Is the report of an investigator hired to investigate allegations of workplace harassment shielded by the doctrine of qualified privilege?
In Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86 (CanLII), the Court of Appeal for Ontario confirmed that it is.
Dr. Anahita Safavi-Naini, the “appellant” was a medical resident in the internal medicine training program at the Northern Ontario School of Medicine (“NOSM”).
Katherine Montpetit, a respondent, is a senior investigator with expertise in sexual violence and sexual harassment investigations with the law firm Rubin Thomlinson LLP, the other respondent.
The respondents were retained by NOSM in 2018 to investigate Safavi-Naini’s complaints of workplace harassment and sexual harassment. The complaints primarily concerned Dr. Stephane Gauthier, the North Bay site director of NOSM’s internal medicine program at the time of the complaints, but also raised concerns about Dr. Scott Shulman, a NOSM faculty member.
The inquiry was required under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. Ms. Montpetit acted as the inquiry officer for the investigation and was responsible for preparing a report for NOSM.
On March 14, 2019, Ms. Montpetit submitted her report, as well as two Executive Summaries, concerning the conduct of Dr. Gauthier and Dr. Shulman to NOSM.
The Executive Summaries form the basis for the appellant’s underlying defamation action.
The essence of these summaries is:
Summary Concerning the Conduct of Dr. Gauthier (the “Gauthier Summary”): The appellant did not provide a detailed interview or evidence in support of her allegations. Ms. Montpetit “preferred Dr. Gauthier's version of events to that of [Dr. Safavi-Naini]” and she found that Dr. Safavi-Naini was not a credible or reliable witness. As a result, Ms. Montpetit concluded that she did “not find that Dr. Gauthier behaved in the manner alleged by [Dr. Safavi-Naini]” or that he “engaged in sexual harassment towards [Dr. Safavi-Naini] or otherwise breached NOSM policy”.
Summary Concerning the Conduct of Dr. Shulman (the “Shulman Summary”): The appellant did not provide a detailed interview or evidence in support of her allegations. Each allegation was addressed separately. First, the appellant alleged that Dr. Shulman entered into a bet with Dr. Gauthier to “loosen up” Dr. Safavi-Naini. Ms. Montpetit found that there was no bet. She based this conclusion on Dr. Safavi-Naini's undermined credibility, the absence of detailed documentary evidence, and Dr. Safavi-Naini's acknowledgment in communications that her knowledge of the bet was hearsay. Second, Dr. Safavi-Naini alleged that she entered into a sexual relationship with Dr. Shulman. Based on the evidence, Ms. Montpetit concluded that Dr. Safavi-Naini was flirting with Dr. Shulman and that they did not have a romantic relationship. Third, Dr. Safavi-Naini alleged that Dr. Shulman shared sexually explicit conversations with Dr. Gauthier. Ms. Montpetit concluded that this may have been discussed in the context of the resident’s performance and, thus, would not have been inappropriate or outside of their supervisory duties.
The Executive Summaries were provided to two staff members at NOSM and NOSM’s lawyer. Dr. Gauthier and the appellant received the Gauthier summary, but only Dr. Shulman received the Shulman summary. The summaries were not publicly disseminated. However, they were ultimately filed with the Human Rights Tribunal of Ontario as part of Dr. Gauthier’s defence to the appellant’s application to that tribunal.
Before the inquiry was commenced, the appellant hired a publicist and issued a press release, which ultimately resulted in her allegations being seen by the public, in the press and other media.
In March 2021, Dr. Safavi-Naini commenced an action against the investigators, Ms. Montpetit and the firm of Rubin Thomlinson LLP. In her Statement of Claim, she alleged that the two Executive Summaries were defamatory.
In response, Montpetit and the law firm brought a motion to dismiss the action pursuant to s. 137.1 of the Courts of Justice Act.
The motion judge, Justice Hugh R. McLean of the Superior Court of Justice, granted the motion and dismissed Dr. Safavi-Naini’s claim.
Justice McLean held:
- the summaries related to a matter of public interest;
- this was a situation of qualified privilege because of the social utility of NOSM receiving frank communication about an important topic;
- there was no evidence to support a finding of malice against Ms. Montpetit; and
- a balancing exercise favoured protection of the expression.
Dr. Safavi-Naini appealed.
Decision of the Court of Appeal for Ontario
The Court of Appeal for Ontario (MacPherson, Hoy and Coroza JJ.A.) provided the following reasons for its decision to dismiss the appeal:
 The respondents were retained to investigate allegations of workplace harassment and to prepare investigation reports for NOSM, as required under s. 32.0.7 of OHSA. Moreover, pursuant to s. 32.0.7(1)(b) of OHSA, NOSM had a legal duty to provide, in writing, the results of the investigation, and any corrective action taken, to the complainant and her alleged harassers.
 In Bent v. Platnick, 2020 SCC 23, the Supreme Court of Canada said, at para. 121, that qualified privilege exists “if a person making a communication has an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or duty to receive it”. The respondents had a duty to NOSM to complete the investigation and to provide their report to NOSM, and NOSM had a corresponding interest or duty to receive it. The respondents’ provision of the Executive Summaries to NOSM’ falls squarely within this privilege.
For the sake of completeness, I will also confirm that the ONCA found that the matter was properly dismissed pursuant to CJA, 137.1.
Have a workplace harassment issue? Need a policy with respect to workplace harassment? Need someone to conduct an investigation into incidents and complaints of workplace harassment (or just want some guidance and advice on how to do one in-house)? Call me. Email me. Do what works for you.
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Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He is also a part-time professor at Algonquin College teaching Employment Law and has previously taught Trial Advocacy for Paralegals and Small Claims Court Practice.
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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