Questions to ask when employees are disparaged by outsiders by Dan Michaluk, Hicks Morley1

The rapid expansion of the Internet coupled with the surging popularity of social networking services like Facebook and Twitter has created a situation where everyone is a potential publisher, including those unfamiliar with defamation law. A reputation can be destroyed in the click of a mouse, an anonymous email or an ill-timed Tweet. Bryan G. Baynham, Q.C., and Daniel J. Reid, “The Modern-Day Soapbox: Defamation in the Age of the Internet”2

The workplace is no refuge from the dark side of the internet. Employees are often disparaged online by people who they contact in the course of work and who are “outsiders” – former employees, students, parents and others who do not owe their employers duties under an employment contract or collective agreement. Facing the wrath of an angry and often unstable outsider, employees turn to their employers for help. “Just make them stop!” they cry. What are employers to do? This paper responds to this general question by setting out and discussing a number of specific legal and practical questions that are relevant to any outsider defamation scenario:       Who is being defamed? Whose interests are most affected? Is there a duty to help? If so, what does that duty entail? What are the implications of getting involved in the “takedown” process? Is direct engagement or indirect engagement most likely to lead to quick and cost effective resolution? Is a funding arrangement appropriate and lawful? Assuming the employer has been defamed, is it nonetheless precluded from seeking a remedy in court?

1 2

Partner and Chair (Information Management and Privacy Group). With valued input from my partner, Ian Dick, a frequent collaborator on these difficult issues. In Defamation Law: Materials prepared for the Continuing Legal Education seminar, Defamation Law 2010. Vancouver: Continuing Legal Education Society of British Columbia, 2010 at 3.1.1.

-2These questions are important. Employers faced with outsider defamation scenarios should give them careful consideration and proceed strategically. Too often, contempt for the outsider and sympathy for the employee governs. Too often, employers take seemingly simple steps without appreciating their potential consequences. The discussion below is meant to enable a greater understanding of the relevant issues so employers find the optimal way to manage a very complex problem.
Who is being defamed? Whose interests are most affected?

Defamation is “an invasion of a person’s interest in his or her reputation.”3 Defamation plaintiffs seek vindication through the civil trial process and claim “at large” damages that incorporate subjective, intangible elements.4 Defamation is a personal tort.5 That is, it is a claim based on a wrong to a personal interest rather than a proprietary interest. This characteristic has both legal and practical consequences for employers facing outsider defamation scenarios. Legal consequences. An employer has no standing to sue in defamation for harm done to an employee’s reputation.6 It must allege harm to its own business reputation – a distinct kind of reputation at law.7 Statements made about employees, even if related to their work, will not necessarily defame an employer. Consider, for example, Church of Scientology of Toronto v Globe and Mail.8 The Ontario High Court of Justice struck a claim brought by the Church that alleged it was libeled by the Globe and Mail for its publication of an editorial that included the following statement:
The Ontario Medical Association Counsel said yesterday some of its psychiatrist members were concerned when told Scientologists had been offering passers-by on Avenue Road personality profiles. The psychiatrists felt this constituted practicing medicine without a license.9

The Court held that the Globe’s publication reflected only upon the Church’s individual members and not the Church itself, particularly in light of pleadings that alleged the
3 4 5 6 7 8 9

Walker v CFTO Ltd, 1987 CanLII 126 at 6 (ON CA). Ibid. Bai v Sing Tao Daily Ltd, 2003 CanLII 24013 at para 10 (ON CA).

See Raymond E Brown, The Law of Defamation in Canada, 2nd ed, loose-leaf (consulted on 10 July 2013), (Toronto, Ont: Carswell, 1999) at 18-89. Ibid., at 18-85. [1978] O.J. No. 3281 (Ont HCJ) (QL) (Scientology). Ibid., at para 3.

-3defamation was made “for the purpose of causing the plaintiff [the Church] to be fined, imprisoned or both.”10 The Church’s members needed to sue on their own behalves. Scientology demonstrates that employer standing will not necessarily arise from a simple link between the offending publication and an employee’s job duties; standing is based on the precise meaning of the publication and its affect on an employer’s own reputation. Although this analysis is very nuanced, in Protecting the Reputation of Corporate Personnel, Organs and Associates, Fiona Patfield suggests that employers are more likely to have standing for attacks on employees: 1. 2. 3. in their capacity as corporate personnel or associates; in a way which reflects on the trading reputation of the employer; and in respect of a state of affairs for which the company is in some way responsible.11

With attention to these three categories and by pleading carefully, employers may make a valid claim in defamation for publications that describe the actions of their employees and adversely affect both employer and employee.12 Practical consequences. The existence of legal standing, however, does not mean that it is appropriate or advisable to launch an employer action in defamation, particularly if employer interests and affected employee interests are not highly aligned. An employer may be quite prepared to bring a defamation action in its own name while the one or more employees who have been targeted want no part in an action that risks inviting a trial of their individual reputations. In managing outsider defamation scenarios, employers must develop a strong understanding of the separate interests at stake and be sensitive to the potential for conflict between their employees’ independent interests an their own.
Is there a duty to help? If so, what does that duty entail?

Often, an employer is content to ignore or monitor an outsider’s online activity while affected employees press for any and all legal action necessary to cause the publication to be taken down from the internet. For the reasons described below, in most cases it will be very difficult for an affected employee to establish an employer duty to pursue “takedown” by commencing or supporting a legal action in defamation.

10 11 12

Ibid., at para 6. 18 UW Austl L Rev 203 1988 at 219.

See e.g. Kenora (Town) Police Service v Savino (1995), CPC (3d) 46 (Ont GD) and St Michael's Extended Care Centre Society v Frost (1994), 18 Alta LR (3d) 65 (QB).

-4Indemnification rights in employment contracts and collective agreements typically only contemplate indemnification for the burden of defending claims arising out of employment. A contractual right to funding for commencement of a legal claim would be atypical and would raise public policy issues that are addressed by the prohibition on champerty and maintenance.13 The more likely source of an employer duty to address outsider defamation of employees is the duty to provide a safe and harassment-free workplace. The ease in which this duty will be engaged by outsider defamation was recognized by The Public Service Grievance Board (of Ontario). In Ministry of Community Safety and Correctional Services. The Board dismissed a complaint by managers that alleged an inadequate employer response to disparaging publications on an Ontario Public Service Employees Union blog.14 Vice-Chair O’Neil said:
In general, as a matter of common sense, I accept that a significant stream of disrespect coming from co-workers or those with opinions about the workplace, whether at work, in social situations, or on-line, will likely impact the workplace, often insidiously, because it is hard to measure and any particular example may be fleeting or hard to attribute to any particular author.15

The resulting employer duty, Vice-Chair O’Neil explained, is to take “reasonable steps.”16 She held that the Ministry had taken such steps by issuing joint communication with the union that “laid the foundation” for discipline, following which the offending blog was made password-protected but not taken down. ViceChair O’Neil further held that the Ministry was not required to discipline employees or take any particular action in response to the OPSEU blog. She said:
In respect of providing a harassment-free workplace, it is important to acknowledge that it is not humanly possible to prevent all behaviour that amounts to harassment, defamation or disrespectful behaviour towards employees. There are very real limits to the power of an employer to anticipate and control such behaviour even in the workplace, let alone outside its physical bounds. In recognition of this reality, the law does not make the employer responsible for all actions of its employees that have a negative impact on other employees. In the area of harassment in the workplace, arbitral case law has
13 14 15 16

As discussed in Part 5 (on funding arrangements) below.

Lee v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4672 (ON PSGB) (“Ministry of Community Safety and Correctional Services”). Ibid., para 53. Citing Fleet Industries v International Assn. of Machinists and Aerospace Workers, Local 171 (H. Grievance), [1997] O.L.A.A. No. 791 (M. Picher) (QL) at para 52, Worthington Cylinders v United Steelworkers of America, Local 9143 (Gamba Grievance), [2001] O.L.A.A. No. 649 (Tacon) (QL) at para 150, Ontario Public Service Employees Union (Tardiel) v Ontario (Community Safety and Correctional Services), 2010 CanLII 81917 (ON GSB) at para 132.

-5generally found, in the absence of a contractual provision requiring it to take particular action, that an employer will not be held liable unless it has been negligent or fails to act.17

This forgiving perspective on the “reasonable steps” requirement is important given the difficulty inherent in causing outsiders (who are not subject to employers’ authority) to take down communications from the internet. There are a variety of measures employers can take to support employees who are suffering workplace harms from outside communications short of bringing (or funding) an action in defamation. Providing counseling support or issuing internal, supportive communications, for example, are consistent with an employer’s role and the duty to provide a safe and harassment free workplace. To require employers to pursue a takedown when there are other ways to remedy workplace harms is to suggest that employers have a duty to help employees vindicate their reputations – a duty inconsistent with the personal nature of a defamation claim and a duty that has not been recognized.18
What are the implications of getting involved in the “takedown” process?

Although there is no recognized employer duty to protect an employee’s reputation, many employers feel compelled to take some steps to remove the offending communications from the internet. While such action may sometimes be justified, employers should understand that any degree of involvement in a matter of personal defamation may invite reliance and significant prejudice to affected employees. First, defamation actions are subject to short limitation periods, especially short if the publication can be framed as a publication in a “newspaper” or “broadcast.”19 Employer engagement may engender reliance that causes an employee to miss a limitation period.

17

Ministry of Community Safety and Correctional Services, supra, at para 54. Vice-Chair O’Neil finds that this principle applies notwithstanding the duty in section 25(2)(h) of the Ontario Occupational Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker”: para 67.
18

See Tipple v Canada (Attorney General), 2012 FCA 158 (CanLII) at para 17. (The Federal Court of Appeal awarded Wallace damages for terminating an employee embroiled in public controversy on a not for cause basis without taking steps to protect the employee from reputational harm, but the Court suggests that there is no “free-standing” duty to protect reputation.) See also Canada (Attorney General) v Tipple, 2011 FC 762 (CanLII) at para 76.
19

There are complexities related to the application of limitation periods to internet publications that are beyond the scope of this paper. For an excellent discussion of the issues see David A Potts, Cyberlibel: Information Warfare in the 21st Century? (Toronto: Irwin Law, 2011) at 75-88. See also Shtaif v Toronto Life Publishing Co Ltd, 2013 ONCA 405 (CanLII).

-6Second, employer engagement will likely deprive affected employees of a dedicated, strategic approach to removing the offending publication. Employers most often commit to taking a single step in the takedown process – often by writing a demand on affected employees’ behalves. If a demand is unsuccessful and an employer is unwilling to follow through with legal action, the affected employee’s position will be harmed. Third, employer engagement may invite more backlash than invited by employee engagement. Actions by corporations for defamation are often criticized as improperly motivated and as an unfair exercise of economic might. Although employers may attempt to deflect criticism by framing their actions as being taken for the benefit of employees, such messaging may not be effective and could establish a dangerous precedent.20 Employers ought to recognize that there are significant implications associated with offering assistance with the takedown process and reasons to remain at arms length. Employers that feel compelled to offer some help but that are not prepared to provide full support should consider the reliance their actions will invite. In most cases, agreeing to reimburse the employee for an initial consultation with independent legal counsel is a preferable option.21 Is direct engagement or indirect engagement most likely to lead to a quick and cost effective resolution? If engagement is warranted, the approach should be strategic, with a view to achieving quick and cost effective resolution. Against this objective, employers that have chosen to address outsider disparagement should weigh the merits of engaging directly with the outsider and attempting to achieve takedown through indirect means. Direct engagement with an outsider – ordinarily starting with a takedown demand and a threat of legal action – requires commitment. Very strong engagement from the start might lead to an early takedown and resolution, but if not, employers will face the strong bias against the granting of interlocutory relief in defamation actions.22 Based on
20

We discuss St Lewis v Rancourt, 2013 ONSC 1564 (CanLII) below in addressing the issue of champerty. Note that the University of Ottawa was careful to note the atypical circumstances that led it to offer funding for a professor’s defamation action (at para 15), likely to minimize the precedential effect of its funding decision.
21

Experienced defamation counsel will likely give employees a frank description of the significant risks and personal costs of pursuing a defamation action. See generally Roger D. McConchie and David A. Potts, Canadian Libel and Slander Actions, (Toronto: Irwin Law, 2004) at ch 2 (Defamation Actions to Avoid) and ch 3 (Should you sue?).
22

Anti-discrimination legislation may provide a somewhat more expeditious avenue for relief, but the expression must be proscribed by the applicable statute. In Taylor-Baptiste v Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII), for example, the Human Rights Tribunal of Ontario held that sexist comments made about a manager by a union president and others on a union blog were not

-7judicial respect for a defendant’s freedom of expression and right to trial by jury,23 a court will only provide interlocutory relief if “the words in question are so clearly defamatory and so obviously impossible to justify that the verdict of a jury accepting a plea of justification as a defence would of necessity have to be set aside as a perverse finding on appeal.”24 The restricted availability of interlocutory relief in a defamation action is a significant constraint associated with a direct engagement strategy. Many outsiders are angry, many are mentally ill, many have few assets to risk in a civil dispute and many choose to represent themselves; the incorrigible outsider is a reality. When dealing with such a character, employers must be prepared to back up the threat of action set out in an initial demand with demonstrated action well into the litigation process. This often undermines the “quick and cost effective resolution” objective. Indirect engagement. Attempting takedown by contacting a service provider that is hosting the publication (an “intermediary”) or the police instead of the outsider could lead to a quick and cost effective resolution, but the chances of succeeding with this type of indirect and less confrontational strategy are limited. Intermediary liability in Canada is governed by the common law. An intermediary may be liable in defamation if it is a “publisher” – a concept recently delineated by the Supreme Court of Canada in Crookes v Newton.25 The majority in Crookes held that the publication of a neutrally-worded hyperlink that directs internet users to a defamatory posting is not a defamatory publication itself.26 The majority stressed that an intermediary only should be treated as a publisher if it has “control over both the content and whether the content will reach an audience at all.”27 It remains to be seen how the publication rule crafted by the Supreme Court of Canada in Crookes will apply to the wide variety of internet services provided by intermediaries, though it clearly leaves significant scope for intermediary liability. Intermediaries may
proscribed by the Ontario Human Rights Code, noting (at para 40) “There were no Code-based reverberations in the workplace and the applicant’s principal concern was about the bringing of her personal life into the workplace.” Compare, Perez-Moreno v Kulczycki, 2013 HRTO 1074 (CanLII), where the Tribunal held that an individual violated a manger’s right to be free from discrimination by posting a discriminatory message on his Facebook.
23 24

Holley v Smyth, [1998] 1 ALL ER 853 at 862 (CA Eng).

Canada Metal Co v Canadian Broadcasting Corp (1975), 7 OR (2d) 261 at para 3 (Div Ct), cited recently in Asselin v McDougall, 2013 ONSC 1716 (CanLII) at para 30. But see Henry v Stockhouse Media Corp, [1999] BCJ No 3203 at paras 8 and 13 (SC) (anonymous nature of express weighs in favour of interlocutory injunction) and McLeod (Maslak Mcleod Gallery) v Sinclair, 2008 CanLII 67901 at paras 36-41 (ONSC) (order to post public notice of dispute granted in lieu of takedown).
25 26 27

Crookes v Newton, 2011 SCC 47, [2011] 3 SCR 269 (Crookes). Ibid., at para 25. Ibid., at para 26.

-8therefore react positively to a takedown demand in order to avail themselves of the “innocent publication” defence. The innocent publication defence is available to “subordinate distributors” who can show that they “have no knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel and committed no negligence in failing to find out about the libel.”28 It was recently applied in the context of online disparagement by the Court of Appeal for British Columbia in Carter v B.C. Federation of Foster Parents Association, a case in which the defence failed because the administrator of an online forum did not respond to a takedown demand.29 Carter illustrates that there is a sound legal basis for compelling intermediaries to remove disparaging content from their websites. Regardless, pursuing takedown through an intermediary is a very limited remedy in practice; the offending content may simply migrate to internet sites controlled by other intermediaries, including intermediaries operating entirely outside of Canada. There is no guarantee that addressing an outsider by contacting an intermediary will not lead to a time consuming and expensive exercise of internet “Whac-a-Mole.”30 Another indirect engagement tactic is to contact the police. Though employers often hesitate to seek police assistance in addressing internal matters because police involvement can cause a loss of control over an internal investigation, loss of control is not risk associated with seeking police assistance with an outsider defamation scenario; employers have little control over these matters to start. A warning by the police may also have a significant positive effect. The police, however, are likely to be interested in a limited range of behavior, in part because of the legal context surrounding the two Criminal Code defamation offences. The “simple” criminal libel offence31 has been ruled to be unconstitutional in Alberta,32 Saskatchewan,33 Ontario34 and Newfoundland.35 This has cast such doubt on the validity of the provision that, in 2012, after Fredericton police laid libel charges against a

28 29 30 31 32 33 34 35

Crookes, supra, para 20. 2005 BCCA 398 (CanLII) (Carter). See “Whac-a-Mole” online: Wikipedia <http://en.wikipedia.org/wiki/Whac-A-Mole>. Criminal Code, RSC, 1985, c C-46, s 301. R v Finnegan, [1992] AJ No. 1208 (QB). R v Lucas, 1995 CarswellSask 130 (QB). R v Gill, 1996 CarswellOnt 1314 (Gen Div). R v Byron Prior, 2008 NLTD 80 (CanLII).

-9blogger who made comments about a police officer, the New Brunswick Justice Department dropped the charges with reference to the prevailing case law.36 The “aggravated” criminal libel offence survived a constitutional challenge at the Supreme Court of Canada in 2011.37 It is narrow, however, and proscribes the publication of a defamatory libel that one knows is false.38 Given this context, it is not surprising that criminal defamation charges are rare. The police are more likely to respond to behavior that resembles criminal harassment – knowing or reckless prescribed conduct that causes a person (responding reasonably in all the circumstances) to fear for his or her safety or the safety of anyone known to him or her. The prescribed conduct includes: (a) (b) (c) repeatedly following from place to place the other person or anyone known to them; repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; and engaging in threatening conduct directed at the other person or any member of their family.39

(d)

In light of this definition, police assistance may only be forthcoming in outsider defamation scenarios that are associated with more than mere reputational harm. This is suggested by the Department of Justice’s handbook for police and crown prosecutors, which states, “One of the biggest distinguishing factors in determining whether malicious use of technology consists of criminal harassment in bullying-type cases will be whether the online conduct is merely annoying, or whether it causes the target to fear for his or her physical or psychological safety.”40

36 37 38 39 40

Grant Bucker, “Rare criminal libel charge against Fredricton blogger dropped” (10 May 2012), online: JSource <http://projetj.ca/node/8666>. R v Lucas, 1998 CanLII 815 SCC. Criminal Code, supra, s 300. Ibid., s 264(2).

Department of Justice Canada, A Handbook for Police and Crown Prosecutors on Criminal Harassment, (Ottawa: Department of Justice Canada, 2012) at 19.

- 10 -

Is a funding arrangement appropriate and lawful?

If an employer feels that providing an affected employee with assistance is warranted, it may do so by way of an agreement to fund the employee for some or all of the costs of pursuing an action as an alternative to joint engagement. Proceeding by way of a funding arrangement:    May save time and energy associated with being on the “front lines” of an action May lead to an action that is better framed (i.e., as being about harm to an individual’s reputation) May be perceived more favorably by the public

Employers that are interested in providing employees with funding should be aware of the risks they may face because they are not in direct control over the action and should be aware of their exposure to uncertain and potentially substantial costs. Limitations to support and other protections may be bargained, though it may be difficult to reconcile an employer’s desired limitations and protections with the principle that justifies the employer’s support and with the degree of independence that must be reflected in a lawful funding arrangement.41 The legal restrictions on funding arrangements (under the law of champerty and maintenance) are another reason for employers to be cautious. In St Lewis v Rancourt, for example, the University of Ottawa agreed to fund the legal costs of a defamation action brought by a professor who had issued a report exonerating the University from an allegation of systemic racism and who the defendant referred to in a blog post as the University President’s “house negro.”42 The professor approached the University and said that she “had to sue” the defendant.43 The University gave two reasons for offering the professor its support:  The defendant’s defamatory remarks about the professor were occasioned by work, which she had undertaken at the request of the University and in the course of her duties and responsibilities as an employee of the University; and

41

See Metzler Investment GMBH v Gildan Activewear Inc, 2009 CanLII 41540 (ON SC) (in which Leitch J. objected to various provisions of a commercial funding agreement in light of their impact on the plaintiff’s independence in managing the litigation).
42 43

2013 ONSC 1564 (CanLII). Ibid. (The words “had to sue” are used by the Court at paras 5, 14 and 100.)

- 11  The defendant’s racist attack upon the professor took the case out of the ordinary and created a moral obligation for the University to provide support for a professor in defence of her reputation.44

In dismissing the defendant’s motion to strike the action because it was based on an allegedly unlawful funding arrangement the Ontario Superior Court of Justice noted that the professor would have pursued her action without the University’s support, that there was no agreement that the University would share in the proceedings and that the above-noted purpose for providing support was proper.45 The Court concluded:
...St. Lewis was an employee and made her own decision to commence a libel action to defend her reputation and the University, as her employer, agreed to pay for her legal costs because her reputation was damaged in the course of her employment. I find that the University had a legitimate reason for assisting St. Lewis and there is no evidence that the University agreed to fund St. Lewis’ libel action for an improper purpose or based on an improper motive.46

Providing employer support to employees who are disparaged by outsiders out of a sense of duty (moral or otherwise) is therefore legitimate, though in each case all the circumstances relating to the funding arrangement will be open to judicial scrutiny. A court will exercise this scrutiny with a view to distinguishing legitimate support for access to justice from “officious intermeddling” or “stirring up strife.”47 Assuming the employer has been defamed, is it nonetheless precluded from seeking a remedy in court? An employer that has been defamed by an outsider and who has standing to sue in its own name should consider two particular bases by which an action may still be precluded: (1) preclusion based on the absolute privilege enjoyed by a citizen who elects to criticize government and (2) preclusion based on the Weber doctrine of exclusive arbitral jurisdiction. Government actions. Courts in British Columbia and Ontario have held that statements about a democratically elected government are subject (at common law) to absolute privilege and may not form the basis of a defamation lawsuit.

44 45 46 47

Ibid., para 15. Ibid., paras 86, 93 and 96. Ibid., para 93.

McIntyre Estate v Ontario (Attorney General), 2002 CanLII 45046 (ON CA) at para 27. See Whitcombe v Manderson, 2009 CanLII 72030 (ON SC) for a case in which the Ontario Superior Court of Justice refused to strike a defamation action because it was funded by a Charter-bound and democratically-elected municipal government.

- 12 The most recent and thoroughly reasoned Ontario decision is Halton Hills v Page, in which Justice Corbett explained:
The reason for the prohibition of defamation suits by government lies not with the use of taxes, or with some abstruse theory about the indivisibility of the state and the people who make up the state. Rather, it lies in the nature of democracy itself. Governments are accountable to the people through the ballot box, and not to judges or juries in courts of law. When a government is criticized, its recourse is in the public domain, not the courts. The government may not imprison, or fine, or sue, those who criticize it. The government may respond. This is fundamental. Litigation is a form of force, and the government must not silence its critics by force.48

The British Columbia Supreme Court adopted the same position in declaring that a citizen’s right to receive communications concerning his local government was infringed because his municipality threatened to bring a defamation action against one of its councilors and two rate payers who had objected publicly to the municipality’s actions.49 More recently, the British Columbia Supreme Court struck a defamation action brought by an elected band council in the name of an Indian Act band.50 Matters arising under a collective agreement. Although defamation by “outsiders” will not ordinarily be within the exclusive jurisdiction of a labour arbitrator, employers should be wary that a defamation action against non-employees may be precluded, in some circumstances, as a matter arising under a collective agreement.51 The Ontario Superior Court of Justice, for example, struck a defamation action brought by an employer against a union bargaining agent (a non-employee) for publications she made about working and living conditions at one of its nursing homes.52 It noted that the defendant’s statements were made in the context of collective bargaining and in the course of her duties as a union representative and that the applicable collective agreement contained internal mechanisms for addressing the workplace conditions that were the subject of the offensive communications.53 In this context the Court held that the matter arose out of the applicable collective agreement and was within the exclusive jurisdiction of a labour arbitrator.54

48 49 50 51 52 53 54

Halton Hills (Town) v Kerouac, 2006 CanLII 12970 (ON SC). See also Montague (Township) v Page, 2006 CanLII 2192 (ON SC). Dixon v Powell River (City), 2009 BCSC 406 (CanLII). Wilson v Switlo, 2011 BCSC 1287 (CanLII). Per the exclusive arbitral jurisdiction doctrine articulated Weber v Ontario Hydro, [1995] 2 SCR 929. Caressant Care Nursing & Retirement Homes Ltd v Priest, 1999 CanLII 15053 (ON SC). Ibid., paras 17, 19 and 30. Ibid., para 42.

- 13 The Weber doctrine has also been applied to preclude defamation actions by employees, though the context in each case will govern.55 In Johnston v Anderson, for example, the Court of Appeal for British Columbia treated a group of employees who wrote a derogatory newsletter about a manager as outsiders because they prepared the newsletters on their own time from home and made an attack on the manager that the Court characterized as “personal” rather than work-related.56 In this context the Court allowed the manager’s action to proceed.
Conclusion

The above discussion illustrates the complexities that employers face in addressing outsider defamation scenarios. Although this paper sets out various costs and risks to employer engagement with outsiders and argues that employers likely have no duty to engage, it does not prescribe “tolerance” as the single acceptable strategy nor does it suggest that an employer’s sense of moral duty to employees is misplaced. Employers should treat every outsider defamation scenario in accordance with its context, the relevant moral or ethical imperatives and all the detailed legal considerations set out above. September 4, 2013

55 56

See e.g. Venneri v Bascom, 1996 CanLII 7972 (ON SC) and Richards v Catney, 2005 CanLII 45403 (ON CA).

Johnston v Anderson, 1999 BCCA 66 (CanLII) at paras 2 and 12. (It is questionable whether this judgment is consistent with current notions about the scope of an employer’s duty to provide a safe and harassment-free work environment.)

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