It often happens: in an Employment Standards complaint, the employer and the employee give negative comments about each other, which may well be considered defamatory in nature. After the employment standards issue was resolved, can a party sue the other in civil courts?
In Satkunan v. Gnanatheepam et al., 2012 ONSC 4654, Justice E.M. Morgan of the Ontario Superior Court suggested the answer is no. In that case, the employee filed a complaint with the Ontario Ministry of Labour claiming that the employer failed to pay public holiday pay and overtime pay. The Employment Standards Officer ordered that the employer pay compensation, and the employer complied.
The employee later sued the employer for defamation in the civil court, claiming that allegations of fraud and dishonesty made by the employer to the Employment Standards Officer during the ESA proceeding were injurious to the employee’s emotional and psychological health.
The defendant employer brought a motion to strike out the statement of claim, citing that the suit was frivolous and vexatious. In rendering the decision, Justice Morgan noted that the employment standards complaint proceeding is a quasi-judicial process. Statements made in the course of such a proceeding, just as before other boards or tribunals, were “absolutely privileged”. Consequently, these statements cannot form the basis for a defamation lawsuit.
The employee’s legal claim was therefore struck out. It should be noted that only statements made in the quasi-judicial setting are privileged. Each party, when faced with a legal claim by someone else, may state their position, including negative perceptions of the other party, fully and frankly in the proceeding without attracting liability for defamation.
It will be a totally different question as to negative statements made outside such a setting, which may well form the basis of a defamation lawsuit.