Written on behalf of Peter McSherry
Every person has the right to feel comfortable, respected, and safe in the workplace. When these conditions are not present, individuals may feel devalued in their work, or fearful for their safety.
In Ontario, various safeguards are in place for workers facing harassment at work. Under the provincial Occupational Health and Safety Act, employers must investigate allegations of workplace harassment. If the inquiry substantiates the claims of harassment, the employer or harasser may be disciplined and ordered to put a stop to the behaviour. But what happens if the outcome is reversed and the investigation paints the worker negatively?
Medical resident brings claims of workplace sexual harassment
The Ontario Court of Appeal recently offered commentary on what can happen when an investigation leads to a finding unfavourable to the employee claiming harassment in the workplace.
In Safavi-Naini v Rubin Thomlinson LLP, the appellant, Dr. Safavi-Naini, was a medical resident in the internal medical resident training program at the Northern Ontario School of Medicine (“NOSM”). In 2018, she brought forward complaints of workplace harassment and sexual harassment against two faculty doctors.
Under Ontario’s Occupational Health and Safety Act, an employer is required to investigate any allegation of workplace harassment. Accordingly, NOSM hired Katherine Montpetit, a senior investigator with expertise in sexual violence and sexual harassment investigations with the law firm Rubin Thomlinson LLP.
Appellant hires publicist prior to completion of the investigation
Before the inquiry had begun, the appellant hired a publicist and issued a press release regarding her allegations of sexual harassment. The press release garnered media attention from local, provincial, and national news outlets, including the CBC, CTV, and the Toronto Star.
In court documents, the appellant alleged that she hired the publicist to “try to shame NOSM into conducting a workplace investigation into her allegations.”
Investigator submits inquiry report to employer
Ms. Montpetit, the inquiry investigator, was responsible for submitting a report to NOSM concerning the conduct of the two faculty doctors. In 2019, she submitted her report to the employer, as well as two executive summaries. The summaries included the investigator’s findings that:
- the appellant was not a reliable or credible witness;
- the appellant failed to provide evidence in support of her allegations; and
- the accused doctors hadn’t engaged in workplace sexual harassment.
The executive summaries were not made public, but they were provided to two staff members at NOSM and NOSM’s lawyers. The summaries were eventually filed with the Human Rights Tribunal of Ontario as part of the doctors’ defence to the application made by the appellant to that tribunal.
Appellant brings lawsuit alleging that the summaries were defamatory
In 2021, the appellant sued the investigator and the law firm that the investigator worked for, alleging that the contents of the two executive summaries were defamatory. In response, the defendants moved to dismiss the lawsuit under section 137.1 of the Courts of Justice Act.
The law states that a judge must dismiss a proceeding if they are satisfied that it arises from an expression by a person that relates to a matter of public interest. This law is commonly referred to as “Ontario’s anti-SLAPP law”, with SLAPP standing for Strategic Lawsuits Against Public Participation. Ontario’s anti-SLAPP law was introduced in 2015 to address the growing number of legal claims brought by people attempting to silence or intimidate their critics.
Motion judge dismisses appellant’s lawsuits
The motion judge granted the anti-SLAPP motion and dismissed the appellant’s legal action, finding that:
- the summaries related to a matter of public interest;
- the statements made in the summaries were protected by qualified privilege;
- there was no evidence to support a finding that the investigator acted maliciously; and
- a balancing of the competing interests in play favoured protecting the expression.
Appellant challenges all four of the motion judge’s conclusions
The appellant appealed the decision, contesting all four of the motion judge’s conclusions. The first ground of appeal was that the motion judge erred in finding that the executive summaries related to a matter of public interest.
Citing the test set out by the Supreme Court in 1704604 Ontario Ltd. v. Pointes Protection, the Court of Appeal determined that the summaries did relate to a matter of public interest. The Court held that the public has significant concern over workplace sexual harassment and has an interest in investigations into these issues.
The Court was careful to note, however, that the fact that an expression relates to sexual harassment will not on its own be sufficient to bring it within the scope of public interest. Rather, the Court must take a contextual approach to find out what the expression at issue is really about.
Court cites appellant’s behaviour that demonstrated a desire to make the issue public
In appealing the motion judge’s decision, the appellant argued that the fact that she hired a publicist did not convert the private matter into a matter of public interest. The Court of Appeal disagreed.
The Court found that the appellant’s act of hiring a publicist to shame an educational institution in a small community was not indicative of a desire to keep the matter private. In fact, the publicist’s activities generated publicity across the country. Further, the appellant was quoted in media reports raising the issue of public safety. The Court held that this concern for patient safety in a public institution directly engaged the community’s interest, bringing it within the scope of public interest.
Court of Appeal’s decision clarifies two important issues relating to workplace sexual harassment
The Court of Appeal’s decision, in this case, provides helpful guidance on the law of workplace sexual harassment. First, it confirms that statements made in a legally required workplace sexual harassment investigation can be protected by qualified privilege. Qualified privilege is a defence to a defamation claim that applies where a person has a legal, social, moral or personal duty to publish information and the public has a corresponding interest to receive it.
Second, it highlights some of the contextual factors that can bring a workplace sexual harassment claim into the realm of public interest to dismiss an anti-SLAPP motion.
Contact Peter A. McSherry Employment Lawyer for advice on claims of harassment in the workplace
Sexual harassment, discrimination, or any other human rights violation in the workplace can have devastating impacts on an individual. The experienced employment law team at Peter A. McSherry in Guelph helps clients evaluate their options and pursue the resolution that best compensates them for their pain and damages. For advice on your workplace harassment or discrimination claim, get in touch with us online or by phone at 519-821-5465.