In the context of s.137.1 of Courts of Justice Act, R.S.O. 1990, c. C.43, anonymous employee review on a public website about workplace issues may well be a matter of public interest. But in every case, the burden is on the moving party to establish that its expression relates to a matter of public interest. Whether an expression relates to a matter of public interest is determined by consideration of the particular expression in question, not the topic of that expression - Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391
Section 137.1 motion for defamation action for a bad employee review
In Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, an anonymous person left a negative review about his employer, the respondent, on the appellant Glassdoor Inc.’s website. Glassdoor hosts anonymous reviews of employers by current and former employees. The respondent sells stormwater solutions technology for municipal, commercial and industrial use and is based in Markham. The respondent brought an action for defamation against the respondent and against the anonymous poster, named as John Doe in the action. Glassdoor responded with a motion seeking dismissal of the action under s.137.1 of Courts of Justice Act, R.S.O. 1990, c. C.43 on the grounds that the action was an attempt to limit its freedom of expression on a matter of public interest.
The motion judge concluded that the statements made by John Doe were not related to a matter of public interest since they were confined to the salaries and working conditions of the respondent. The motion judge characterized the posts as a private grievance. Glassdoor appealed the judge’s decision.
Court of Appeal Decision
The appellant argued that this was a workplace review and not a private dispute between the parties. In the appellant’s view, employee reviews of employers left on a public site were of public interest. The appellant argued that the motion judge had erred by making a qualitative assessment of the expression since he criticized the fact that it was an anonymous review. These positions were rejected by the Court of Appeal.
The Court explained that on a 137.1 motion the question is whether a segment of the community would have a genuine interest in receiving information on the subject. Though a matter that is of interest to some members of the public, is not necessarily a matter of public interest for s.137.1 (para 4).
The Court, emphasizing that there was no qualitative assessment of the expression at this stage of the analysis, stated that the essential question is what is the impugned expression about (para 5)? Whether a statement involves a matter of public interest is a question of mixed fact and law that merits a deferential standard of review (para 6).
The Court ruled that the appellant failed to identify any extricable errors of law or palpable and overriding errors of fact (para 7). The motion judge had determined that the complaints reflected a private dispute with no real impact on others. The company provided a specialized service to a small number of customers and did provide services to the public (para 8-9). The Court found that in these circumstances it was open to the judge to conclude the employee review was not a matter of public interest.
The Court of Appeal further stated that in some cases employee speech about workplace issues may be a matter of public interest. However, just because other cases have decided that similar reviews were in the public interest, this does not mean that each one will be. The burden is on the moving party to establish this (para 10-11).
The appeal was dismissed.