Libel or defamation claims are at the top of some employees’ lists of fears when they consider taking action against their boss. As a general rule, an employer can’t sue you for libel or defamation just for suing them or filing a human rights complaint against them. After all, even if your lawsuit says terrible things about them, they get to defend themselves in court if they disagree. But what about employees who take their stories to the press?
An Ontario judge recently dismissed a counterclaim of libel against Medha Joshi by her former employer, Allstate Insurance. Allstate sued for libel after Joshi filed a wrongful dismissal claim alleging that she was fired because she refused to participate in her employer’s discriminatory “postal code” policy of not providing insurance to Brampton residents, many of whom she identified as being “visible minorities”.
Allstate took offence when Joshi gave a CBC interview about her employer’s allegedly discriminatory practices. Allstate claimed that their former employee’s statements to the press were libel because they made with malicious intent and were distinct from her claim of wrongful dismissal and therefore constitute libel.
This case poses several questions, perhaps most importantly is what exactly are employees and former employees allowed to discuss when it comes to their companies? When does expressing one’s opinion on a company become libel or defamation? When can a company sue for libel or defamation and, more importantly, when can they not?
What is Libel or Defamation?
Libel is published false statement that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person being written about. Defamation is similar, but includes unpublished statements that harm some one’s reputation. People sometimes use the word “slander”, too.
Often, people defend against allegations of libel or defamation by showing that what was said was truthful, even if it harmed someone. However, proving that you were telling the truth can be a long and drawn out process. For employees like Joshi, it might mean proving the allegations in your wrongful dismissal case. To simplify issues and to avoid abuse, the government introduced legislation to let courts throw out what they call a Strategic Lawsuit Against Public Participation, or SLAPP (see below).
Other defences against libel or defamation include absolute privilege, qualified privilege, fair comment, responsible communication on a matter of public interest, and communications made with the express or implied consent of a person (Find the full definitions for each of these here and consult a lawyer if you need advice). These defences cover things like the rule that you can’t sue someone for what they write in a lawsuit against you, for things said in confidential settlement negotiations, or journalists doing their due diligence.
Anti-SLAPP protections can save employees from costly libel or defamation suits when their allegations engage the public interest
A SLAPP is a lawsuit brought to discourage someone from engaging in “public participation”. It is an intimidation tactic employed by those who wish to suppress the rights of people who speak out against them. Since defending a lawsuit is too expensive for many people, wealthy people, groups and corporations could effectively use the court system (or just the threat of a lawsuit) to silence critics.
Anti-SLAPP legislation exists so that people will not be scared (or at least be less scared!) to comment on certain matters of public interest out of fear of being sued. In Ontario, this means that courts can quickly throw out cases that were clearly intended to silence public participation without forcing employees or other less-resourced parties to go through a length and expensive trial.
Anti-SLAPP legislation does NOT cover private interactions, only those issues which concern a “public interest”. The need for critical discourse on topics of public interest is so strong that the Judge in Joshi’s case found that even a “demonstrably false” statement can be protected if it relates to a matter of public interest, provided it wasn’t made maliciously. Because of this, Joshi’s intent was an important part of the case: did she share the information because it was actually of public interest or just to harm her former employer? The judge agreed that her comments to the press were protected comments on an issue in the public interest, not just an attack on Allstate’s reputation.
Joshi showed that discussing the alleged policy of an insurance company to not provide insurance to Brampton customers whether because of the area (aka a “postal code policy”), or because of the high amount of visible minorities in the area would be a matter of public interest. Her former employer’s case against her was dismissed.
Not every fired employee will have the same motivations as Joshi, or have a story to share that the Court will agree addresses issues of the public interest. Nevertheless, it’s an important reminder to corporations that anti-SLAPP legislation will make it harder for them to intimidate former employees away from telling their stories.
If you’re thinking about taking a story about your former employer to the press, consider getting legal advice first so you can weigh the risks.
Joshi v. Allstate Insurance Company of Canada, 2019 ONSC 4382 CanLII
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