In Franchuk v Schick, 2014 ABQB 249, Justice Lee of the
Court of Queen's Bench of Alberta assessed whether a sexual
harassment complaint made in 2004 by the Defendant
("Schick"), about the Plaintiff ("Franchuk"),
was defamatory. Schick, the sole administrator of the Lakeland
Rural Electric Association ("REA"), claimed that
Franchuk, a Director for REA, sexually harassed her when he
allegedly told her that he would "take her out" or that
he would "do more than discuss work." In response to
these advances Schick approached the President of the REA for
assistance. Upon the President's request for a written
complaint Schick sent the Board of Directors a letter outlining the
alleged sexual harassment. Franchuk later began an action claiming
$10,000 in damages against Schick on the basis that the letter was
false and defamatory.
Analysis: Three Requirements for Defamation Claims
The Court outlined what is required to obtain damages for
1. That the impugned words were defamatory. This means that a
"reasonable" person would find that the impugned words
lowered or discredited the Plaintiff's reputation;
2. That the words in fact referred to the Plaintiff; and
3. That the words were published (communicated to one or more
people other than the Plaintiff).
To fulfill these requirements the Plaintiff is not required to
show that the Defendant meant to do them any harm, or even that the
Defendant was careless in their actions. The Court found that the
Plaintiff did make out the three elements required for defamation,
and thus turned to the Defendant for her defense.
The Scope of Qualified Privilege as a Defamation Defense
Schick raised two defenses to the defamation action: truth of
the statements and qualified privilege. The Court concluded that
there was little evidence, other than Schick's word, that the
events actually happened, and therefore could not determine whether
or not the statements were true. Schick also raised the defense of
"qualified privilege", which means that the occasion in
which she made the statements protects their defamatory nature. In
Adam v Ward,  A.C. 309 (H.L.), it was explained that
such an occasion is one where the individual making the statement
has a legal, social, or moral duty to make it, and in turn that the
person who receives the statement has a corresponding interest or
duty to receive it. If the occasion is in fact proven to be
privileged than the Defendant is allowed to publish otherwise
defamatory remarks. However, if the Plaintiff can show that the
motive behind the statements was malicious or dishonest, qualified
privilege will be found not to apply.
Ultimately, the Court found that Schick, being under instruction
from the President, had a qualified interest to make her complaint
in writing to the Board of the Directors and that the Board in turn
had the duty to receive it. As malicious or dishonest intent could
not be proven the Court accepted Schick's defense of qualified
privilege and she was found not liable for any damages.
Note to Employers
Although the decision suggests that complaints made in
accordance with internal procedure will be protected by qualified
privilege, employers should ensure that the receipt of such
complaints are treated in the utmost confidence, and disseminated
only to those who have a duty to receive it.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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