In Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, the Ontario Court of Appeal (“ONCA”) dismissed the appellant’s appeal from a decision of the motion judge of the Ontario Superior Court of Justice, in which the motion judge denied the appellant’s request to dismiss the respondent’s defamation action under s. 137.1 of the Courts of Justice Act (“Act”), known as the “anti-SLAPP” provision of the Act.
The appeal mainly focused on whether an anonymous workplace review by an employee about his/her employer relates to a matter of public interest as required by s. 137.1(3) of the Act.
The ONCA opined that on such motions, “expression is to be assessed as a whole”. As such, the question is whether: “some segment of the community would have a genuine interest in receiving information on the subject”. The court must ask: “Understood in its context, what is the impugned expression really about”?
The motion judge determined that the subject review “concerned an individual’s complaints about such things as the respondent company’s pay and benefit levels, work requirements, and the company’s infrastructure”, which are complaints that reflect a “private dispute with no real impact on others”.
The company was not engaged in providing services to the public, and only provided its services to a small number of customers.
The ONCA conceded that what constitutes the “public interest” is to be interpreted broadly, but advised that “not everything in which some members of the public are interested is a matter of public interest”.
Further, the question of whether a particular expression relates to a matter of public interest is one that “attracts a deferential standard of review”. As such, the ONCA upheld the motion judge’s decision, finding that in the circumstances of the case, “it was open to the motion judge to conclude that the employee review did not relate to a matter of public interest”.
The decision is interesting as there are quite a few decisions finding that reviews of a business are a matter of public interest.
The ONCA left it open for courts to find in other cases that “employee speech about workplace issues…[is] a matter of public interest” and advised that in every case the burden is on the moving party “to establish that its expression relates to a matter of public interest”.
To learn more, see our online defamation webpage, our online takedown webpage, our injunction webpage and our other blogs on defamation related matters.
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