Calgary Workplace Investigations

Need to be Warned

The complainant should be cautioned that the allegation of unfair conduct must be made in good faith. It may or may not succeed which is acceptable. That being said, it cannot be made in bad faith and if so, it will lead to a possible claim in defamation against the complaining party.

Generally speaking, an assertion of wrongdoing made in the context of a workplace relationship will not give rise to a claim of defamation, presuming that the complaint, even though proven later to be unfounded, has been made on good faith.

This is due to the defence of “qualified privilege” which will deny any liability in this context.

However, if it is proven that the allegations were made maliciously, this defence will not succeed and the complainant will be exposed to a claim for defamation, as discussed in the cases which follow.

Alberta Court of Appeal

Such was the finding in an Alberta case which was concluded in the Alberta Court of Appeal. The trial was before a jury. ¹.

The two personal female defendants had made claims of sexual harassment. The jury believed that they had each acted maliciously, hence depriving them of the defence of qualified privilege. The defamation claim against them succeeded at trial.

The sums of $50,000 and $10,000 were awarded against them.

This pointedly leads to the need to provide to the complainants the need for appropriate cautionary advice prior to the making of a complaint.

Saskatchewan Court of Appeal

The same issue was raised in a case in Saskatchewan. Dr. Rubin was the former Director of the Veterinary Teaching Hospital at the University of Saskatchewan who successfully sued the union representatives who had represented the interests of a Ms. Bowman.

Ms. Bowman had won an initial grievance based on sexual harassment by which she was reinstated. Dr. Rubin had been supportive of her in this process and was at no time accused of wrongdoing.

Due to certain issues on her return to work, a second grievance was filed. It was this grievance which led subsequently to the civil action brought by Dr. Rubin and the defence of qualified privilege. The grievance filed by the union incorrectly asserted that Dr. Rubin had been found responsible for the harassment of Ms. Bowman. The union submitted in the same grievance that it had previously requested his termination.

The Court of Appeal found that on this issue, the union had exceeded its mandate and gone ² beyond that which was necessary to fulfill its duty and for this reason, the defence of qualified privilege was denied. ³

The appellate court also disagreed with the provisional award of damages made at trial of $25,000 and increased this award to $100,000.

Ontario Superior Court

A similar successful defamation claim was heard by the Ontario Superior Court in 2021, also accompanied by a wrongful dismissal remedy. ⁴

The details of the defamation claim were based on a statement made before the local town council and one other person, Zeggil. The essentials of this claim were that the plaintiff traded “sex for grades” and that Ms. McGraw engaged in inappropriate behaviour; that she texted inappropriate pictures of herself to other firefighters; that the fire department was not being respected because of Ms. McGraw’s conduct; and that Ms. McGraw’s conduct was letting down those who put the fire department uniform on in the past and carried themselves professionally.

The trial judge found that these statements were untrue and “would tend to lower the reputation of Ms. McGraw in the eyes of the community.” The judge accepted the defence submission that these statement were made on occasions of qualified privilege. The issue then became whether these words were issued with malice, to overcome this defence.

Malice will arise where the defendant makes a defamatory statement, “knowing it is false, or having no reason to believe it is true, or with reckless disregard of whether it is true or false”. The words in particular referring to “sex for grades” were seen as extreme. In addition, the discriminatory nature of the comments gave further weigh to this argument:

[239]   I have reviewed many of the examples in Professor Brown’s text and find by comparison that the statements here, particularly the “sex for grades” comment, are extreme and go far beyond what was necessary or appropriate for the occasion. The discriminatory nature of the comments and the discriminatory nature of Mr. Milliner’s purpose for relating them are also factors which I have considered in concluding that the qualified privilege is defeated.

The court spoke of the need to temper the damage assessment for the defamation claim, given the overlap of damages for discrimination and aggravated damages. The judge went on to note, that absent the awards of moral damages and discrimination, a higher award would have followed.

The court did award $75,000 for aggravated damages, $35,000 for a human rights violation and $60,000 in punitive damages.

Calgary Workplace Investigations provides impartial and legally sound workplace investigations for employers across Alberta.
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1. Alberta Court of Appeal in Elgert v Home Hardware
2. The defence of absolute privilege, based on the same theory as that of civil pleadings in the grievance process, was denied at trial and on appeal
3. Rubin v Ross, a decision of the Saskatchewan Court of Appeal set aside the trial decision dismissing the action. .  Application for leave to appeal dismissed.
4.  McGraw v Southgate OSC Oct 2021