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When employees are disparaged by outsiders

4 Oct

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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Union defames hospital administrator by publishing grievance, no privilege

21 Mar

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).

Ontario court stresses that law tolerates rough political debate

4 Jan

On December 21st, the Ontario Superior Court of Justice ordered a retrial of a successful defamation action in a case that nicely illustrates the heavy burden on a party seeking to sue another for a defamatory publication that is made on an occasion of qualified privilege.

The defendant was a municipal councillor who responded to an e-mail sent by a community activist to council members about a matter of public interest. The defendant’s response stated that the plaintiff was “a destructive mean spirited liar that does not deserve the time of day.”

The appeal court held that the trial judge erred by applying the wrong legal test for qualified privilege. In essence, it explained, the trial judge relied upon the malice inherent in uttering defamatory words to conclude that qualified privilege did not arise instead of recognizing the occasion of privilege and properly assessing whether the plaintiff had proven “express malice.” To illustrate, the appeal court noted that:

  • the trial judge held that the defendant made his publication negligently, but did not find that he spoke “dishonestly” or “with knowing disregard for the truth” as required by to rebut the presumption of honest belief; and
  • the trial judge held that the defendant made his publication “to re-enforce his own political goals and to discredit his opponents, and in particular, their spokesman [the plaintiff],” which signalled an intent too valid to warrant a finding of malice.

Although the appeal court acknowledged these findings, it held that it could not render a final judgment because the factual findings at trial did not address the proper tests. It ordered a new trial on the question of malice alone.

Whitehead v Sarachman, 2012 ONSC 6641 (CanLII).

Ontario claim attacking a report of concerning behavior and university response may proceed

1 Jan

On December 20th, the Ontario Superior Court of Justice dismissed a motion to strike a defamation and negligence claim that arose out of a student’s report of concerning behavior to her university.

The plaintiff alleges he was wronged by the student’s report of the following facts and the university’s further (and allegedly negligent) “reporting” and “publication” of the following facts (as summarized by the Court):

  • Two weeks earlier the plaintiff had approached the individual defendant after class and advised her he really liked her, had strong feelings for her, and wanted to pursue his feelings in a relationship knowing she had a boyfriend.
  • That the plaintiff told the individual defendant he was not able to sleep, paced in his bedroom all night to fall asleep, and also advised her he could not live without her.
  • That the individual defendant was concerned for the plaintiff’s health as he might hurt himself and did not seem to have any friends or family in the area.
  • That the individual defendant had reported that the plaintiff had asked her out four times and had said things that made her feel uncomfortable.

The Court held that there was no basis for concluding the claim was about an academic matter within the university’s exclusive jurisdiction. It also held that the claim, as pleaded, appeared to disclose a reasonable cause of action.

This preliminary decision is of no great significance, though the issue raised by the claim itself is important to post secondary educational institutions. Colleges and universities in Ontario and elsewhere have worked hard to encourage community members to report concerning behavior so it can be properly assessed and managed. Notably, in this case the university and the student defendant are jointly represented.

Thode v University of Ottawa, 2012 ONSC 7284 (CanLII).

Order to Disclose Anonymous Postings Denied (Ontario)

25 Jul

On July 20th, Justice Carole Brown of the Ontario Superior Court of Justice declined to order production of information that would tend to identify individuals who anonymously posted statements on a municipal affairs website.

Justice Brown held that the plaintiff did not meet her burden of establishing a prima facie case of defamation because she failed to provide sufficient particulars and failed to serve a timely notice of intended action in defamation. While the motion was disposed of on these technical grounds, Justice Brown also stressed the importance of the prima facie case standard given the statements the plaintiff alleged to be defamatory related to her former political office:

I am cognizant, in the present case, that the alleged defamatory statements were made in the context of a hard-fought political campaign. They clearly related to the mayoral position and the governance of the Mayor, councillors and the municipal government generally. In ensuring that proper weight is given to the important value of freedom of expression, particularly in the political context, the importance of the stringent prima facie test is necessary to protect and balance the public interest in favour of disclosure with the competing interests of privacy and freedom of expression.

The Canadian Civil Liberties Association intervened in opposition to the plaintiff’s motion.

Morris v. Johnson, 2011 ONSC 3996 (CanLII).

Order to Identify Anonymous Message Board Users Granted (Ontario)

6 Jun

On May 30th, the Ontario Superior Court of Justice granted an order to defamation plaintiff Richard Warman to help him identify two individuals he alleges defamed him by posting comments on the “Freedominion” message board.

Mr. Warman’s process of identifying eight “John Doe” defendants has taken some time. He first obtained an order in March 2009, but it was quashed in May 2010 by the Divisional Court – see “Court says suing message board operator not an easy means to identify anonymous internet users.” Following the Divisional Court order, Mr. Warman discovered six of the John Does’ identities without the aide of a court order. He then came back to the Court to identify the unidentified two.

Justice Blishen issued an order requiring the operators of the Freedominion site to provide identifying information over their objection and based on the four-part test articulated last May by the Divisional Court. She rejected an argument that the use of pseudonyms gave the unidentified John Does a reasonable expecation of privacy. She also rejected an argument that the common use of “hyperbole” and “exaggeration” on the Freedominion site rendered the impugned publications incapable of having a defamatory meaning.

Hat tip to Peg Duncan!

Warman v. Wilkins-Fournier, 2011 ONSC 3023 (CanLII).

SCC Considers Defamation in a Group Context

22 Feb

On February 17, the Supreme Court of Canada released a decision that considered defamation in the context where comments had been made about a group.  The defendant, André Arthur, was a Montreal radio host known for making provocative remarks.  In a broadcast, he made quite negative, disparaging remarks aimed at Montreal taxi drivers, and especially those whose mother tongue was Arabic or Creole.  The plaintiff was a taxi driver whose mother tongue was Arabic.  He commenced a class action in defamation.

While the Supreme Court was considering defamation in the context of a claim made within Quebec civil law, the Court’s judgement contains numerous comments of general importance.  For example, the Court discussed the importance of striking a balance between freedom of expression and protection of reputation, and noted that it is a constantly shifting balance:

[19]                          Of course, there is no precise measuring instrument that can determine the point at which a balance is struck between the protection of reputation and freedom of expression.  In reconciling these two rights, the principles on which a free and democratic society is based must be respected.  The intersection point will change as society changes.  What was an acceptable limit on freedom of expression in the 19th century may no longer be acceptable today.  Indeed, particularly in recent decades, the law of defamation has evolved to provide more adequate protection for freedom of expression on matters of public interest.  In the common law, for example, this Court has reassessed the defence of fair comment (WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at paras. 49 et seq.) and recognized the existence of a defence of responsible communication on matters of public interest (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640).

In terms of the discussion of defamation, the Court noted that three elements had to be proved:  fault (determined by looking at the defendant’s conduct through a reasonable person standard); personal injury (i.e. damage to reputation as determined from the ordinary person standard); and causality between the fault and the injury.

In the decision before the Court, the focus was on personal injury, as both fault and causality had not been disputed.  The question of personal injury was complicated both because of the procedural vehicle used to bring the action (a class action) and by the fact that the comments had been directed at a group (approximately 1,100 drivers whose mother tongues were either Arabic or Creole).  With respect to the class action, the Court reaffirmed that it was merely a procedural mechanism that did not alter the legal requirements of the underlying cause of action.

Of perhaps greatest interest is the Court’s attempt to set out factors that come into play when determining whether comments directed at a group cause personal injury sufficient to ground a claim in defamation.  Those factors are:

  1. Size of the Group – As a general principle, “the larger the group, the more difficult it is to prove that injury has been sustained by the member or members bringing the action.”
  2. Nature of the Group – “In general, the more strictly organized and homogeneous the group, the easier it will be to establish that the injury is personal to each member of the group.”
  3. Plaintiff’s Relationship with the Group – The focus here is on the plaintiff’s status, duties, responsibilities and activities within the group.  “A person who is a well-known member of a group is more likely to suffer damage to his or her reputation as a result of comments made about the group.”
  4. Real Target of the Defamation – “The judge must also consider the words, gestures or images used to convey the message…The more general, evasive and vague the allegations, the more difficult it will be to go behind the screen of the group.”
  5. Seriousness or Extravagance of the Allegations
  6. Plausibility of the Comments and Tendency to be Accepted – “Generally speaking, a plausible or convincing allegation will capture the ordinary person’s attention more and thus make it easier for that person to connect the allegation with each or some of the group’s members personally.”
  7. Extrinsic Factors – In this last category, one considers factors related to the maker of the comments, the medium used and the general context.

Weighing these factors, the majority of the Court (Abella J. dissenting) found that the plaintiff had not established injury of a personal nature.  Thus, the claim in defamation could not proceed.

Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9