In Safavi-Naini v Rubin Thomlinson LLP [Savafi-Naini], the Ontario Court of Appeal (the “Court”) upheld a motion judge’s dismissal of a defamation action brought by the complainant in a workplace investigation against the investigator. In doing so, the Court confirmed that investigation reports may be protected from defamation claims by the defence of qualified privilege.
In 2018, the Northern Ontario School of Medicine (“NOSM” or the “Organization”) engaged law firm Rubin Thomlinson LLP (the “Firm”) and senior investigator KM of the Firm (collectively, the “Investigators”) to investigate allegations of workplace harassment and sexual harassment brought by Dr. Anahita Safavi-Naini (the “Complainant”), a medical resident, against two other doctors affiliated with the Organization. The investigation was commenced pursuant to NOSM’s statutory duty to investigate incidents or complaints of harassment under the Occupational Health and Safety Act (“OHSA”).
In March 2019, the investigation concluded, and the Investigators submitted a final report and two executive summaries to NOSM (the “Summaries”). The Summaries included the Investigators’ findings that the Complainant’s allegations were not substantiated, in part because the Investigators did not find the Complainant to be a credible or reliable witness.
While the Summaries were not publicly disseminated, they were filed with the Human Rights Tribunal of Ontario as part of as part of a defence to an application that the Complainant had made related to her allegations.
Prior to the launch of the investigation, the Complainant hired a publicist and issued a press release, which ultimately resulted in her allegations being seen by the public, in the press and other media. The Complainant’s evidence was that she had issued the press release to “try to shame NOSM into conducting a workplace investigation”.
In March 2021, the Complainant commenced an action against the Investigators, alleging that the Summaries were defamatory. In response, the Investigators brought a motion to dismiss the action pursuant to section 137.1 of the Courts of Justice Act, which permits the dismissal of actions where the litigation arises out of an expression made on matters of public interest.
The motion judge granted the motion and dismissed the Complainant’s action, finding that:
- the Summaries related to matters of public interest;
- the Summaries are protected against the Complainant’s defamation claim by the defence of “qualified privilege”;
- Note: Qualified privilege is a legal defence that comes into play in circumstances where the person making a communication has an interest or duty (legal, social, moral or personal) to publish the information in issue to a recipient who has a corresponding interest or duty to receive it. It recognizes that certain situations require the free flow of information between parties who have a legitimate need to know.
- the Investigators did not act maliciously in publishing the Summaries; and
- Note: A finding that a person was motivated by malice in publishing a communication can undermine their defence of qualified privilege, as it weakens the argument that they had a legitimate reason or duty to share that information.
- a balancing exercise favoured protection of the Summaries—that is, the public interest in protecting the Summaries outweighed any harm caused to the Complainant by their publication.
All four of the motion judge’s conclusions were challenged by the Complainant.
On appeal, the Court unanimously upheld all four of the motion judge’s conclusions.
The Court confirmed that the subject matter of the Summaries related to matters of public interest. The Court noted that the public has “significant concern” over sexual harassment, workplace harassment, and investigations into these issues. While the mere fact that an expression relates to sexual and workplace harassment, on its own, will often be insufficient to bring it within the scope of public interest, in this case, public interest in the Summaries was engaged in light of factors such as the media attention garnered by the Complainant’s press release, the nature of NOSM as an educational institution, and public safety concerns arising from the Complainant’s allegations.
The Court also confirmed that qualified privilege applied to the Summaries. In making this finding, the Court considered that the Investigators were operating pursuant to the Organization’s obligations under the OHSA to ensure that allegations of harassment are investigated and that the results of the investigation, and any corrective action taken, are communicated in writing to the Complainant and her alleged harassers. In other words, the Investigators had a legal duty to NOSM to complete the investigation and to provide their reports and the Summaries to the Organization, and the Organization had a corresponding interest or duty to receive them.
The Court agreed with the motion judge that there was no evidence to support that the Investigators—who are independent of NOSM, the Complainant, and the respondent doctors to the Complainant’s allegations—acted maliciously in publishing the Summaries.
The Court found that its findings on these three issues made it “obvious” that the Complainant’s challenge regarding the balancing exercise could not succeed.
Takeaways for Employers
The Court’s decision in Savafi-Naini provides key lessons for employers embroiled in workplace investigations. In particular, Savafi-Naini offers insights into the application of defences available to investigation reports, such as qualified privilege, which can be valuable in defending against defamation claims. In this specific case, the investigation was statutorily required, making it clear that the investigator and the engaging organization had a reciprocal legal duty between them in publishing and receiving the findings of the investigation. However, it remains uncertain whether courts will extend this privilege to investigations that are not specifically mandated by law.
The decision also serves as a good reminder for employers to exercise caution regarding the potential public exposure of workplace misconduct allegations. In this case, the Complainant had hired a publicist and issued a press release about her allegations, resulting in significant media attention and reputational harm to the Organization. Employers should proactively manage communication and media relations in sensitive cases.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.