I would like to comment on an interesting recent Ontario case involving the intersection of 3 areas of law:
- Employment law
- Defamation law
- Public policy/procedural law
The case is Joshi v Allstate Insurance.
Ms. Joshi sued Allstate for alleged wrongful dismissal and included some claims in lawsuit about alleged Human Rights Code breaches.
Her lawyer released a news statement about her lawsuit.
Then, CBC interviewed her about the lawsuit.
Allstate counter attacked and added a counterclaim to its Statement of Defence. The counterclaim alleged defamation for what she said through her lawyer’s press release and what she said on CBC.
Defamation law has essentially two layers of defences available to the person who uttered and or typed the words that are alleged to be defamatory. The first layer is either proving “truth of the words” at trial or proving at trial that the words were issued in a privileged way. An example of the latter is that one cannot be sued for what one says in a Statement of Claim in court, even though one normally be successfully sued for repeating those words outside of a courtroom unless the trial judge has ruled in one’s favour. The second layer of defences are called “qualified defences” and essentially protect the speaker unless the trial judge finds that the speaker was motivated by malice.
One would think all of the above noted defences or qualified defences are things that should be left to a trial judge to decide.
However, in the Joshi v Allstate case, Ms. Joshi was able to get the counterclaim dismissed well before trial using a new provision in the rules of procedure with the interesting acronym of “SLAPP.”
SLAPP stands for “strategic litigation against public participation” and was designed to protect public protest groups from being unfairly targeted by lawsuits by entities such as large, wealthy polluters.
Ms. Joshi was able to fit into the definition of “public” by the fact that her Statement of Claim alleged she was fired because she complained about alleged postal code discrimination by her employer- i.e. human rights violations for the provision of insurance services.
I strongly suspect that this case will make its way to the Ontario Court of Appeal, which will give us some guidance of the ambit of SLAPP.
That decision would then give a lot of guidance to employment and defamation lawyers. Historically, Canadian lawyers have been loath to give press conferences about unproven allegations in Statements of Claim, because they can become a witness to the proceeding and can actually become a party to the proceeding. Either of those scenarios should prevent the lawyer from continuing to act for his client. I am very curious why that did happen in this case.
Stay tuned for further comments on this case!