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Appellate Litigation

We have previously written about defamation cases involving individuals who had posted their opinions of various businesses and were subsequently sued for defamation, only to have the defendant seek a dismissal on the basis of issues pertaining to the public interest. 

In  Zoutman v. Graham, for example, the owner of a medical clinic brought a claim against a person who had posted several negative comments to the doctor’s page on a popular medical practitioner rating site, having never been a patient. His rating of the doctor was based on the doctor’s actions as an expert witness in a medical malpractice trial regarding the death of the poster’s brother. The poster had claimed his comments were a matter of public interest, but the Court found that the harm to the public interest in allowing the comments to remain when the poster had never been a patient of the doctor’s outweighed the public interest of allowing the comments to stand. 

In a more recent case, the Court of Appeal had to consider whether reviews of an employer posted online by a former employee constituted a matter of public interest. The decision could have an impact on public postings by employees, and the sites that host such comments, going forward. 

Employee Posts Anonymous Public Comments About Former Employer

Glassdoor, the defendant, is a popular site based in California where current and past employees of a company can post publicly about various aspects of their employment, from salary to benefits, to the overall working environment. These reviews are commonly read by job seekers and employees alike to prepare for interviews or in-company role changes, negotiate employment contracts, and decide on where to apply for roles. 

In 2019, an anonymous former employee known as John Doe posted a negative review of his former employer, the plaintiff, a company that provides storm solutions for municipal, commercial, and industrial use. Doe had been with the company for less than a year, and his review contained claims that the company’s employees were underpaid, lacked orientation, and were overworked.  

Employer Commences Defamation Action after Attempts to Remove the Review Fail

The plaintiff objected to the review in early 2020 by contacting Glassdoor. In accordance with Glassdoor’s internal practices for when an employer objects to a review, the defendant contacted Doe and asked him to reconfirm his statements. He failed to do so, and so his review was removed from the site. In April 2020, Doe posted a second review of the plaintiff’s business, which made similar claims to the first review but included more specific details. The plaintiff once again objected, but the review remained public on the site. 

In response, the plaintiff brought a claim against Glassdoor for defamation. Glassdoor filed an application to have the matter dismissed under s. 137.1 of the Courts of Justice Act, otherwise known as the ‘anti-SLAPP’, or the Strategic Lawsuits Against Public Participation clause. 

Are Anonymous Public Reviews of an Employer a Matter of Public Interest? 

When assessing whether the review posted by Doe was a matter of public interest, the Court looked to a previous decision of the Supreme Court of Canada, 1704604 Ontario Ltd. v. Pointes Protection Association, for guidance. Based on this 2020 decision, the Court ascertained that to qualify as a matter of public interest, the comments must relate to something about which “a segment of the community would have general interest in receiving the information”. 

The Court also looked to comments from the Ontario Court of Appeal in Grist v. TruGrp Inc., which held that statements or comments pertaining to the public interest include comments aimed at “maintaining peaceful relationships between persons in society and in drawing attention to acts of injustice” and that comments related to private disputes between individual parties and which “have no immediate bearing on the rights or obligations of others – can seldom be a matter of public interest”. 

Glassdoor argued that the ability for employees to speak freely and anonymously about their experience at a workplace without the threat of repercussion is a matter of public interest, but the Court disagreed, saying:

The statements by John Doe and facilitated by Glassdoor speak to an issue that is between [the Plaintiff] and the defendants, rather than the customers of [the Plaintiff] and would not give rise to a matter of public interest.

Interest to Potential Employees Not Sufficient to Reach Public Interest Threshold, Court of Appeal Rules

In appealing the decision, Glassdoor claimed that the employee review was not limited to a dispute between two parties. Rather, the statements in the review were of specific interest to a segment of the population, i.e. potential employees of the business. As part of the job search process, having insight into existing or former employee experiences can help guide employees towards employers who would align with their needs or steer them away from employers who may not. 

However, the Court of Appeal disagreed. The Court stated that the determination of whether an expression relates to a matter of public interest is a question of mixed fact and law, and as such, a high level of deference is owed to the motion judge unless Glassdoor could establish the judge had made an error of law or fact. Glassdoor was not able to demonstrate such an error, and so the Court of Appeal declined to intervene. 

Commenting further on the issue of public interest, the Court noted that the issues the employee had commented on, namely salary, benefits, and the workplace infrastructure, reflected a private dispute between the employee and the employer. Since the company was not in the business of providing services to the public, there was no sufficient public interest in the comments. While the Court did not definitively say that employee reviews were never a matter of public interest, it would seem a difficult threshold to meet. This decision could impact how sites such as Glassdoor operate in Ontario, and the ability of employees to publicly comment on workplace conditions, going forward. 

For Exceptional Representation in Defamation Matters, Contact the Litigation Lawyers at Milosevic & Associates in Toronto 

If you are an individual or organization and believe that defamatory comments have been made about you in the media or online, or if you have been accused of making defamatory statements, contact the highly knowledgeable defamation, libel and slander lawyers at Milosevic & Associates as soon as possible.  Our experienced team of skilled litigation lawyers will make it a priority to immediately protect you, your reputation, and your livelihood. To find out how we can assist you, call us at 416-916-1387 or contact us online.