Employee review of employer does not necessarily relate to public interest: Ontario Court of Appeal

A judge need not determine that expression about workplaces is a matter of public interest just because in certain circumstances consumer reviews of businesses are public interest matters, the Ontario Court of Appeal has said.

In Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391, the appellant’s website published an anonymous critical review by John Doe. The article was about his employer, the respondent company in this case. The respondent filed a defamation action against the appellant under s. 137.1 of Ontario’s Courts of Justice Act. The appellant asked the court to dismiss the respondent’s action.

The motion judge denied the appellant’s request. He found the following:

• The review pertained to an individual’s complaints about matters including the respondent’s pay and benefit levels, work requirements, and infrastructure
• These complaints reflected a private dispute with no real impact on others
• The respondent provided specialized services to a small number of customers, not to the public.

The appellant disagreed with the judge’s determination that the expression did not relate to a public interest matter as s. 137.1(3) required. The appellant argued that this was a workplace review and not a private dispute between two parties. Lastly, the appellant contended that employee reviews of employers and working conditions posted on a public site were of public interest to a public segment, namely potential employees.

The Ontario Court of Appeal dismissed the appeal. The motion judge provided brief but adequate reasons and was entitled to conclude that the employee review did not involve a matter of public interest, the appellate court said.

Given his finding on the public interest threshold question, the judge did not need to proceed to the merits-based hurdle under s. 137.1(4)(a) and the public interest weighing exercise under s. 137.1(4)(b), the appellate court held.

In some cases, an employee’s speech about workplace issues may be a public interest matter, but in each case the moving party has the burden of establishing that its expression pertains to a matter of public interest, the appellate court noted.

The court should assess the particular expression in dispute, not the expression’s topic, to decide whether the expression relates to a public interest matter, the appellate court concluded.