CCPartners | Blog

Workplace Investigation Mandated by OHSA not Defamatory Says Ontario Court of Appeal

The Ontario Court of Appeal in Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 8 recently upheld the dismissal of a defamation action under section 137.1 of the Ontario Courts of Justice Act (“CJA”).

Facts

The Appellant was an internal medicine resident at the Northern Ontario School of Medicine (the “NOSM”). She alleged workplace harassment and sexual harassment against NOSM’s North Bay site director and a NOSM faculty member (the “Respondents”). An investigation was commenced as required under the Occupational Health and Safety Act (“OHSA”). An external, senior investigator with expertise in sexual violence and sexual harassment investigations was retained to investigate the Appellant’s allegations.

Upon completion of the investigation, the investigator submitted her written report, which included two Executive Summaries, to NOSM and its lawyers. The Executive Summaries provided that the investigator preferred the two Respondents’ versions of events over the Appellant’s and found no sexual harassment or breaches of NOSM policy in the circumstances. NOSM provided these summaries to the Appellant and the two Respondents. These summaries were not publicly disseminated but were filed with the Human Rights Tribunal of Ontario (“Tribunal”) as part of one of the Respondent’s defense to the Appellant’s Application to the Tribunal. The allegations also came into the public eye as a result of the Appellant issuing a press release.

The Appellant commenced an action against the Respondents, the investigator and her law firm, claiming the Executive Summaries were defamatory. In response, a motion to dismiss the action was brought pursuant to section 137.1 of the CJA, which deals with the dismissal of a proceeding that limits freedom of expression as it relates to public interest issues.

Lower Court’s Decision

The Motion Judge at the lower court granted the motion and dismissed the Appellant’s action. The court found that (1) the Executive Summaries related to a matter of public interest, (2) this was a situation of qualified privilege because NOSM was entitled to receive frank communication about an important topic from the investigator it hired to perform the investigation, (3) there was no evidence to support a finding of malice on the part of the investigator, and (4) a balancing exercise undertaken by the Court favoured protection of the investigator’s freedom of expression.

The Appellant, in turn, appealed all four of the Motion Court’s findings to the Ontario Court of Appeal.

Court of Appeal’s Decision

With respect to the first finding, and with reference to the decisions in Grant[1] and Sokoloff,[2] the Court found that the Executive Summaries related to matters of public interest - workplace and sexual harassment and the public safety concerns these issues invoke - which had garnered media attention as a result of the Appellant’s press release.

Regarding the Motion Judge’s second finding, the Court relied on the reasoning in Bent[3] to find that pursuant to section 32.0.7(1)(b) of OHSA, NOSM and the investigator were protected under qualified privilege as the investigator had a legal duty to investigate allegations under its retainer agreement and to prepare a report for NOSM. NOSM, in turn, had a legal duty to provide, in writing, the results of the investigation to the complainant and her alleged harassers.

In terms of the third challenged finding, the Court found no evidence of malice.

Lastly, in balancing the investigator’s freedom of expression with any harm suffered by the Appellant, the Court found that the public interest in the investigator’s freedom of expression outweighed any harm suffered by the Appellant.

The Appeal was accordingly dismissed.

Takeaway

This case establishes that employers have a legal defense of qualified privilege when it comes to defamation claims involving the dissemination of an investigation report or its findings to appropriate parties, as is statutorily required under the OSHA. However, a distinction may be made in future case law as to whether this privilege extends to other investigations not conducted under statutory compulsion. 

The team at CCP can answer all your workplace investigation questions as well as provide experienced, external workplace investigators to conduct sensitive investigations on behalf of employers.

Click HERE to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.