Labor & Employment Law

Defamation in Employment Cases and Qualified Privilege

By Michael Fitzgibbon

Every so often we see defamation claims crop up in wrongful dismissal actions. They come up in different contexts such as performance reviews, reference checks and post-termination documentation.  

The British Columbia Court of Appeal considered this matter in Dawydiuk v. Insurance Corporation of British Columbia.  There were a number of issues, but with respect to the defamation claim, the Court summarized the matter as follows:

In the course of the proceedings, the [employer] produced various documents including an email dated September 28, 2004 from ICBC?s supervisor, ..., to an internal ICBC email address. The email was also copied to specific individuals at various other email sites of the respondent.

When this document was produced, [the employee] amended her statement of claim to include a claim for defamation based upon the contents of the supervisor?s email.

The Court provided more information about the background/basis for the claim:

Following [the employee's] termination, [her supervisor] completed an internal document required by ICBC?s human resources department describing the circumstances leading to the termination.  In the document he selected from a list of potential answers three reasons for dismissing [the employee], including that she was ?dissatisfied with change? and that she was ?dissatisfied with work environment?, and ?inadequate performance?.  In addition, [the supervisor] advised that he considered [the employee] as ?not re-hireable? and rated her as ?unsatisfactory?.

The question was whether this was defamatory and, if so, whether a defence existed.  

The Trial judge found that there was no defamation.  The Court of Appeal disagreed referring to the words of Mr. Justice Binnie in WIC Radio Ltd. v. Simpson: 

Under the present law, if a plaintiff shows the defendant published something harmful to his or her reputation, then both falsity and damage are presumed, and the onus shifts to the defendants to establish an applicable defence, including the defence of fair comment.

The Court of Appeal concluded that the comments were defamatory and then turned to the employer's main defence - that the words were protected by qualified privilege.

A qualified privilege was discussed by Professor Raymond E. Brown in his treatise ?The Law of Defamation in Canada?

There are certain occasions on which a person is entitled to publish untrue statements about another, where he or she will not be liable even though the publication is defamatory.  One such occasion is called a conditional or qualified privilege.  No action can be maintained against a defendant unless it is shown that he or she published the statement with actual or express malice.  An occasion is privileged if a statement is fairly made by a person in the discharge of such public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to a person who has some corresponding interest in receiving it.  The duty may be either legal, social or moral.  The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to those to whom it was published. 

There is a discussion of qualified privilege in a reference check in this case and a detailed discussion in McGarrigle v. Dalhousie University.

The BC Court of Appeal concluded that while the supervisor "had an interest in making the statements in question" and the Human Resources personnel "had a corresponding duty to receive it? there was a snag:

The report was, however, also sent to an individual named Glenda Mohr.  There was no evidence about Ms. Mohr?s position or status with ICBC, so the trial judge was left with no basis upon which he could conclude that she had any duty to receive Mr. Rees? report.

So, while members of the HR department and even the employee's supervisor seem to have had a duty to receive the report it was not clear if this other individual had such a duty.  Qualified privilege applied except with respect to the disclosure to Ms. Mohr.

There are many lessons here.  In the employment context, qualified privilege is available however it is not a complete shield in all cases.  Care must be taken not only about what is written or said, but about who is provided with the information.  Going beyond those having a "duty to receive" it can have consequences and the qualified privilege will not apply.

Dan Michaluk also has a post on the case.  

Full post as published by Thoughts from a Management Lawyer on July 26, 2010 (boomark / email).