In its recent decision in Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86, the Court of Appeal for Ontario unanimously upheld the dismissal of a defamation claim against a workplace investigator for her workplace investigation report. Specifically, the court decided that the defamation action amounted to “Strategic Litigation Against Public Participation” (“SLAPP”) and the contents of the investigation report were protected by the doctrine of qualified privilege.
A medical resident at the Northern Ontario School of Medicine (“NOSM”) alleged that both her program director and a NOSM faculty member sexually harassed her. The resident hired a publicist and her allegations were covered in national, provincial, and local media.
In response, NOSM retained an investigator to investigate her complaints. The program director and faculty member were the respondents in the investigation. The investigation was required under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”).
After completing her investigation, the investigator submitted executive summaries of her report to NOSM. These summaries were not publicly disseminated, although each respondent and select staff at NOSM received the summaries. The summaries contained the investigator’s findings, including her findings about the resident’s credibility.
The resident subsequently commenced an action against the investigator (and her law firm) alleging that the summaries were defamatory. In response, the investigator brought an anti-SLAPP motion to dismiss the action, pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under s. 137.1, courts must dismiss any proceeding that arises from an expression related to a matter of public interest, unless the responding party establishes that: (i) there are grounds to believe that the proceeding has substantial merit and the moving party has no valid defence; and, (ii) the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression in issue.
Superior Court of Justice Decision
The motion judge granted the motion to dismiss. He held that: (i) the summaries related to a matter of public interest; (ii) the allegedly defamatory statements were communicated in a situation of qualified privilege; (iii) the investigator did not act with malice (a finding of which would have barred her qualified privilege defence); and, (iv) the public interest in protecting the summaries outweighed the public interest in permitting the resident’s lawsuit to continue.
The resident appealed.
Court of Appeal Decision
The Court of Appeal upheld the motion judge’s decision.
The court concluded that the investigator’s summaries concern general matters like sexual harassment and workplace harassment over which the public has substantial interest. However, the court noted that “the mere fact that an expression relates to sexual and workplace harassment, on its own, will often be insufficient to bring it within the scope of public interest”. The court further stated that if this were not the case, then “the anti-SLAPP framework would apply - in most cases - to defamation proceedings stemming from #MeToo workplace allegations”.
The court held that it must consider all the facts and the context of the case, beyond just the mere fact that the expression related to harassment. Here, the resident acted to publicize her underlying harassment allegations. The court deemed this act to be “the antithesis of trying to keep the matter private”. The court also noted that the allegations and resulting investigation arose at a public, educational institution.
The court upheld the motion judge’s conclusion that the investigator’s summaries were protected by the defence of qualified privilege. The court applied the established rule that qualified privilege exists if the communicator has a duty to publish the information and the recipient has a corresponding duty or interest to receive such information. The court concluded that based on the OHSA, the investigator had a duty to provide her report to NOSM and NOSM (and its employees) had a corresponding duty or interest to receive this report.
Safavi-Naini v Rubin Thomlinson LLP provides a helpful analysis of how the anti-SLAPP legislation and qualified privilege apply in the context of a workplace harassment investigation.
The Court of Appeal confirmed that given that there is an obligation to investigate allegations of workplace harassment under OHSA, the investigator’s report was protected by qualified privilege. In such matters, investigators are tasked with the responsibility of making findings and preparing thorough, intelligible reports. By protecting an investigator’s reports from a defamation claim, the Court of Appeal has reinforced the ability and importance of ensuring that workplace investigators are able to freely conduct their work and make findings, even though one party may not agree with those findings.