The Ontario Court of Appeal has now issued a decision confirming the law with respect to workplace harassment investigation reports, wherein the investigator /author of the report, will not be liable for defamation for the findings in the report.
In the case at bar, the employer, through legal counsel, retained the service of a workplace investigator to investigate allegations of workplace harassment and sexual harassment by a doctor against two of the employee’s superiors. After the conclusion of the investigation and the release of the investigation report, the doctor brought an action against the investigator claiming the report/executive summaries were defamatory.
The investigator brought a motion to have the action dismissed. The motion was granted and the finding of that dismissal was upheld on appeal.
The Court of Appeal applied the s.137.1 Courts of Justice Act test established by the Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, at para. 18:
“In brief, s. 137.1 places an initial burden on the moving party — the defendant in a lawsuit — to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party — the plaintiff — to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted and the underlying proceeding will be consequently dismissed. It is important to recognize that the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis: as noted repeatedly above, the [Anti-SLAPP Advisory Panel: Report to the Attorney General] and the legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest. Section 137.1(4)(b) is intended to optimize that balance.”
[emphasis added]
The Court held that the subject matter was a matter over which the public has substantial interest; namely, sexual harassment and workplace harassment and, investigations into these issues.
However, the court refused to say that this was enough. The mere fact an expression relates to sexual or workplace harassment “will often be insufficient to bring it within the scope of public interest.”
The Court held that next the contextual approach must be applied to determine “what the expression at issue is really about”.
In this case, there had been media attention, and there had been extensive news coverage in which the doctor had acknowledged that patient safety concerns surrounded her allegations. The concern for patient safety in a public institution is not a private matter and the Court found this directly engaged the interest of the community.
Further, it held the reports were protected by qualified privilege, a defence to defamation. Qualified privilege exists “if a person making a communication has an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or duty to receive it”.
Here the court held the investigator was retained to investigate allegations of workplace harassment and to prepare investigation reports for the hospital, as required by the Occupational Health and Safety Act (“OHSA”). Pursuant to the OHSA, the employer had a legal duty to provide, in writing, the results of the investigation, and any corrective action taken, to the complainant and her alleged harassers.
There was no evidence of malice on the part of the investigator and hence on the balancing of interests, the public interest in permitting the proceeding to continue did not outweigh the public interest in protecting the expression.
While the decision refrains from making wide-sweeping statements about investigation reports, it is hard to see that there would be too many instances in which the defamation reports against investigators would be permitted to stand.
Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86