Defamation for Unfair Allegations of Sexual Harassment

Need for Malice

An action for defamation may follow against the makers of the allegations of sexual wrongdoing in the workplace. In such a case, the accusers will be shielded by the defence of qualified privilege, which can only be defeated by the plaintiff proving that the allegations have been made with malice. ¹.

In the above case the claim against the personal defendants succeeded at trial as the jury believed that they had each acted maliciously, hence depriving them of the defence of qualified privilege. This pointedly leads to the need to provide to the complainants the need for appropriate cautionary advice prior to the making of a complaint. The sums of $50,000 and $10,000 were awarded against them.

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

This issue is also reviewed here.

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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. It also disagreed with the provisional award of damages made at trial of $25,000 and increased this award to $100,000.  Application for leave to appeal dismissed.