This issue arose recently in a case in which the party who had complained of workplace abuse was dissatisfied with the consequential investigative report and sued the investigative firm for defamation. The case raised two issues, one being the submission of protection by the statute below and secondly, the defence of qualified privilege, discussed above.

The Ontario Courts of Justice Act was amended by the Protection of Public Interest Act to allow the defendant to assert that the matters in controversy were an expression relating to a matter of public interest.

Should the defendant succeed in showing this, the plaintiff then takes on the task of demonstrating that the case has substantial merit, the defendant has not a valid defence. The plaintiff must then show that when weighing the two factors of the public interest in proceeding with the case, this issue trumps the public interest in protecting the expression being contested. It is this final assessment that is the “fundamental crux of the analysis”. ¹

The first step is to determine what is a matter of “public interest”? To this question, the Supreme Court offered a test which allowed a “broad interpretation”. The issue must be examined “as a whole” and the question posed must be whether “some segment of the community would have a genuine interest in receiving information on the subject”.

In the case in question, the plaintiff was a person who had complained to her employer, accusing certain staff members of the hospital where she was employed as a medical resident of abusive conduct. The defendants were investigators hired by the employer to examine the complaint under the Occupational Health and Safety Act and had prepared Executive Summaries detailing the results of the investigation. The plaintiff had sued for defamation.

The case was dismissed on the first application after which the plaintiff appealed. The Court of Appeal noted as a general principle that while the public normally would have interest in sexual harassment and workplace harassment generally, this alone would likely not suffice to show the case within the sphere of public interest. ²

This being said, the appellate court noted that the correct approach is a contextual one to “determine what the expression at issue is really about”. The plaintiff herself had hired a publicist who had succeeded in bringing public attention to this cause. The court also noted that the employer was a public body, in addition to the media coverage and also the “public safety concerns”.

In the media reports generated by the plaintiff, she had noted patient safety issues, which the court concluded engaged community interest.

A matter of public interest was found. The balancing of interests was found to be a hopeless cause. The initial decision was upheld and the claim was dismissed.

The Court of Appeal did note that not every investigation of such a nature would necessarily lead to the public interest defence. That being said, there is little doubt that the normal report prepared by the investigator will be completed under the protection of qualified privilege, absent malice. This is over and above any issue of solicitor-client privilege.