In the recent decision of Echelon Environmental Inc. -and- Glassdoor Inc. 2022 ONCA 391 of the Ontario Court of Appeal, the appellant, Glassdoor Inc. (“Glassdoor”), brought an appeal of the order of Justice Dow of the Ontario Superior Court that dismissed Glassdoor’s request to dismiss the respondent Echelon Environmental Inc.’s (“Echelon”) defamation action under s. 137.1 of the Courts of Justice Act, (“CJA”) R.S.O. 1990, c. C. 43 (“Decision”). Section 137.1 of the CJA is known as Ontario’s “anti-SLAPP” legislation. Simply put, SLAPP stands for “Strategic Lawsuits Against Public Participation.” It occurs where a person, who is subject to public criticism by another, sues that person in an effort to limit or silence the public criticism.
The background of this case is that an anonymous poster, identified as a former employee of Echelon, posted a negative review of Echelon on Glassdoor’s website. Glassdoor is a career website that offers potential employees information including employer company ratings and reviews. The review of the anonymous poster included complaints about Echelon’s pay and benefits, work requirements and infrastructure. In response, Echelon sued both Glassdoor and the anonymous poster for defamation.
Glassdoor argued that the Decision was flawed because the motion judge had erred in finding that the expression at issue (the publication of the review) did not relate to a matter of public interest. Section 137.1(3) of the CJA sets out that on a motion a judge shall dismiss a proceeding against a person if the person can satisfy the judge that the proceeding arises from an “expression made by the person that relates to a matter of public interest.”
Glassdoor went on to argue that a workplace review is in fact a matter of public interest because the review was put on a public website that is of interest to potential employees. Further, Glassdoor also pointed out that there should be no meaningful distinction between a review from a customer of a business, which in the past has been held to be a matter of public interest, and employee reviews of employers’ workplace
The Ontario Court of Appeal did not agree with Glassdoor’s arguments and dismissed the appeal.
First, the Ontario Court of Appeal set out that it is well established that on a motion under s. 137.1 of the CJA, expression must be assessed as a whole. Further, the Court of Appeal goes on that although public interest is to be interpreted broadly, not everything in which some members of the public are interested will be public interest for the purposes of s. 137.1 CJA. As such, the essential question is, what is the impugned expression really about in a particular case?
The Ontario Court of Appeal agreed with the Decision that the employee review at hand did not relate to a matter of public interest. Echelon does not provide broad services to the public but only specialized services to a small number of customers. The Ontario Court of Appeal did acknowledge that in other cases, employee speech about other workplaces may in fact be a matter of public interest. Whether or not a particular workplace expression relates to a matter of public interest is determined by consideration of the particular expression in question, not the topic of that expression. Basically, context is key in determining whether workplace expression is a matter of public interest.
The decision of the Ontario Court of Appeal to deny the appeal was a reasonable one. The fact is that not every public statement is a matter of public interest. The nature of this inquiry is fittingly contextual. Employers should have some recourse if an employee posts a negative review that they believe is defamatory. As the Ontario Court of Appeal acknowledges, not every statement made publicly will be a matter of public interest. The court needs to look at the expression as a whole to get an idea of what it is about and whether or not it is in fact a matter of public interest.
This case certainly does not limit any future employer from being subject to s. 137.1 of the CJA as the appeal and superior courts both set out that this particular employer’s customers and business were limited and on a somewhat small scale. We can make an educated guess that as the employer becomes larger with more access to the public, the more s. 137.1 CJA may come into play, as the more there will be the risk that critical statements from employees either current or former made publicly will, in fact, become a matter of public interest.