CACE PAPER SUMMARY The paper in your materials about defamation of employees by individuals from outside the organization

and answers the general question, “What should an employer do?” I wanted to write it for you because I am now regularly asked to become engaged in these issues and have formed the view that our and our clients’ instincts lead us in the wrong direction. This may be based our natural sympathies for the helpless employee. It may be based on our contempt for the outsider – people who use the internet poorly certainly draw my own contempt. But we tend to join arms far too quickly with our employees, which in my view is very dangerous. The paper explains the danger in detail. Here I’ll just give you four reasons in bullet style: 1. An internet takedown effort is not as simple as it seems and will often require commitment through to trial. This is a function of the properties of a defamation cause of action, which does not ordinarily allow for injunctive relief. It is also a function of the outsider profile: the typical outsider has nothing to lose and is looking for a fight. 2. There is no established duty to fund or otherwise support a takedown effort merely because an employee’s reputation is damaged in the course of work. Employers have a clear duty to provide a safe and harassment free work environment and a

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recognized discretion in selecting how to respond to harmful behavior. Employers have no recognized duty to protect or repair an employee’s reputation nor should they as a matter of policy given the subjective nature of reputational harm the recognized public interest against fomenting litigation. 3. Supporting an employee just a little is unfair to the employee and engenders prejudice through reliance. In most cases the best thing an employer can do for an employee who has been targeted is tell them straight up, “This is a serious problem, we will support you in the workplace but harm to your reputation is a personal matter and you ought to seek legal counsel quickly to see about your options.” 4. The outsider may be right. When the defamatory statement relates to an employees’ work, engaging with the outsider based on an assumption the employee behaved properly is extremely risky. If the assumption fails you will lose in a very public and very harmful way. If those points make you uncomfortable I may just be right in my theory about where our instincts take us. But I’m only issuing a warning. In some cases joining arms with our targeted employees may be fully appropriate. I simply invite you to read the paper and deal with some of its considerations first. DISCUSSION AND COMMENTARY Comment on importation of American Law

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-In reading Philip’s paper it struck me that there’s a values overlap in some areas and a strong disconnect in others -We’ve had a shared negative reaction to the practice of asking employees for social media passwords -It resulted in legislation in Nova Scotia that never got off the ground -I could see that coming around again – not a big deal for employers unless it comes in a form that creates other complications -In contrast, the NLRB rules are amazingly out of synch with our views on an employee’s duty of fidelity and the scope of speech that’s protected under our labour relations statutes -To suggest that your sales force can bitch in a quasi-public forum about the crappy food you buy for a client event because they are on commission is just remarkable -My feeling is that the average Canadian labour board adjudicator who reads that might feel the same way Comment on the Kone case -I don’t believe Kone is broadly significant -Involves the use of structured data that gives limited insight into the personal aspects of one’s life

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-Also involves a use that was controlled well by policy and technology and did not represent the kind of “eye in the sky” management that our law quite clearly proscribes -Facts -Data recorded in 11 minute increments -Batch processed and transmitted to Kone 4 to 6 times a day -It’s a specific balancing of interests in this context -We ought to recognize that video surveillance represents a far greater intrusion (there’s authority from the OPC on this point) Comment on striking a balance in implementing new policy -Strike balance by employing a good design and development process -The Ontario commissioner’s hobby horse is a philosophy she calls “privacy by design” – which means engaging in an early analysis that “bakes privacy into the initiative” -That’s right -Now that we have the Supreme Court of Canada recognizing that employees have inherent privacy rights we better recognize that in all our implementations, call the privacy offers in and do the analysis

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-That will avoid problems in justification and problems with irrationality that are demonstrated in the Mechanical Contractors drug testing case you noted to us [2013 CanLII 54951 (ON LA)] Comment on WSIB claims resulting from disparagement -First, our workplace insurance regimes do not allow for claims for damage to reputation – that’s clear -Claims are for disablements arising out of and in the course of employment (subject to legislative presumptions that tend to favour workers) -In our jurisdiction at least there is an extra requirement for a mental stress claim – must be “an acute reaction to a sudden and unexpected traumatic event” (WSIB policy says death threats, bomb threats) -Disablement that arise out of and in the course of employment? -Could very well be a strong enough link -Female police officer disparaged after a DUI charge goes public - NO -Junior lawyer who is targeted by an angry plaintiff - YES Comment on reference letter risks -Common practice today is to default to references that include facts that can only be construed neutrally -Date of hire

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-Position duties -Date of termination -Thank you very much -This approach is more conservative than justified – there is a benefit of sharing both positive an negative references -Are practical risks of issuing a negative letter, but protected by defamation defences -Might give negative facts – justification and qualified privilege defence – Miller v Bank of Nova Scotia (2002, Lederman) -Employer can also provide a negative opinion – fair comment defence -I, for one, don’t see there being particularly significant risks in writing a positive reference letter provided there provided facts are provided based on due diligence and comments are fair – practically, employers don’t often sue other employers for bad references (American case law. Not aware of any Canadian case law.) Comment on defamation by current employees -We pursue defamation by employees under a different and more forgiving legal framework than the defamation framework -Breach of the duty of loyalty and fidelity

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-Leading case is Fraser v PSSRB – a public sector case but I view it as relevant generally -The point that is worth making is that its not any nexus to an employer’s interests that gives an employer jurisdiction to punish -The test in my view is one of “significant interference” with a legitimate interest – “significant” doesn’t create a high standard – akin to “not trivial” -Example is the recent Nova Scotia janitor case -A may December relationship -40 year old school caretaker, 15 year old school student, different school -“Consensual” and developed outside school context -Finding – private, no employer jurisdiction -Affirmed by NSCA -Concern must be “substantial and warranted” -When we give advice on this we make a very contextual judgement call -We say, “that’s not quite over the line” and “that’s over the line,” which is all we can do -Here are two pieces of practical advice in expression cases

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-One – cases turn on the precise meaning of the words spoken – often our analysis is too general -Two – the meaning of the words will often be derived from the context – screen caps are often taken too narrowly – relevant evidence is missed TEST FOR QUALIFIED PRIVILEGE “At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality.” For the defence to apply, “[a] defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it” ……. Thus in the context of the defence of qualified privilege, malice must be proved by the plaintiff to defeat the presumption of good faith. And in this context “malice” means: (a) (b) lack of honest belief in the truth of the libelous statements; or use of the privileged occasion for an improper purpose

THE TEST FOR FAIR COMMENT It is therefore appropriate to modify the “honest belief” element of the fair comment defence so that the test, as modified, consists of the following elements: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must

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satisfy the following objective test: could any person honestly express that opinion on the proved facts?

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