If you don't have anything nice to say about your employer, don't say anything at all -- especially if it isn't true

We have all heard the story: the disgruntled former employee badmouthing the company he or she used to work for to anyone who will listen. However, in the social media era, the negative effect of such an employee’s tirades can be amplified, leaving employers frustrated and watching their reputation taking an undeserved hit in the public eye. Fortunately, employers do have some recourse, as the Ontario Superior Court found in L'association pour l'intégration sociale d'Ottawa c. Casimir.

In Casimir, the former employee published a number of statements on social media and in street protests accusing her employer (AISO) – and in particular some former colleagues – of racism and dishonesty. The employer and the two affected employees responded by bringing defamation proceedings, using the summary judgment procedure to obtain a ruling that included compensatory damages and an injunction requiring the employee to delete the defamatory statements and to refrain from making defamatory statements in future.

In order to understand how the court came to rule this way, a brief recount of the facts is in order:

• After her grievance related to her 2015 dismissal was dismissed at arbitration in February 2017, Casimir began a campaign that included more than 20 live protests at AISO’s offices where she held signs and shouted messages through a megaphone. Among the messages were:
  • “Justice for Marlene – AISO”
  • “No reprisals – racism”
  • “Stop the falsifications”
  • “Fraudsters”
• Due to clients and employees feeling threatened, AISO spent over $3,000 on security measures to improve safety
• Casimir printed leaflets and sent emails to AISO employees accusing AISO and her union of “discrimination, harassment, racism and injustice.” She also posted several messages to Twitter, accessible to the public, including:
  • OTTAWA ASSOCIATION FOR SOCIAL INTEGRATION: an institution where harassment, injustice, discrimination and racism reign. The evidence shows that the directors and supervisors are uninformed leaders who are terrifying weapons for the employees.
  • AISO and CUPE, two Canadian institutions, used THE WEAPONS of ruse, lies, traps and intimidation to KILL ME, dismiss me, take away my livelihood and make my family suffer. THIS IS VIOLENCE AND RACISM.
  • One of your employees used disrespectful language towards me and like DONALD TRUMP you have become amnesic. RACISTS
• Casimir ignored various demands to cease and desist

The test for defamation

When deciding in favour of AISO and the two defamed employees, the court set out the test for defamation, as previously articulated by the Supreme Court of Canada in the 2009 case of Grant v. Torstar Corp., stating that a plaintiff must prove that the statements made:

• Tended to harm the plaintiff's reputation in the eyes of a reasonable person
• Referred to the plaintiff
• Were published, in the sense that they were communicated to at least one person other than the plaintiff.

The result

Although Casimir tried to argue the defence of justification (i.e. that her statements were true), the court found that she had presented no evidence to corroborate her allegations.

Given both the finding that she would be unlikely to be able to pay damages to the plaintiffs and that her course of conduct suggested she would continue on her campaign against AISO, the court found that an injunction was also warranted, stating:

"Despite the demands to stop publishing the defamatory statements, [Casimir] continued with her actions. She continued to demonstrate contempt in writing new e-mails and in publishing new statements on Twitter. She admits in her defence that following her receipt of a notice requiring her to delete all defamatory content and to cease publication of defamatory statements about the plaintiffs, she did not change her behaviour at all. Nothing indicates that she intends to modify her behaviour now. Regarding the possibility of compensation by the defendant, she admits in her affidavit that she "live(s) in poverty."

Employers should take heart from this decision: you are not powerless to stop that resentful/spiteful/angry ex-employee. Note only that the test for defamation is an objective one: defamation only occurs if it is clearly false and harmful on the meaning that “a reasonable and right-thinking person, rather than someone with an overly fragile sensibility, would have understood from the words.” 

For more information see:

• L'association pour l'intégration sociale d'Ottawa c. Casimir, 2018 ONCS 4754 (Ont. S.C.J.).

• Grant v. Torstar Corp., 2009 SCC 61 (S.C.C.).

Kelsey Orth is a partner with CCPartners in Brampton, Ont., practicing employment and labour law. He can be reached at (905) 874-9343 ext. 225 or [email protected].