Canada: Employer Not Vicariously Liable For Claim Of Defamation Brought By Former Unionized Employee

Previously printed in the LexisNexis Labour Notes Newsletter.

In Pereira v. Dexterra Group Inc., 2022 BCSC 1481, the B.C. Supreme Court dismissed a claim of defamation brought by a unionized employee in respect of conduct occurring before and after the termination of her employment.

Facts

The defendant, Dexterra Group Inc., is the parent company of Horizon North Camps & Catering Partnership ("Horizon"), which is in the business of providing accommodation and catering services at remote work camps.

The plaintiff was employed by Horizon, and worked at one of its lodges in Kitimat, British Columbia. Her employment was subject to a collective agreement.

In May 2020, several of the plaintiff's co-workers complained to Horizon about her work ethic and behaviour. She was issued by Horizon with a verbal warning. She was then issued with a three-day unpaid suspension for a separate incident. Her union, Unite Here, Local 40 (the "Union") grieved the suspension. She then took a leave of absence from work.

While the plaintiff was on leave, the defendant alleged that she sent harassing e-mails to management and employees of Horizon and the defendant. Her employment was terminated for violation of the employer's respectful workplace policy, which had been implemented in the exercise of management rights.

The Union grieved the termination and the matter was resolved by way of a settlement between the parties.

The plaintiff, however, then commenced several legal proceedings against both the Union and the defendant. This included two attempts to pursue a court action on the basis that the defendant was vicariously liable for defamatory statements about the plaintiff allegedly made by its employees. The first action was dismissed for lack of jurisdiction and abuse of process. The second action differed slightly from the first: it concerned statements allegedly made about the plaintiff during her employment with Horizon (by her fellow employees and in the employer's termination letter) and statements made by a former co-worker after the termination of the plaintiff's employment.

Issues and Findings

In a preliminary application, the defendant sought an order that the Court lacked jurisdiction over the defamation claims.

The Court considered the plaintiff's pre-termination and post-termination allegations of defamation separately.

For the pre-termination allegations, the Court considered Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and the cases which follow it, to determine whether the allegations, in their essential character, arose out of the interpretation, application, administration or violation of the collective agreement. The Court held that the parties had relied on the collective agreement to resolve disputes between them, and the "essential character" of the communications at issue fell clearly within the ambit of the collective agreement because they concerned the plaintiff's job performance and misconduct. The Court accordingly concluded that it lacked the jurisdiction to hear that part of the plaintiff's claim. The Court also found that the issues were known to the plaintiff at the time she commenced her action, and the plaintiff was therefore barred from pursuing them on the basis of abuse of process and by the doctrine of res judicata.

For the post-termination allegations, the plaintiff claimed that although her former co-worker made the comments while on layoff, the co-worker remained an employee at the time and the defendant was therefore vicariously liable for her conduct. The Court reaffirmed the well-established principle that an employer is not vicariously liable for the post-termination tortious actions of a former employee, and applied this in the context of an employee on layoff. As the co-worker was not actively employed by Horizon at the time of the alleged defamation, and in light of the absence of any connection between the co-worker's comments and Horizon in the pleadings, the Court concluded that the plaintiff's claim of vicarious liability against the defendant did not disclose a triable issue and should be dismissed.

Takeaways for Employers

This decision reminds employers that unionized employees may be precluded from pursuing claims of defamation against employers or individual employees in court by operation of the collective agreement. Also, the difficulty of establishing the vicarious liability of an employer for the alleged defamatory statements of an employee on layoff should provide some reassurance to employers.

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