Defamation claims made in an employment context have seen increasing use in recent years.

The Alberta Court of Appeal upheld the trial judge’s finding of liability and $60,000 damages in a defamation plea. This action was accompanied by a termination claim. ¹ The defamation claim was based on the contents of a letter sent by the employer to various businesses in the Grand Prairie community. It read as follows:

Dear Customer, As of September 2, 2009 Troy Thibert is no longer employed with Alberta Computers. We regret Troy Thibert’s decision to leave, but wish him well in any future endeavors. It has, however, come to our attention that he has approached many of our clientele, which is a breach of fiduciary trust and as such our lawyers are issuing him a cease and desist letter. We are sending you this letter to inform you that Troy is legally obligated under common law to cease all services and solicitation with you as a client.

The Court of Appeal decision provided a review of the elements of such a claim. The words must be shown to “tend to lower the claimant’s reputation in the eyes of a reasonable person”:

The elements for defamation are set out in Grant v Torstar Corporation, 2009 SCC 61, para 28, [2009] 3 SCR 640: that the words communicated: (a) are defamatory, in the sense they would tend to lower the claimant’s reputation in the eyes of a reasonable person; (b) refer in fact to the claimant; and (c) were published, meaning that they were communicated to at least one other person. Torstar was subsequently affirmed in Bent v Platnick, 2020 SCC 23, 449 DLR (4th) 45.

In this instance, the message did refer to the plaintiff, and the letter was published, in that it was communicated to at least one other person. ²

As to the first branch of the test, the trial judge noted:

247   ... Viewed objectively, these statements would tend to lower Mr. Thibert’s reputation in the eyes of a reasonable person. Indeed, there was evidence at trial that Mr. Nagel had concerns about Mr. Thibert’s character as a result of the September Letter. I agree that the “sting” of the statements in the September Letter was to suggest Mr. Thibert was untrustworthy and unethical. The first element is satisfied.

The defences of justification and qualified privilege were each dismissed at trial:

As to whether there were any defences available to Alberta Computers and Pope from the ‘sting’ of the defamation, the trial judge rejected the defence of justification based on truth and fair comment. The allegations that Thibert had committed a “breach of fiduciary trust” and that he was “obligated under the common law to cease all services and solicitation with you as a client” were untrue and were not identifiable as reasonably grounded opinion. As such, the defence of justification did not apply. [34]           The trial judge next rejected qualified privilege, finding there was no duty to communicate the letter, a corresponding duty to receive it, nor a “special relationship” between Alberta Computers, Mr. Pope, and the recipients of the September letter that would ground the defence of qualified privilege. She concluded that a duty, if one existed, had been exceeded in the circumstances. The court at trial also considered the impact of this letter upon the plaintiff’s attempt to commence his own business:

The trial judge was persuaded that Pope and Alberta Computers were jointly and severally liable for the defamation and assessed a global award of $60,000, based in part on her finding that Thibert’s business prospects had been prejudiced. She was persuaded that Thibert’s unsuccessful effort to start Snap Technologies was attributable to the September letter. She accepted that Thibert “lost business opportunities and the ability to get traction in starting a new business due to Mr. Pope’s actions in having the letters sent and which besmirched his reputation in the community”. She added:

276   Based on the evidence before me, I conclude that the September Letter was sent out in an effort to prevent Mr. Thibert from obtaining clients in the Grande Prairie area and to ensure he could not compete with Alberta Computers. In implying that Mr. Thibert was untrustworthy and unethical, and in stating that he had acted contrary to his obligations and the law, Mr. Pope and Alberta Computers’ conduct in sending the September Letter was egregious.

The Court of Appeal upheld the liability finding and the damage assessment:

As pointed out in Hill v Scientology, there is little to be gained by trying to compare damage awards as between defamation cases. The appellants’ factum and their oral submissions on the subject of damages are laconic. In our reading of the trial judge’s reasons, she did not double count damages by referring to the impact of the defamation on the ability of Thibert to start a business. It is not easy to calculate the value of one’s good name, and trial judges are usually forced to make a reasonable estimate. We see no reason to dispute her quantum assessment. This ground of appeal is also dismissed.

A similar successful defamation claim was heard by the Ontario Superior Court in 2021, also accompanied by a wrongful dismissal remedy. ³

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.

The issue of the overlap between respective awards appears to be contrary to the Court of Appeal decision in Strudwick on this issue, as discussed above.

A similar defence of qualified privilege was raised unsuccessfully in an Alberta case in 2011. ⁴ The trial judge had found that the two female complainants asserting sexually harassing conduct against the plaintiff were acting maliciously. A damage assessment was made of $60,0000 at trial. The Court of Appeal believed this sum to be high, yet not sufficient to warrant appellate intervention.

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 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 ⁵ beyond that which was necessary to fulfill its duty and for this reason, the defence of privilege was denied. ⁶

It also disagreed with the provisional award of damages made at trial of $25,000 and increased this award to $100,000.  ⁷