No defamation during employment standards proceedings: Court

Employer’s allegations of fraud, dishonesty during employment standards hearing subject to absolute privilege to encourage ‘forthrightness’
|employmentlawtoday.com|Last Updated: 08/31/2012

Employers who make allegations against an employee in an employment standards complaint are protected against a defamation lawsuit, the Ontario Superior Court of Justice has ruled.

An Ontario employer faced a claim under the Ontario Employment Standards Act, 2000, from a former employee for unpaid public holiday and overtime pay over the course of the employee’s eight years of employment from 2002 to 2010. The claim was for $8,752.12, but an employment standards officer found the employer was liable for $2,790.24 and ordered the employer to pay that amount.

During the hearing with the employment standards officer, the employer made allegations of fraud and dishonesty against the former employee. As a result, the former employee filed a defamation lawsuit, claiming the employer’s accusations injured his psychological and emotional health. The former employee also sued for the remainder of the amount claimed for holiday and overtime pay.

The court found that employment standards officers operate in a quasi-judicial function and are the first line of adjudication for employment standards complaints. Therefore, statements made in the course of a proceeding with an officer, as with any court, tribunal, or other decision-making body, are subject to absolute privilege and cannot be actionable themselves.

“Counsel for the (employer) makes the point that the very same policy reasons for applying a rule of absolute privilege in the litigation context -- encouraging forthrightness and a full airing of all issues and claims by the parties -- applies to an ESA investigation and proceeding,” said the court. “The case law makes it clear that for ‘statements made in the course of a judicial proceeding or a statutory board or tribunal, absolute immunity applies even if the words are spoken maliciously, without justification or excuse from ill will or anger.’ (Muir v. McRoberts, 2008 CarswellOnt 8562 (Ont. S.C.J.).”

For more information see:

·Satkunan v. Gnanatheepam, 2012 CarswellOnt 10099 (Ont. S.C.J.).

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