In Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86, the Court of Appeal for Ontario (OCA) upheld the dismissal of a defamation action under s. 137.1 of Ontario’s Courts of Justice Act (CJA). The decision provides guidance on: (1) the circumstances in which workplace investigations will be considered “matters of public interest” worthy of protection by the CJA’s anti-SLAPP provisions; and (2) when an investigator’s report may be subject to legal privilege. SLAPP suits (Strategic Lawsuits Against Public Participation) are actions brought by persons who have been publicly criticized to silence or intimidate their critics.

Background

The appellant was a medical resident in the internal medicine training program at the Northern Ontario School of Medicine (NOSM) (Appellant).  The respondents are a senior investigator with expertise in sexual violence and sexual harassment investigations with the law firm Rubin Thomlinson LLP (Investigator) and Rubin Thomlinson LLP (Respondents). 

The case arose from a medical resident’s complaint of workplace harassment and sexual harassment. In 2018, the Respondents were retained by NOSM to investigate the Appellant’s complaints, which primarily concerned the North Bay site director of NOSM’s internal medicine program (Director), but also concerned a NOSM faculty member (Faculty Member).

The inquiry was required under the Occupational Health and Safety Act (OHSA).  The Investigator was responsible for preparing a report for NOSM (Report).  

Prior to the inquiry’s commencement, the Appellant hired a publicist and issued a press release.  As a result, her allegations were seen by the public, in the press and other media.

On March 14, 2019, the Investigator submitted to NOSM the Report and two Executive Summaries (Summaries) concerning the conduct of the Director and the Faculty Member.

The Summaries form the basis for the Appellant’s underlying defamation action. 

• With regard to the conduct of the Director, the Summaries stated the Appellant did not provide a detailed interview or evidence in support of her allegations, and she was not a credible or reliable witness.  They concluded that that the Director did not behave in the manner alleged by the Appellant, sexually harass her, or otherwise breach NOSM policy.
• With regard to the conduct of the Faculty Member, the Summaries again provided that the Appellant did not provide a detailed interview or evidence in support of her allegations.
• The Summaries then addressed each allegation separately:
  • With regard to the Appellant’s allegation that the Faculty Member entered into a bet with the Director to “loosen up” the Appellant, the Investigator found that there was no bet. 
  • With regard to the Appellant’s allegation that she entered into a sexual relationship with the Faculty Member, the Investigator concluded that, based on the evidence, the Appellant was flirting with him and they did not have a romantic relationship.
  • With regard to the Appellant’s allegation that the Faculty Member shared sexually explicit conversations with the Director, the Investigator concluded that this may have been discussed in the context of the Appellant’s performance and, therefore, it would not have been inappropriate or outside of their supervisory duties.

The Summaries were provided to two staff members at NOSM and NOSM’s lawyer. The Director and the Appellant received the summary pertaining to the Director, but only the Faculty Member received the summary that pertained to him. The Summaries were not publicly disseminated; however, they were filed with the Human Rights Tribunal of Ontario (Tribunal) as part of the Director’s defense to the Appellant’s application to the Tribunal. 

In March 2021, the Appellant commenced an action against the Respondents alleging that the Summaries were defamatory.

In response, the Respondents brought a motion to dismiss the action pursuant to s. 137 of the CJA, which provides: 

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party's expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

Decision of Motion Judge

The motion judge granted the motion and dismissed the Appellant’s defamation action. He held:

• The Summaries related to a matter of public interest;
• This was a situation of qualified privilege because of the social utility of NOSM receiving frank communication about an important topic;
• There was no evidence to support a finding of malice against the Investigator; and
• A balancing exercise favoured protection of the expression.

OCA Decision

The OCA dismissed the Appellant’s appeal of each of the motion judge’s conclusions.

The s. 137.1 CJA Test

The OCA commenced its reasons with a review of the following s. 137.1 CJA test, recently developed by the Supreme Court of Canada (SCC):

• The threshold burden is initially on the defendant to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest;
• Once this burden is met by the defendant, the onus shifts to the plaintiff to satisfy the judge that:
  • there are grounds to believe the proceeding has substantial merit and the moving party has no valid defense, and
  • the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression.
• If the plaintiff cannot satisfy the motion judge as required above, the s. 137.1 motion will be granted and the underlying proceeding will be dismissed.

The OCA noted that, in establishing this framework, the SCC emphasized the importance of recognizing that the purpose of the final weighting exercise is to optimize “balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest.”

Analysis of Each Ground of Appeal

Next, the court considered each one of the Appellants grounds for appeal:

1. Did the motion judge err in finding that the Summaries related to a matter of public interest?

The OCA concluded that it was obvious that the Summaries related to a matter of public interest because of: 

• The nature of NOSM as an educational institution;
• The media attention garnered; and
• The public safety concerns arising from the allegations.

The OCA also emphasized that the Appellant’s efforts to publicly “shame” a public institution and her statements in media reports that she was concerned about patient safety in a public institution, made the matter of public interest:

The act of retaining a publicist to assist in an attempt to “shame” a public education institution in a relatively small community is the antithesis of trying to keep the matter private.  Moreover, the news release circulated by the publicist was successful; it provoked news coverage from national, provincial, and local media, including CBC, CTV, Post Media, the Toronto Star, and the North Bay Nugget.

Further in these media reports, [the Appellant] raised the issue of public safety. In the North Bay Nugget article, she acknowledged the patient safety concerns surrounding her allegations, stating that these matters “affect patient care every day”. The concern for patient safety in a public institution is not a private matter. It directly engages the interest of the community and is indicative of why the Executive Summaries are within the scope of the public interest.

2. Did the motion judge err by concluding that the Respondents’ Summaries were protected by the defence of qualified privilege?

The OCA concluded that the motion judge did not err by concluding that the Respondents’ Summaries were protected by the defense of qualified privilege.  The court noted:

• The Respondents were retained to investigate allegations of workplace harassment and to prepare investigation reports for NOSM, as required under OHSA.   
• Pursuant to OHSA, NOSM had a legal duty to provide, in writing, the results of the investigation, and any corrective action taken, to the complainant and her alleged harassers.
• The SCC recently said that qualified privilege exists “if a person making a communication has an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or duty to receive it.” The Respondents had a duty to NOSM to complete the investigation and to provide their Report to NOSM, and NOSM had a corresponding interest or duty to receive it. The Respondents’ provision of the Summaries to NOSM falls squarely within “qualified privilege.”

3. Did the motion Judge err in finding that there was no evidence to support a finding of malice against Ms. Montpetit?

The OCA found that there was no basis to interfere with the motions judge’s finding that there was no evidence to support a finding of malice against Ms. Montpetit. 

4. Did the motion judge err in finding that a balancing exercise favoured protection of the expression?

The OCA found that given its conclusion on the first three issues, it was obvious that the Appellant’s submissions regarding the balancing exercise could not succeed.

Bottom Line for Employers

Rubin Thomlinson is an encouraging decision for employers and workplace investigators alike.  It provides comfort that if, after an investigator is engaged by an employer to conduct an investigation of a workplace complaint as specifically mandated by legislation, the complainant alleges that they were defamed by the investigator, the following defenses will be available: 

• Because the investigator’s work product (i.e., their findings and report) is protected by qualified privilege, the complainant’s defamation action should be dismissed; and
• If the workplace investigation is a “matter of public interest,” the investigation can be protected under CJA’s anti-SLAPP provisions.