the defendant’s brother-in-law.

A jury found in the plaintiffs’ favour and awarded damages in an amount that has not been published. Justice Broad issued a permanent injunction – an extraordinary remedy – because there was a real possibility that the plaintiffs would not receive any payment. He reasoned:

A possibility means a chance that something will happen, and a real possibility connotes a possibility that is not speculative or lacking in support. It is axiomatic that past behavior can act as a indicator of future behavior. In my view Richard Chmura’s failure to pay the outstanding costs awards, dating back up to more than four years ago, provides a sufficient basis for a finding that there is a real possibility that Julie Craven and John Craven will not receive any compensation, given that enforcement against Mr. Chmura of the damage award may not be possible. The test for the issuance of a permanent injunction preventing any continued or repeated publication of libelous statements about Julie Craven and John Craven has therefore been satisfied.

Craven v Chmura, 2016 ONSC 2406 (CanLII).

Ontario court issues significant and conservative decision on scope of privacy tort

On August 31st, the Ontario Superior Court of Justice issued a significant decision on the scope of the common law privacy tort – both declining to recognize a cause of action based on “public disclosure of private facts” and articulating how the protection granted by the recognized “intrusion” tort is circumscribed by the interest in free expression.

The case involved a claim against the CBC that the plaintiff – a researcher and professor at Memorial University in Newfoundland – framed both in defamation and breach of privacy. The claim arose out of an investigative journalism program that the CBC aired about the plaintiff’s ethics. The plaintiff alleged wrongs arising out of the words the CBC used in its broadcast and the CBC’s “investigative techniques.” These techniques included receiving and using a confidential report from an anonymous source.

Justice Mew first declined to recognize a claim based on the alleged public disclosure of private facts (or false light publicity). He reasoned that the law of defamation adequately addressed the wrong at issue in the case before him in a manner that carefully balanced the competing interests at stake. He said:

The CBC defendants submit, and I agree, that to expand the tort of invasion of privacy to include circumstances of public disclosure of embarrassing private facts about a plaintiff, would risk undermining the law of defamation as it has evolved and been pronounced by the Supreme Court. To do so would also be inconsistent with the common law’s incremental approach to change.

Justice Mew did, however, allow the jury to consider the whether the CBC committed an intrusion upon the plaintiff’s seclusion because, unlike a defamation claim, an intrusion claim “focuses on the act of intrusion, as opposed to dissemination or publication of information.” This finding left the jury with a difficult exercise in balancing competing rights. In instructing the jury, Justice Mew articulated a kind of immunity for receiving confidential information from whistle-blowers (without the use of unlawful means) and drew upon the defamation defences to circumscribe the intrusion tort as follows:

If you conclude that the actions of the CBC did not breach any laws, were not actuated by malice, or did not fall outside the scope of responsible communication, there would be no basis upon which you can find the CBC defendants liable for invasion of privacy. As to what constitutes malice and responsible communication, you should apply the same considerations that pertain to the defences of fair comment and responsible communication described by me earlier in relation to the defamation claim. If you have considered those questions (4 and 5) and have concluded that the defence of responsible communication should succeed, then you should answer “No” to question 8, since it would be inconsistent with the recognition of the place of responsible communication in the balancing exercise that I mentioned just now if a journalist whose actions benefit from the protection of that defence in a defamation claim were to remain exposed to a claim for invasion of privacy arising from her journalistic activities. Put another way, the prerequisite that there must be no lawful justification for the invasion of a person’s private affairs or concerns will be hard, if not impossible, to satisfy if there has been a finding that such an invasion occurred during the course of responsible journalistic activities.

Chandra v CBC, 2015 ONSC 5303 (CanLII).

The risks of taking partial responsibility for an employee defamation claim

We had our semi-annual PD day yesterday. I gave this presentation on one aspect of responding to disparagement against employees by outsiders. I deal in detail with the risks associated with the special limitation period under libel and slander legislation.

When employees are disparaged by outsiders

I spent today in Banff at the annual conference of the Canadian Association of Counsel to Employers and sat on a social media and privacy panel with David Fraser of McInnes Cooper and Philip Gordon of Littler Mendelson. I’ve put my materials below. There’s a paper on how to manage employee disparagement by individuals from outside the organization. I’ve then included my notes for the panel, which include commentary on (1) the influence of American law, (2) the significance of the Kone GPS case, (3) striking a balance when implementing new privacy-invasive policy, (4) WSIB claims resulting from disparagement, (5) the risks associated with giving employment references and (6) the duty of loyalty and fidelity of current employees.

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